Espinoza v. Montana Department of Revenue

FREE EXERCISE CLAUSE

Espinoza argues that the application of Article X, Section 6(1) violates the First Amendment Free Exercise Clause rights of parents who wish to send their children to religiously-affiliated schools. Brief for Petitioners, Espinoza, et al. (“Espinoza”) at 16. As Espinoza explains, the Free Exercise Clause prohibits the government from discriminating against particular religions and religion in general. Id. at 14–15. Espinoza relies primarily on the U.S. Supreme Court’s decision in Trinity Lutheran Church v. Comer, which invalidated a generally applicable grant program because the program conditioned grant eligibility on a church’s religious “status,” “belief,” and “conduct.” Id. at 15. Article X, Section 6(1), according to Espinoza, similarly conditions eligibility of a generally applicable government benefit on parents’ religious beliefs, conduct, and status, because some parents send their children to religious schools to align their children’s education with their religious beliefs, practices, and identity. See id. at 17–18. Espinoza further asserts that Article X, Section 6(1) discriminates against religious schools because of their religious “character” and “identity.” Id. at 18–19. Therefore, Espinoza argues, because Article X, Section 6(1), as applied, discriminates against religious beliefs, conduct, and status, it must survive strict scrutiny. Id. at 20. Espinoza contends, however, that it cannot withstand strict scrutiny because the Court in Trinity Lutheran already rejected the Department’s rationale—that a state has a compelling interest in creating greater separation of church and state than what already exists under the federal Establishment Clause. Id. at 20–21.

Relatedly, Espinoza asserts that Article X, Section 6(1) unconstitutionally discriminates against religious uses of scholarship funds. Id. at 21. Although the Court in Trinity Lutheran did not address the constitutionality of discrimination based on “religious use” of funding, Espinoza contends that the distinction between discrimination based on the “religious status” of the recipient and the “religious use” of the funding is meaningless because the First Amendment broadly protects “the free exercise of religion, not just religious belief.” Id. at 21–22. Indeed, Espinoza notes that a parent’s religion might require religious schooling for a child, which in turn might require the use of scholarship funds. Id. at 22. Therefore, Espinoza argues, conditioning funding eligibility based on religious use creates the same “hostility toward religion” as conditioning funds based on religious status. Id. at 22–23.

Espinoza also argues that this case is distinguishable from Locke v. Davey, where the Court upheld a state’s conditioning of a college scholarship program on its recipients not using the scholarship to pursue a major in devotional theology. Id. at 23–24. According to Espinoza, the Court in Locke specified that a religious exclusion in a student-aid program is only permissible in limited circumstances. Id. at 24. Espinoza notes these circumstances exist where the religious exclusion is narrow, not hostile toward religion, not forcing a recipient to choose between receiving government aid and exercising the recipient’s religion, and “is justified by a historic substantial and historic interest.” Id. at 24. In contrast, Espinoza argues: first, Article X, Section 6(1) broadly bars all religious options for families seeking to use student scholarship programs; second, Section 6(1) creates religious hostility by expansively excluding “all religious schools;” third, Section 6(1) forecloses any opportunity to participate in the scholarship program, if a student attends a religious school in Montana; and fourth, this case relates to religious education in general and does not pose a unique state interest like the interest in Locke (not funding clergy training). Id. at 25–26.

The Department counters that Article X, Section 6(1) neither directly nor indirectly prohibits the free exercise of religion in violation of the Free Exercise Clause. Brief of Respondents, Montana Department of Revenue, et al. (“Montana”) at 11. According to the Department, different from the church’s choice in Trinity Lutheran (i.e., to participate in a generally available benefit program or maintain its status as a church), Article X, Section 6(1) does not prohibit any school or student from exercising their religion, even if the lack of scholarship funds is financially burdensome. Id. at 11, 13. Similarly, the Department argues that because the Montana Supreme Court struck down the entire Tax Credit Program, there is no benefit available to anyone, religious or non-religious. Id. at 14. Thus, the Department continues, families cannot be coerced into abandoning their religious practices because even if they “abandoned their faith, they still would not get scholarships.” Id. In support of the Department, Religion Law Scholars add that Espinoza’s claim does not fall within the type of government action that the constitutional safeguards in the Religion Clauses were meant to protect because Espinoza fails to identify “any actual discrimination” violating constitutional principles that prevent the government from favoring or disfavoring religion. Brief of Amici Curiae Religion Law Scholars, in Support of Respondents at 22. The Religion Law Scholars maintain that, historically, the Religion Clauses were intended to prevent the government from singling out religion by favoring or disfavoring it; here, however, Article X, Section 6(1) equally applies to religious and nonreligious parents. Id. To hold for Espinoza, the Religion Law Scholars argue, would “redefine discrimination to include any government action that addresses religion in a manner not required by the Religion Clauses themselves.” Id.

