Constitutional Law
Espinoza v. Montana Department of Revenue
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The Religion Clauses of the Constitution have proven difficult for the Supreme Court to untangle. Critics of the Courtâs fractured Religion Clauses jurisprudence have argued for decades that it is âshallow, inconsistent, and nonpersuasiveâ1×1. William P. Marshall, Truth and the Religion Clauses, 43 DePaul L. Rev. 243, 243 (1994); see also id. at 243 n.2 (listing several critics of Religion Clauses jurisprudence). â even that âthe net contribution of the Courtâs precedents toward a cohesive body of law . . . has been zero.â2×2. Rex E. Lee, The Religion Clauses: Problems and Prospects, 1986 BYU L. Rev. 337, 338. âIndeed, some would say that it has been less than zero . . . .â Id. But be it ever so slowly, the Court may be inching toward a more consistent approach. Last Term, in Espinoza v. Montana Department of Revenue,3×3. 140 S. Ct. 2246 (2020). the Supreme Court held that a provision of the Montana state constitution, as applied to exclude religiously affiliated schools from a state tax credit scholarship program, violated the Free Exercise Clause. In an area of the law saturated with vague standards, Espinoza offers a clear, workable rule for cases involving government benefits to religion and provides a model of clarity for future Religion Clauses cases.
To incentivize taxpayers to fund educational institutions, the Montana legislature enacted a Tax Credit Program in 2015.4×4. See Espinoza v. Mont. Depât of Revenue, 435 P.3d 603, 606 (Mont. 2018). Taxpayers who donated to a qualifying scholarship organization would receive a matching tax credit for up to $150,5×5. Mont. Code Ann. § 15-30-3111(1) (2019). The program also granted a similar tax credit for donations made to public schools. See id. § 15-30-3110(1). and scholarships could be used by recipients at any private âqualifying education providerâ in the state.6×6. Espinoza, 435 P.3d at 605; see also id. at 606â07. Most of the qualifying education providers were religiously affiliated.7×7. Id. at 607. A no-aid provision in the Montana Constitution, however, prohibits the legislature from making âany direct or indirect appropriation or payment . . . for any sectarian purpose or to aid any . . . institution[] controlled in whole or in part by any church, sect, or denomination.â8×8. Mont. Const. art. X, § 6. The Montana Department of Revenue, believing that the Tax Credit Program violated this no-aid provision, administered the program by promulgating a new rule (Rule 1).9×9. Espinoza, 435 P.3d at 607; see also Mont. Admin. R. 42.4.802 (2020). Rule 1 would exclude âsectarian institution[s],â as defined by the no-aid provision, from the definition of âqualified education providerâ10×10. Admin. 42.4.802. and therefore (the Department hoped) harmonize the Tax Credit Program with the state constitution.
Three parents of students attending Stillwater Christian School, a religiously affiliated qualified education provider11×11. See Mont. Code Ann. § 15-30-3102(7) (2019). excluded under Rule 1, brought suit in state court.12×12. Espinoza, 140 S. Ct. at 2252. They argued that Rule 1 was not only unconstitutional under the federal and state Free Exercise Clauses, but also unnecessary because the Tax Credit Program had been constitutional to begin with.13×13. Espinoza, 435 P.3d at 608. The trial court agreed with the second of these arguments at summary judgment.14×14. See id. Because the Tax Credit Program âconcern[ed] money that is not in the treasury and not subject to expenditure,â the court reasoned, it was not an appropriation or payment for the purposes of the no-aid provision.15×15. Id. (alteration in original) (quoting Espinoza v. Mont. Depât of Revenue, No. DV-15-1152C, slip op. at 6 (Dist. Ct. Mont. May 23, 2017)). Enjoining Rule 1, the court reinstated religious private schools as potential scholarship recipients.16×16. Espinoza, 140 S. Ct. at 2252.
