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Landmark Victory for Religious Liberty and School Choice

By Thomas Philbrick ('11)

In a landmark victory for religious liberty and school choice, the U.S. Supreme Court ruled on June 30, 2020 that state governments cannot exclude religious organizations from a student aid program just because the program affords students the choice of attending religious schools.*

The case was Espinoza v. Montana Department of Revenue, which involved a Montana scholarship program that provided a small tax credit to individuals and businesses who donated to private scholarship organizations. These donations were then used to provide scholarships for children to attend private schools. Shortly after the program’s creation, the Montana Department of Revenue issued Rule 1, which prohibited scholarship recipients from using scholarship funds to attend religious schools. The Department said that Rule 1 was necessary to comply with Article X, Section 6 of the Montana Constitution, which prohibits any public aid to churches and religious schools. Since over 70% of Montana’s private schools are religiously affiliated, Rule 1 threatened to undermine the entire scholarship program. Kendra Espinoza, who was unable to send her children to private religious school because of Rule 1, challenged it in court. The Montana Supreme Court responded by simply invalidating the entire scholarship program, declaring it an unconstitutional governmental funding of religion. The question for the U.S. Supreme Court was: can state governments bar religious organizations from participation in a generally available student aid program purely because the program affords students the choice of attending religious schools?

The Espinoza ruling confirms that the constitutionally correct answer to that question is an emphatic “No.”  Excluding religious entities from general state programs violates the Free Exercise Clause of the First Amendment, which establishes that the government cannot exclude people “because of their faith . . . from receiving the benefits of public welfare legislation.” Chief Justice John Roberts wrote that “[a] state . . . cannot disqualify some private schools solely because they are religious.” This holding is consistent Trinity Lutheran Church of Columbia v. Comer, in which the Supreme Court held that that states cannot exclude churches from generally available funding programs. Espinoza goes a (welcome) step further, extending these protections to religious schools in addition to churches.

The Court also made it clear that the discriminatory Blaine Amendments enacted by 38 states are constitutionally unacceptable. As I described in my earlier discussion of this case (, Senator James Blaine’s 1875 attempt to amend the U.S. Constitution to prohibit states from funding any institution “under the control of any religious sect” was really just a covert attempt to discriminate against Catholics. Blaine’s amendment failed, but 38 state constitutions subsequently enacted provisions mirroring his proposed amendment. The legislative history of Article X, Section 6 of the Montana Constitution shows that the Montana delegates who passed that provision were motivated by anti-Catholic animus as well. The Supreme Court made it clear in Espinoza that the targeting of religious people made possible by Blaine amendments is constitutionally and morally wrong.

The majority opinion also shot down the argument that allowing religious entities to participate in such programs would be an establishment of religion because money would begin with the state and end with a religious entity. The Supreme Court already dealt with this logical fallacy in Zelman v. Simmons-Harris. In Zelman, the Court clarified that just because the majority of the schools in an area happen to be religious does not mean that letting religious entities participate in the program is an Establishment Clause violation. Chief Justice Roberts reiterated this point in Espinoza: “[a]ny Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.” This clear statement not only shoots down the Establishment Clause objections but also makes an extremely strong case for school choice.

In what appears to be the only questionable portion of the majority opinion, Chief Justice Roberts utilized a novel “status vs. use” distinction to make his point. He argued that Montana’s law failed because it limited religious entities based on their status as religious entities, not based on how they planned to use the funds. He did this to avoid dealing with Footnote 3 of Trinity Lutheran, where he wrote that that case did not address “religious uses of funding.” However, as both Justice Neil Gorsuch and Justice Clarence Thomas point out in their concurrences, this “status vs. use” distinction is rhetorical nonsense. It is obvious to any reasonable observer that a religious group is going to use its funds for religious uses. Kendra Espinoza herself said so; her motivation for sending her children to private religious school was so that they would be taught the same values at school that she tried to teach at home. The bottom line is that denying a religious group the ability to participate in a generally available program purely because of their religion is a violation of the First Amendment – regardless of whether they are going to use the funds for religious purposes or not.

The dissenters argue that the case should be dismissed because the Montana Supreme Court invalidated the entire program. In other words, because the state dodged the problem, the problem doesn’t exist. The Supreme Court has held, however, that “eliminating a public program to prevent including a protected class in that program is just as discriminatory as excluding that class in the first place.” Applying this logic to another scenario, as Professor Ilya Somin has done (, showcases its shallowness. For instance, the dissenters certainly would not advance the same argument regarding a school choice program that was struck down because it conditioned participation based on race. Religion, however, appears, to be a different story for them.

This case is a significant victory for religious freedom because it forbids states from excluding religious entities and individuals from general funding programs on account of their religion. The explicit extension of Trinity Lutheran’s protections to religious schools will be a vital defense against future attempts to exclude religious schools from public programs. It is also a huge victory for school choice because it definitively establishes that school choice programs must be neutral regarding religion. As Chief Justice Roberts said, “we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children . . . . Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution.” Families must be allowed to choose the school that they believe is best for their children, whether that school is religious or not. The one-two-punch combo of Trinity Lutheran and Espinoza will hopefully lead states to enact a wide range of school choice initiatives that will free parents up to send their children to the school of their choosing.

*Those interested in reading the full opinion can find it here:

Thomas Philbrick graduated from JRHS in 2011. Upon graduation, he attended Wheaton College where he earned a degree in Political Science. Following Wheaton College, he attended Michigan State University and recently graduated with a Juris Doctor Degree. Thomas and his wife, Sarah, currently reside in Detroit, Michigan. During JRHS Remote Learning Weeks, our students were blessed to learn under Thomas' teaching of Constitutional Law. To read more of Thomas' writings, visit his blog at

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