The Religion Clauses of the Constitution have proven difficult for the Supreme Court to untangle. Critics of the Court’s fractured Religion Clauses jurisprudence have argued for decades that it is “shallow, inconsistent, and nonpersuasive”1 — even that “the net contribution of the Court’s precedents toward a cohesive body of law . . . has been zero.”2 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 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 Taxpayers who donated to a qualifying scholarship organization would receive a matching tax credit for up to $150,5 and scholarships could be used by recipients at any private “qualifying education provider” in the state.6 Most of the qualifying education providers were religiously affiliated.7 A no-aid provision in the Montana Constitution, however, prohibits the legislature from making “any 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.”8 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 Rule 1 would exclude “sectarian institution[s],” as defined by the no-aid provision, from the definition of “qualified education provider”10 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 excluded under Rule 1, brought suit in state court.12 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 The trial court agreed with the second of these arguments at summary judgment.14 Because the Tax Credit Program “concern[ed] money that is not in the treasury and not subject to expenditure,” the court reasoned, it was not an appropriation or payment for the purposes of the no-aid provision.15 Enjoining Rule 1, the court reinstated religious private schools as potential scholarship recipients.16
The Montana Supreme Court reversed.17 Writing for the majority, Justice McKinnon18 explained that Montana’s no-aid provision “broadly and strictly prohibit[ed] aid to sectarian schools”19 and “fiercely protected” the separation of church and state.20 The Tax Credit Program clearly fell within the provision’s purview by “permit[ting] the Legislature to indirectly pay tuition at private, religiously-affiliated schools.”21 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 The court acknowledged that Montana’s no-aid provision might run afoul of the federal Free Exercise Clause in some cases, but — over two dissenting votes23 —concluded that “this [wa]s not one of those cases.”24 Because the Tax Credit Program could “not, under any circumstance, be construed” as constitutional under the no-aid provision,25 the court struck it down in its entirety.26
The U.S. Supreme Court reversed and remanded.27 Writing for the majority, Chief Justice Roberts28 held that the Montana Supreme Court’s application of the state constitution’s no-aid provision violated the federal Free Exercise Clause.29 The majority viewed Trinity Lutheran Church of Columbia, Inc. v. Comer30 as binding precedent because, like Espinoza, it “turn[ed] expressly on religious status and not religious use.”31 Building on its previous holding in Trinity Lutheran and rejecting the flexible balancing tests advocated by Justices Breyer and Sotomayor in dissent,32 the Court announced a “straightforward rule” to govern its Free Exercise cases moving forward: “When otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny.”33 Because the Montana Supreme Court had based its invalidation of the Tax Credit Program on state law that “expressly discriminate[d] on the basis of religious status” contrary to the First Amendment, that decision could not survive such scrutiny.34
Justice Thomas concurred, writing separately to address the Court’s Establishment Clause jurisprudence — a “brooding omnipresence” over Free Exercise cases such as Espinoza.35 Justice Thomas argued that the Court’s Establishment Clause doctrine is “unmoored from the original meaning of the First Amendment.”36 In his view, the clause “does not prohibit States from favoring religion” and likely cannot be incorporated against them at all.37 The Court’s failure to recognize this had produced an “unfortunate tendency” to preference other constitutional rights above the right to free exercise of religion,38 but a proper understanding of the Establishment Clause would encourage “robust and lively debate about the role of religion in government . . . at the state and local level”39 and “allow free exercise of religion to flourish.”40
Justice Alito concurred.41 Pointing to the Court’s recent decision in Ramos v. Louisiana,42 he criticized the majority’s failure to weigh the “original motivation” underlying Montana’s no-aid provision in Espinoza.43 No-aid provisions, often called “Blaine Amendments” after the congressman who inspired them, were originally enacted out of “virulent prejudice against immigrants, particularly Catholic immigrants.”44 While Montana had argued that its no-aid provision was “cleansed of its bigoted past because it was readopted for non-bigoted reasons” in a 1972 constitutional convention,45 Justice Alito quoted Ramos in concluding that it remained “‘[t]ethered’ to its original ‘bias’” because the state had not “‘actually confront[ed]’ the provision’s ‘tawdry past in reenacting it.’”46
Justice Gorsuch concurred, arguing that the Court’s reliance on Trinity Lutheran’s status-use distinction was misguided.47 Pointing to statements made by both parties, he noted that the Court faced a “record replete with discussion of activities, uses, and conduct” rather than simply religious status.48 But ultimately, Justice Gorsuch explained, this did not matter. The First Amendment must protect both religious status and religious conduct, as the Court’s previous decisions attest.49 Only this interpretation truly guarantees the Constitution’s rights to the people, for “[t]he right to be religious without the right to do religious things would hardly amount to a right at all.”50
Justice Ginsburg dissented.51 She rejected the Court’s reliance on Trinity Lutheran, arguing that the crucial element of “differential treatment” was missing from the equation in Espinoza.52 The state court’s remedy had treated religious and nonreligious schools equally, removing any burden that might previously have hindered the petitioners’ religious freedom.53 The majority thus had erred in rejecting this remedy, which “maintained neutrality between sectarian and nonsectarian private schools” and “never made religious schools ineligible for an otherwise available benefit.”54 Because all private school parents were “in the same boat” once the Tax Credit Program had been struck down, the Montana Supreme Court had never violated the Free Exercise Clause.55
Justice Breyer dissented.56 He faulted the majority for “barely acknowledg[ing]” the “‘play in the joints’ between ‘what the Establishment Clause permits and the Free Exercise Clause compels.’”57 Rather than applying Trinity Lutheran, he argued that Locke v. Davey58 was the controlling precedent; Locke held that a state’s decision to not fund “devotional degrees” was neither forbidden by the Establishment Clause nor required by the Free Exercise Clause.59 Justice Breyer advocated for a “flexible, context-specific approach” over rigid application of strict scrutiny.60 Because controversies surrounding religion are particularly difficult to unravel, he reasoned, courts should avoid the “entanglement” that inevitably results from rules-based jurisprudence and willingly engage in judicial balancing.61 Consistent with his approach in past cases, Justice Breyer urged the Court to accept the reality that there is “no test-related substitute for the exercise of legal judgment.”62
Justice Sotomayor dissented.63 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 “[O]nly by setting aside well-established judicial constraints” in violation of federalism and the separation of powers65 could the Court “transform petitioners’ as-applied challenge into a facial one” by improperly deciding a federal constitutional question.66 The Court further erred by “reject[ing] the Religion Clauses’ balanced values”67 and “repris[ing its] error in Trinity Lutheran.”68 Justice Sotomayor urged the Court to grant the government “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws,” including benefits.69
The Court’s 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 Court’s 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: “When otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny.”70 If followed consistently, this clarifying, rules-based approach to Religion Clauses jurisprudence may yield more principled and coherent decisions moving forward.
