July 1, 2020

Five Thoughts on Espinoza

Nelson Tebbe Jane M.G. Foster Professor of Law, Cornell Law School

No one should have been surprised by the Supreme Court’s 5-4 decision yesterday in Espinoza. It represented the continuation of an ongoing constitutional program, launched years ago by members of the majority, to weaken the Establishment Clause and strengthen the Free Exercise Clause. Here are five initial takeaways.

First, the Court has now decisively moved from the rule that school choice programs are permitted by the Establishment Clause to include religious schools to a rule that these tax programs are required by the Free Exercise Clause to include religious schools whenever they benefit private schools. After the Court ruled in 2002 that school voucher programs could include religious schools, several governments established voucher programs that supported only secular schools. Courts upheld these programs, reasoning that the “play between the joints” between the two religion clauses gives governments discretion to adopt a vision of separationism that is not required by nonestablishment, just as they can adopt a vision of religious liberty that’s not required by free exercise. I provided theoretical support for these decisions in an article in the Penn Law Review. But in Espinoza the Supreme Court has constrained governmental discretion as a matter of federal constitutional law—taking the matter out of the hands of states and localities, and out of the hands of voters and the officials they elect.

Second, Chief Justice Roberts, writing for the majority, purports to constrain the majority’s holding in Espinoza by arguing that it only applies to government support programs that exclude religious entities, not to exclusions of religious uses. (This distinction between status and conduct was foreshadowed in footnote 3 of Trinity Lutheran, a 2017 decision, where the distinction seemed to have been required by Justice Kagan and was pointedly not joined by Justices Gorsuch and Thomas.) But in Espinoza, Roberts is careful to avoid committing the Court to the status/conduct distinction. In his dissent, Justice Breyer argues that excluding religious schools from funding programs is tantamount to excluding religious practices, since many or most parochial and sectarian schools include theological instruction, prayer practices, and even worship services. Roberts rejects this view, holding that Montana’s exclusion of religious schools from its school choice program “discriminated” against them on the basis of status, not sectarian activity. “None of this is meant to suggest,” Roberts nevertheless insists, “that we agree with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.”

Roberts’ reluctance is understandable, because the status/use distinction is unstable. Imagine that, after Espinoza, a government adopted a school choice program that prohibited funding for core sectarian practices like theological instruction, prayer, or worship. Would such a program really escape a presumption of unconstitutionality? The Court would likely reason that there is no tradition against funding for religious instruction, just as it found in Espinoza that there was no founding-era prohibition on funding religious schools. (Never mind that this way of telling the story privileges a time when states had established churches and ignores the nineteenth century, when Americans decisively rejected those establishments, when public schools came into existence, and when Reconstruction amendments to the Constitution incorporated the religion clauses against the states.) The Roberts Court would then overrule Locke v. Davey, reasoning that its legal foundations have been undermined by subsequent legal developments—chiefly, Trinity Lutheran and Espinoza. Any earlier attempt to forestall a rule that school choice programs are constitutionally obligated to direct tax support to core religious uses has failed.

Technically, Espinoza concerns only “indirect aid”—government support that flows to religion only via the independent choices of private citizens. But my third point is that the decision has implications for direct aid, as well. Under current law, the constitutional rule is that tax dollars, and other forms of public aid, cannot flow directly to religious practices. But Roberts Court is moving unmistakably toward a different rule, namely that tax dollars may flow directly to prayer and worship, so long as the aid is neutral among religions, and between religion and nonreligion, and so long as the aid is nonreligious in content. In Espinoza, Roberts points toward this outcome in dicta when he says “the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” While it’s unclear whether Espinoza itself is the marker, or whether we should point instead to Congress’s decision to direct hundreds of millions of dollars toward clergy salaries in the PPP program, it is clear that the era of American separationism has ended. The United States is headed for a system much more like the one in Europe, where religious schools can be funded alongside secular ones, and where even congregations themselves can receive tax support.

Fourth, the Espinoza decision creates tensions with other areas of constitutional law. For some time, it’s been the rule that while government may not unduly burden the exercise of fundamental liberties, it need not support or subsidize them. So government cannot censor speech, but it is not constitutionally compelled to subsidize the expression of private speakers. And, crucially, the government is not obligated to support the ability to terminate a pregnancy, even though reproductive freedom is a constitutional right. An implication of Espinoza, however, is that government is actually compelled to subsidize free exercise whenever it supports comparable secular activity. Otherwise, it’s engaged in “discrimination.” Now, members of the majority will argue that the Free Exercise Clause contains an equality requirement that’s missing from due process doctrine. Yet reproductive freedom supports the equal citizenship status of women in an obvious way. While I have concerns about the rule that fundamental rights need not be subsidized, I find it hard to see how that rule is being applied coherently across constitutional law.

Finally, Espinoza deepens difficulties surrounding the specialness of religion in constitutional law. If Chief Justice Roberts is right that free exercise “protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status,” then the principle of nonestablishment is itself in constitutional question. It suggests that religion can never be singled out for special burdens, or even denied support, without triggering a presumption of unconstitutionality. But of course that is what the Establishment Clause does—it insists that there are special difficulties with government support for commitments of conscience. Not only has the Court narrowed the “play in the joints” between the religion clauses, in other words, but it has created tensions between the principles driving the clauses themselves.

The United States has long been seen as exceptional among constitutional democracies—exceptionally committed to the separation of church and state, and exceptionally religious in its people’s private practices. It’s far from clear that this description is correct, that these two characteristics are causally related, or that the strictest forms of separationism have ever been workable or attractive. But regardless, the country now is moving into a new constitutional arrangement, one that carries dangers of religious preferentialism, government entanglement in religious affairs, and political conflict along religious lines. We should begin the work of adjusting to that new reality.

Establishment Clause (or Separation of Church and State), First Amendment