Further, the Department disputes Espinoza’s contention that discrimination based on religious status and religious use is the same. Brief of Respondents at 36–37. The Department argues that, if any discrimination occurred, the Montana Constitution discriminated solely based on the use of state funding for religious education, which the U.S. Constitution does not expressly prohibit. Id. at 37. The Department points out that this argument is supported by the historical record. Id. at 28. Indeed, the Department notes that, at the Founding, many state constitutions prohibited religious institutions from using public aid. Id. The Department adds that this interpretation of the Free Exercise Clause is supported by writings authored by James Madison, the Clause’s primary drafter. Id. Therefore, the Department argues, “prohibition” as used in the Free Exercise Clause, was not understood to encompass a state’s prohibition on the provision of public funds for religious uses. Id. at 28, 30–33.

Finally, contrary to Espinoza’s reading, the Department contends that Locke stands for the proposition that a state may bar scholarship funding for “education designed to induce religious faith,” including at religious schools for primary and secondary education. Id. at 34. The Department argues that Article X, Section 6(1) functions similarly to the prohibition in Locke, where the state barred funding for the instruction of a member of the church’s future ministry; here, Montana is similarly prohibiting funding for religious school teachers acting as part of the ministry in educating students. Id. at 35.

EQUAL PROTECTION CLAUSE

Espinoza argues that Article X, Section 6(1) violates the Equal Protection Clause of the Fourteenth Amendment because, historically, it was “born of bigotry” and it continues to perpetuate discriminatory animus. Brief for Petitioners at 29. Espinoza explains that the Equal Protection Clause prohibits drawing classifications based on “inherently suspect” protected groups, like religion. Id. at 28. Espinoza points out that Article X, Section 6(1) is a “Blaine Amendment”—an amendment many states adopted in the Nineteenth Century to prevent public funding of Catholic schools while preserving “Protestant-oriented public schools.” Id. at 31. Therefore, Espinoza argues, because religious discriminatory animus was a “motivating factor” in the adoption of Article X, Section 6(1) and because the provision has a discriminatory effect on all types of religious schooling today, the provision violates the Equal Protection Clause. Id. at 30–31, 44–45.

The Department counters that there is no unequal treatment between religion and nonreligion in Montana because when the Montana Supreme Court applied Article X, Section 6(1) to the Tax Credit Program, it denied aid to all private schools, whether sectarian or secular, impacting both religion and nonreligion in the same way. Brief of Respondents at 51. In addition, the Department argues, Espinoza’s historical argument overlooks analogous “no-aid provisions” that trace back to the Founding that were not motivated by anti-Catholic bigotry. Id. at 41. Indeed, the Department maintains that Montana’s no-aid provision is actually a means of promoting religious liberty by erecting a greater barrier between the government and religious schools. Id. at 42. Finally, the Department asserts that even if Montana’s original “Blaine Amendment” was discriminatory when it was first adopted, that animus was purged when Montana adopted a new constitution in 1972, more than one-hundred years after the provision was originally passed. Id. at 18–19, 49.

ESTABLISHMENT CLAUSE

Espinoza argues that Article X, Section 6(1) violates the Establishment Clause because it expresses a hostility to religion by excluding religious entities from a generally applicable funding program. Brief for Petitioners at 46. As Espinoza explains, the Establishment Clause requires that the government remain neutral between different religions and between religion and nonreligion. Id. at 45–46. Espinoza asserts that Article X, Section 6(1) is a form of “passive hostility” because it fosters a bias against religion by leaving in place the discriminatory animus created by the Blaine Amendments. Id. Article X, Section 6(1) is also a form of “active hostility,” according to Espinoza, because the government continues to use it as an “engine of discrimination” to exclude all religious entities from participating in the Tax Credit Program. Id. Therefore, Espinoza concludes, analyzed under any of the tests applied in Establishment Clause cases, Article X, Section 6(1) creates hostility towards religion while also depriving families of educational choice. Id. at 46–47.

The Department counters that Article X, Section 6(1) does not violate the Establishment Clause because it is not hostile to religion. Brief of Respondents at 52. Instead, the Department maintains, Article X, Section 6(1) advances Establishment Clause principles by creating a greater barrier between church and state; here, by ensuring that religious schools do not become dependent on state funding. Id. at 17–23, 52. The Department argues that the Establishment Clause allows states to decide whether and how to fund religious entities. Id. at 53. Thus, the Department continues, because Montana had the ability to prohibit funding to religious entities in the first place, expressing this same policy determination in Montana’s Constitution does not create hostility toward religion over nonreligion in violation of the Establishment Clause. Id. at 53–54.