The Montana Supreme Court reversed.17×17. Espinoza, 435 P.3d at 615. Writing for the majority, Justice McKinnon18×18. Justice McKinnon was joined by Chief Justice McGrath and Justices Shea, Sandefur, and Gustafson. explained that Montanaâs no-aid provision âbroadly and strictly prohibit[ed] aid to sectarian schoolsâ19×19. Espinoza, 435 P.3d at 611. and âfiercely protectedâ the separation of church and state.20×20. Id. at 614. The Tax Credit Program clearly fell within the provisionâs purview by âpermit[ting] the Legislature to indirectly pay tuition at private, religiously-affiliated schools.â21×21. Id. at 612. Rule 1 could not save the program because the Department of Revenue exceeded its rulemaking authority in attempting to rewrite the statutory definition of qualifying education providers.22×22. See id. at 614. The court acknowledged that Montanaâs no-aid provision might run afoul of the federal Free Exercise Clause in some cases, but â over two dissenting votes23×23. Justice Baker, joined by Justice Rice, argued that â[o]nly an analysis of both [the no-aid provision] and the Free Exercise Clauseâ could sustain the majorityâs conclusions. Id. at 630 (Baker, J., dissenting). âconcluded that âthis [wa]s not one of those cases.â24×24. Id. at 614 (majority opinion). Because the Tax Credit Program could ânot, under any circumstance, be construedâ as constitutional under the no-aid provision,25×25. Id. at 613. the court struck it down in its entirety.26×26. See id. at 615.
The U.S. Supreme Court reversed and remanded.27×27. Espinoza, 140 S. Ct. at 2263. Writing for the majority, Chief Justice Roberts28×28. Chief Justice Roberts was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. held that the Montana Supreme Courtâs application of the state constitutionâs no-aid provision violated the federal Free Exercise Clause.29×29. See Espinoza, 140 S. Ct. at 2262. The majority viewed Trinity Lutheran Church of Columbia, Inc. v. Comer30×30. 137 S. Ct. 2012 (2017). as binding precedent because, like Espinoza, it âturn[ed] expressly on religious status and not religious use.â31×31. Espinoza, 140 S. Ct. at 2256. Building on its previous holding in Trinity Lutheran and rejecting the flexible balancing tests advocated by Justices Breyer and Sotomayor in dissent,32×32. See id. at 2259â60. the Court announced a âstraightforward ruleâ to govern its Free Exercise cases moving forward: âWhen otherwise eligible recipients are disqualified from a public benefit âsolely because of their religious character,â we must apply strict scrutiny.â33×33. Id. at 2260 (quoting Trinity Lutheran, 137 S. Ct. at 2021). Because the Montana Supreme Court had based its invalidation of the Tax Credit Program on state law that âexpressly discriminate[d] on the basis of religious statusâ contrary to the First Amendment, that decision could not survive such scrutiny.34×34. Id. at 2262.
Justice Thomas concurred, writing separately to address the Courtâs Establishment Clause jurisprudence â a âbrooding omnipresenceâ over Free Exercise cases such as Espinoza.35×35. Id. at 2263 (Thomas, J., concurring) (quoting S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting)). Justice Thomas was joined by Justice Gorsuch. Justice Thomas argued that the Courtâs Establishment Clause doctrine is âunmoored from the original meaning of the First Amendment.â36×36. Id. In his view, the clause âdoes not prohibit States from favoring religionâ and likely cannot be incorporated against them at all.37×37. Id. at 2264. The Courtâs failure to recognize this had produced an âunfortunate tendencyâ to preference other constitutional rights above the right to free exercise of religion,38×38. Id. at 2267. but a proper understanding of the Establishment Clause would encourage ârobust and lively debate about the role of religion in government . . . at the state and local levelâ39×39. Id. at 2266. and âallow[] free exercise of religion to flourish.â40×40. Id. at 2267.