For decades, the Court’s doctrinal approaches to Religion Clauses cases have grown apart — and grown more confusing. Consider its handling of the Establishment Clause. After Everson v. Board of Education71 centered Establishment Clause doctrine around a metaphorical “wall between church and state,”72 the Supreme Court began working tirelessly to strengthen that wall. But even as it did so — holding prayer in public schools,73 criminalization of teaching evolution,74 and state reimbursement of teachers in religious schools75 to be unconstitutional — the Court realized that “[s]ome relationship between government and religious organizations is inevitable.”76 It therefore developed “a farrago of unstable rules, tests, standards, principles, and exceptions” to navigate this relationship.77 The Lemon v. Kurtzman78 test — requiring a government policy to have a “secular purpose,” to neither advance nor inhibit religion, and to not “foster ‘an excessive government entanglement with religion’” — is the best known of these rules.79 Widely maligned, the Lemon test has proven “unworkable in practice” and has been rejected or ignored by every Justice on the current Court.80
The Free Exercise Clause has fared no better. The Court established early on that the clause has boundaries,81 but it has since struggled to define them. By the mid-twentieth century, it softened its initial holding that while laws “cannot interfere with mere religious belief and opinions, they may with practices”82 and instead began to apply strict scrutiny to decide Free Exercise cases.83 In Employment Division v. Smith,84 however, the Court pivoted again, holding that “neutral, generally applicable law[s]” are not subject to strict scrutiny85 — an exception that “almost swallows the general rule.”86 The Court fiercely resisted an attempt to legislatively override Smith via the Religious Freedom Restoration Act of 1993,87 holding that Congress does not have the “power to determine what constitutes a constitutional violation.”88 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 — “a free-exercise jurisprudence in tension with itself.”89
The Court’s 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 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 Court’s 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
Having “failed to produce either coherence or consensus in [its] First Amendment jurisprudence,”92 the Court cannot “abdicate [the] responsibility to clean up [its] mess.”93 But how should it proceed? In his Espinoza dissent, Justice Breyer proposed one possible solution: the abandonment of structured doctrinal approaches altogether. Because “rigid, bright-line rules . . . too often work against the underlying purposes of the Religion Clauses” and “a test that fails to advance the Clauses’ purposes is . . . far worse than no test at all,” Justice Breyer suggested that the Court subject difficult religious cases to a contextual balancing test.94 Abandoning the Court’s 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 Breyer’s approach would also increase the opacity of the Court’s Religion Clauses jurisprudence, offering “not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives.”95 Even more so than the current slew of ill-defined tests, such a regime would render the Court “free to reach almost any result in almost any case.”96
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 Espinoza’s: a plaintiff “deemed categorically ineligible to receive a grant” only because the plaintiff was religiously affiliated.97 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 but a plurality explicitly qualified this holding with a footnote stating that the decision “involve[d] express discrimination based on religious identity with respect to playground resurfacing” and “[did] not address religious uses of funding or other forms of discrimination.”99 The plurality footnote vitiated the majority’s 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 “solely because of their religious character” always triggers strict scrutiny.100
Espinoza’s clear interpretation of the Free Exercise Clause is a much-needed step toward a more principled, workable Religion Clauses jurisprudence. Much of the Court’s 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, “Espinoza is clear as a bell.”101 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 Court’s previous support of programs “entirely neutral with respect to religion”102 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 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 and Justice Gorsuch wondered if the rule’s reliance on the status-use distinction is “destined to yield more questions than answers.”105 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 — 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 Espinoza’s 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 Clause’s 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 Clause’s commitment to preserving individual religious liberty, ensuring that each citizen is “protected in worshipping the Deity according to the dictates of his [or her] own conscience.”106 Many Americans fear that a government increasingly hostile to religion will marginalize the faithful,107 while others believe secular interests are at risk.108 The Supreme Court is the final arbiter of cases alleging an unconstitutional exercise of “the power of subverting the rights of conscience in matters of religion.”109 And a clearly articulated approach to First Amendment interpretation, such as that offered in Espinoza, can steady the Court’s course moving forward and provide vital clarity in a time of intensifying clashes over the importance of religious freedom.