Justice Alito concurred.41×41. Id. (Alito, J., concurring). Pointing to the Courtâs recent decision in Ramos v. Louisiana,42×42. 140 S. Ct. 1390 (2020). he criticized the majorityâs failure to weigh the âoriginal motivationâ underlying Montanaâs no-aid provision in Espinoza.43×43. Espinoza, 140 S. Ct. at 2268 (Alito, J., concurring). No-aid provisions, often called âBlaine Amendmentsâ after the congressman who inspired them, were originally enacted out of âvirulent prejudice against immigrants, particularly Catholic immigrants.â44×44. Id. While the majority noted that such provisions were âborn of bigotryâ and shared a âshameful pedigreeâ of intolerance, it did not rely on that logic. Id. at 2259 (majority opinion) (quoting Mitchell v. Helms, 530 U.S. 793, 828â29 (2000)). For a discussion of the sordid history behind Blaine Amendments, see generally Richard W. Garnett, The Theology of the Blaine Amendments, 2 First Amend. L. Rev. 45 (2003). While Montana had argued that its no-aid provision was âcleansed of its bigoted past because it was readopted for non-bigoted reasonsâ in a 1972 constitutional convention,45×45. Espinoza, 140 S. Ct. at 2273 (Alito, J., concurring). Justice Alito quoted Ramos in concluding that it remained ââ[t]etheredâ to its original âbiasââ because the state had not ââactually confront[ed]â the provisionâs âtawdry past in reenacting it.ââ46×46. Id. at 2274 (alterations in original) (quoting Ramos, 140 S. Ct. at 1410 (Sotomayor, J., concurring in part)).
Justice Gorsuch concurred, arguing that the Courtâs reliance on Trinity Lutheranâs status-use distinction was misguided.47×47. Id. at 2275 (Gorsuch, J., concurring). Pointing to statements made by both parties, he noted that the Court faced a ârecord replete with discussion of activities, uses, and conductâ rather than simply religious status.48×48. Id. But ultimately, Justice Gorsuch explained, this did not matter. The First Amendment must protect both religious status and religious conduct, as the Courtâs previous decisions attest.49×49. See id. at 2276. Only this interpretation truly guarantees the Constitutionâs rights to the people, for â[t]he right to be religious without the right to do religious things would hardly amount to a right at all.â50×50. Id. at 2277.
Justice Ginsburg dissented.51×51. Id. at 2278 (Ginsburg, J., dissenting). Justice Ginsburg was joined by Justice Kagan. She rejected the Courtâs reliance on Trinity Lutheran, arguing that the crucial element of âdifferential treatmentâ was missing from the equation in Espinoza.52×52. Id. at 2279 (emphasis omitted). The state courtâs remedy had treated religious and nonreligious schools equally, removing any burden that might previously have hindered the petitionersâ religious freedom.53×53. See id. The majority thus had erred in rejecting this remedy, which âmaintained neutrality between sectarian and nonsectarian private schoolsâ and ânever made religious schools ineligible for an otherwise available benefit.â54×54. Id. at 2280. Because all private school parents were âin the same boatâ once the Tax Credit Program had been struck down, the Montana Supreme Court had never violated the Free Exercise Clause.55×55. Id. at 2281.
Justice Breyer dissented.56×56. Id. (Breyer, J., dissenting). Justice Breyer was joined in part by Justice Kagan. He faulted the majority for âbarely acknowledg[ing]â the ââplay in the joints[]â between âwhat the Establishment Clause permits and the Free Exercise Clause compels.ââ57×57. Id. (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017)). Rather than applying Trinity Lutheran, he argued that Locke v. Davey58×58. 540 U.S. 712 (2004). was the controlling precedent; Locke held that a stateâs decision to not fund âdevotional degreesâ was neither forbidden by the Establishment Clause nor required by the Free Exercise Clause.59×59. Espinoza, 140 S. Ct. at 2283 (Breyer, J., dissenting). Justice Breyer advocated for a âflexible, context-specific approachâ over rigid application of strict scrutiny.60×60. Id. at 2288. Because controversies surrounding religion are particularly difficult to unravel, he reasoned, courts should avoid the âentanglementâ that inevitably results from rules-based jurisprudence and willingly engage in judicial balancing.61×61. Id. at 2290. Consistent with his approach in past cases, Justice Breyer urged the Court to accept the reality that there is âno test-related substitute for the exercise of legal judgment.â62×62. Id. at 2291 (quoting Van Orden v. Perry, 545 U.S. 677, 700 (2005) (Breyer, J., concurring in the judgment)).
Justice Sotomayor dissented.63×63. Id. at 2292 (Sotomayor, J., dissenting). Because the Montana Supreme Court invalidated the Tax Credit Program on state law grounds, she explained, the Court should not have reached the merits at all.64×64. See id. â[O]nly by setting aside well-established judicial constraintsâ in violation of federalism and the separation of powers65×65. Id. at 2297; see also id. at 2294. could the Court âtransform petitionersâ as-applied challenge into a facial oneâ by improperly deciding a federal constitutional question.66×66. Id. at 2294. The Court further erred by âreject[ing] the Religion Clausesâ balanced valuesâ67×67. Id. at 2297. and ârepris[ing its] error in Trinity Lutheran.â68×68. Id. at 2296. Justice Sotomayor urged the Court to grant the government âsome room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws,â including benefits.69×69. Id. (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2031 (2017) (Sotomayor, J., dissenting)); see id. at 2295â96.
The Courtâs ruling in Espinoza rejects the disjointed, aimless approach that has historically characterized Religion Clauses jurisprudence and instead offers a clear rule to be applied to future conflicts. The Courtâs Religion Clauses methodology has become remarkably convoluted over the years, and its byzantine analytical approach has yielded inconsistent, sometimes even contradictory, decisions. To clean up this mess, the Court could have abandoned the quest for a governing principle and decided that religion cases require judicial balancing. In Espinoza, however, it chose instead to solidify several past ambiguities into a simple, applicable rule: âWhen otherwise eligible recipients are disqualified from a public benefit âsolely because of their religious character,â we must apply strict scrutiny.â70×70. Id. at 2260 (majority opinion) (quoting Trinity Lutheran, 137 S. Ct. at 2021). If followed consistently, this clarifying, rules-based approach to Religion Clauses jurisprudence may yield more principled and coherent decisions moving forward.
For decades, the Courtâs doctrinal approaches to Religion Clauses cases have grown apart â and grown more confusing. Consider its handling of the Establishment Clause. After Everson v. Board of Education71×71. 330 U.S. 1 (1947). centered Establishment Clause doctrine around a metaphorical âwall between church and state,â72×72. Id. at 18; see also Richard H. Fallon, Jr., Tiers for the Establishment Clause, 166 U. Pa. L. Rev. 59, 90 (2017) (noting that âmany commentators view [Everson] as having initiated the modern era of Establishment Clause jurisprudenceâ). the Supreme Court began working tirelessly to strengthen that wall. But even as it did so â holding prayer in public schools,73×73. See Engel v. Vitale, 370 U.S. 421, 424 (1962). criminalization of teaching evolution,74×74. See Epperson v. Arkansas, 393 U.S. 97, 107 (1968). and state reimbursement of teachers in religious schools75×75. See Lemon v. Kurtzman, 403 U.S. 602, 613â14 (1971). to be unconstitutional â the Court realized that â[s]ome relationship between government and religious organizations is inevitable.â76×76. Id. at 614. It therefore developed âa farrago of unstable rules, tests, standards, principles, and exceptionsâ to navigate this relationship.77×77. Paul Horwitz, The Agnostic Age 223 (2011) (â[T]here are no . . . debates about the shape of current Establishment Clause doctrine. In this area . . . everyone can clasp hands in a spirit of togetherness. Everyone agrees that it is awful.â); see also Steven G. Gey, Reconciling the Supreme Courtâs Four Establishment Clauses, 8 U. Pa. J. Const. L. 725, 725 (2006) (â[T]he nine Justices have articulated ten different Establishment Clause standards.â). The Lemon v. Kurtzman78×78. 403 U.S. 602. test â requiring a government policy to have a âsecular purpose,â to neither advance nor inhibit religion, and to not âfoster âan excessive government entanglement with religionââ â is the best known of these rules.79×79. Am. Legion v. Am. Humanist Assân, 139 S. Ct. 2067, 2079 (2019) (quoting Lemon, 403 U.S. at 613); see also Gey, supra note 77, at 731. Widely maligned, the Lemon test has proven âunworkable in practiceâ and has been rejected or ignored by every Justice on the current Court.80×80. Am. Legion, 139 S. Ct. at 2101 (Gorsuch, J., concurring) (quoting Cnty. of Allegheny v. ACLU, 492 U.S. 573, 669 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part)). The Court excoriated the Lemon test in American Legion v. American Humanist Assân, 139 S. Ct. 2067. See id. at 2080â85 (majority opinion); The Supreme Court, 2018 Term â Leading Cases, 133 Harv. L. Rev. 242, 262 (2019) (pointing out that âall nine Justices . . . refused to apply the Lemon testâ in American Legion).
The Free Exercise Clause has fared no better. The Court established early on that the clause has boundaries,81×81. See Reynolds v. United States, 98 U.S. 145, 162â66 (1879). Reynolds also marked the judicial debut of the âwall of separation between church and Stateâ that would cause similar confusion in Establishment Clause jurisprudence. Id. at 164. but it has since struggled to define them. By the mid-twentieth century, it softened its initial holding that while laws âcannot interfere with mere religious belief and opinions, they may with practicesâ82×82. Id. at 166; see also Davis v. Beason, 133 U.S. 333, 342â43 (1890) (âHowever free the exercise of religion may be, it must be subordinate to the criminal laws of the country . . . .â). and instead began to apply strict scrutiny to decide Free Exercise cases.83×83. See Emp. Div. v. Smith, 494 U.S. 872, 894â95 (1990) (OâConnor, J., concurring) (collecting cases including, inter alia, Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Sherbert v. Verner, 374 U.S. 398, 403 (1963)). Under strict scrutiny, the government must âjustify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.â Id. at 894. In Employment Division v. Smith,84×84. 494 U.S. 872. however, the Court pivoted again, holding that âneutral, generally applicable law[s]â are not subject to strict scrutiny85×85. Id. at 881; see also id. at 885. â an exception that âalmost swallows the general rule.â86×86. Russell W. Galloway, The Free Exercise Clause After Smith II, 31 Santa Clara L. Rev. 597, 600 (1991). The Court fiercely resisted an attempt to legislatively override Smith via the Religious Freedom Restoration Act of 1993,87×87. 42 U.S.C. §§ 2000bbâ2000bb-4, invalidated as to state and local laws by City of Boerne v. Flores, 521 U.S. 507 (1997). holding that Congress does not have the âpower to determine what constitutes a constitutional violation.â88×88. City of Boerne, 521 U.S. at 519. But as regards the Free Exercise Clause, the Court has bounced back and forth between exercising that power loosely and stringently, resulting in a narrow rule with a wide exception â âa free-exercise jurisprudence in tension with itself.â89×89. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 564 (1993) (Souter, J., concurring in part and concurring in the judgment).
The Courtâs current Religion Clauses jurisprudence is thus so fractured that many cases ultimately boil down to raw interest-balancing exercises. The free exercise analysis in Locke v. Davey, in which the majority, the dissent, and the lower court all focused on different elements of the inquiry, is an excellent example.90×90. Compare Locke v. Davey, 540 U.S. 712, 725 (2004), with id. at 726, 731 (Scalia, J., dissenting), and id. at 718 (majority opinion). The complex nature of the tests involved made a wide variety of outcomes feasible; the element on which each judge chose to focus might well have determined the eventual ruling. Similar problems attend the Courtâs recent Establishment Clause cases, where the Justices have split not only on the importance of the Lemon test and its attendant prongs, but also on issues such as standing, tradition, and historical practice.91×91. Cf., e.g., Am. Legion v. Am. Humanist Assân, 139 S. Ct. 2067 (2019) (comprising seven separate opinions); Town of Greece v. Galloway, 572 U.S. 565 (2014) (comprising five separate opinions); Van Orden v. Perry, 545 U.S. 677 (2005) (comprising seven separate opinions); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (comprising six separate opinions).
Having âfailed to produce either coherence or consensus in [its] First Amendment jurisprudence,â92×92. Espinoza, 140 S. Ct. at 2290 (Breyer, J., dissenting). the Court cannot âabdicate [the] responsibility to clean up [its] mess.â93×93. Utah Highway Patrol Assân v. Am. Atheists, Inc., 565 U.S. 994, 1008 (2011) (Thomas, J., dissenting from denial of certiorari). But how should it proceed? In his Espinoza dissent, Justice Breyer proposed one possible solution: the abandonment of structured doctrinal approaches altogether. Because ârigid, bright-line rules . . . too often work against the underlying purposes of the Religion Clausesâ and âa test that fails to advance the Clausesâ purposes is . . . far worse than no test at all,â Justice Breyer suggested that the Court subject difficult religious cases to a contextual balancing test.94×94. Espinoza, 140 S. Ct. at 2291 (Breyer, J., dissenting). Justice Breyer has long advocated for such an approach. See Am. Legion, 139 S. Ct. at 2090â91 (Breyer, J., concurring); Town of Greece, 572 U.S. at 615 (Breyer, J., dissenting); Van Orden, 545 U.S. at 698, 700 (Breyer, J., concurring in the judgment). Abandoning the Courtâs half-formed doctrines in favor of a frank balancing test holds some intuitive appeal; an unwieldy doctrinal morass creates no problem if the Court simply renounces a consistent, rules-based approach. But Justice Breyerâs approach would also increase the opacity of the Courtâs Religion Clauses jurisprudence, offering ânot so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives.â95×95. Locke, 540 U.S. at 728 (Scalia, J., dissenting). Even more so than the current slew of ill-defined tests, such a regime would render the Court âfree to reach almost any result in almost any case.â96×96. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 119 (1992).
Perhaps aware of this danger, the Espinoza majority rejected the balancing-test approach in favor of a clear, consistent rule. The Court initially began this process in Trinity Lutheran, which presented a problem similar to Espinozaâs: a plaintiff âdeemed categorically ineligible to receive a grantâ only because the plaintiff was religiously affiliated.97×97. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2018 (2017). Ruling in favor of the plaintiffs, the Court held that the Free Exercise Clause prohibited categorical denial of a public benefit based only on religious status,98×98. See id. at 2024. but a plurality explicitly qualified this holding with a footnote stating that the decision âinvolve[d] express discrimination based on religious identity with respect to playground resurfacingâ and â[did] not address religious uses of funding or other forms of discrimination.â99×99. Id. at 2024 n.3 (plurality opinion). The plurality footnote vitiated the majorityâs rule, adding another knot to the tangle of Religion Clauses jurisprudence. But Espinoza presented a second chance. This time the Court did not equivocate, holding that the exclusion of religious entities from public benefits âsolely because of their religious characterâ always triggers strict scrutiny.100×100. Espinoza, 140 S. Ct. at 2260 (quoting Trinity Lutheran, 137 S. Ct. at 2021).
Espinozaâs clear interpretation of the Free Exercise Clause is a much-needed step toward a more principled, workable Religion Clauses jurisprudence. Much of the Courtâs First Amendment doctrine still involves sifting through standards and factors, any one of which could be dispositive. But in the context of government benefits openly denied to religious groups, âEspinoza is clear as a bell.â101×101. Mithun Mansinghani, Symposium: Clarity in an Era of Confusion â The Supreme Court Will Not Tolerate Hostility to Religion, SCOTUSBlog (July 1, 2020, 10:38 AM), https://www.scotusblog.com/2020/07/symposium-clarity-in-an-era-of-confusion-the-supreme-court-will-not-tolerate-hostility-to-religion [https://perma.cc/8Y6W-CZTY]. The Court adopted a rule with several advantages: it reasonably interprets the sweeping language of the Free Exercise Clause; gives fair notice to the government and future litigants; and contributes to internal consistency, complementing the Courtâs previous support of programs âentirely neutral with respect to religionâ102×102. Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002). by more clearly defining neutrality. The rule also holds the potential to provide guidance for the Court in future questions regarding constitutional scrutiny of government programs.103×103. Cf., e.g., Fulton v. City of Phila., 140 S. Ct. 1104 (2020) (mem.) (granting certiorari in a case involving religious exemptions in the adoption and foster care context). The Espinoza rule would suggest strict scrutiny where exemptions are granted, but not to religious groups. Cf. Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 367 (3d Cir. 1999) (âWe are at a loss to understand why religious exemptions threaten important city interests but medical exemptions do not.â). If the Court truly follows the Espinoza rule, its current mess of multilayered standards may give way to a more streamlined, intelligible approach.
Critics worry that the Espinoza rule, while sharply defined, is incorrect. Some have cautioned that the rule could create too much liability for state governments,104×104. See, e.g., Grant Sullivan, Symposium: What âPlay in the Jointsâ Remains After Espinoza?, SCOTUSBlog (July 1, 2020, 12:49 PM), https://www.scotusblog.com/2020/07/symposium-what-play-in-the-joints-remains-after-espinoza [https://perma.cc/6QY4-S8AR]. and Justice Gorsuch wondered if the ruleâs reliance on the status-use distinction is âdestined to yield more questions than answers.â105×105. Espinoza, 140 S. Ct. at 2275 (Gorsuch, J., concurring). But these critiques only highlight the wisdom of adopting clear rules in the realm of the Religion Clauses. If it proves misguided, the Espinoza rule can be challenged and refined in a future case â by removing the status-use distinction criticized by Justice Gorsuch, for instance, or by replacing the rule altogether. But confronting such problems head-on is impossible so long as the Court is balancing atop a lurching pile of context-heavy precedents. Rules like Espinozaâs create a coherent constitutional jurisprudence on which to build, even when that jurisprudence is imperfect.
The Religion Clauses require the government to walk a tightrope. On one hand is the Establishment Clauseâs commitment to keeping the government neutral in religious matters, ensuring that each citizen is protected from state favoritism in matters of conscience; on the other is the Free Exercise Clauseâs commitment to preserving individual religious liberty, ensuring that each citizen is âprotected in worshipping the Deity according to the dictates of his [or her] own conscience.â106×106. Letter from George Washington to the United Baptist Churches of Virginia (May 1789), in 2 The Papers of George Washington: Presidential Series 423, 424 (Dorothy Twohig ed., 1987). Many Americans fear that a government increasingly hostile to religion will marginalize the faithful,107×107. See, e.g., David French, Yes, American Religious Liberty Is in Peril, Wall St. J. (July 26, 2019, 10:54 AM), https://www.wsj.com/articles/yes-american-religious-liberty-is-in-peril-11564152873 [https://perma.cc/X27D-4S46]. while others believe secular interests are at risk.108×108. See, e.g., Micah Schwartzman, Richard Schragger & Nelson Tebbe, The Separation of Church and State Is Breaking Down Under Trump, The Atlantic (June 29, 2020), https://www.theatlantic.com/ideas/archive/2020/06/breakdown-church-and-state/613498 [https://perma.cc/T75X-BSMZ]. The Supreme Court is the final arbiter of cases alleging an unconstitutional exercise of âthe power of subverting the rights of conscience in matters of religion.â109×109. Joseph Story, Commentaries on the Constitution of the United States § 991, at 701 (Boston, Hilliard, Gray & Co. 1833). And a clearly articulated approach to First Amendment interpretation, such as that offered in Espinoza, can steady the Courtâs course moving forward and provide vital clarity in a time of intensifying clashes over the importance of religious freedom.
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