Earlier today, the Supreme Court issued a 5-4 ruling that prevents states from discriminating against religious schools and families and strengthens the bedrock principles of religious liberty.
This case involved a generally available scholarship program in Montana designed to provide general support to students attending all types of private schools. However, the Montana Department of Revenue refused to allow the scholarship money to be used at religious schools. This case answers the question whether or not barring students from using the scholarship money at religious schools violates the Religion Clauses or the Equal Protection Clause.
In the amicus brief filed by ERLC and a large coalition of religious organizations, we argued that it was a First Amendment violation. The Free Exercise Clause shields the right to live out one’s religious identity, which should include giving and receiving education instruction from religious institutions.
Commending the Court’s ruling, Russell Moore noted how “these scholarships were not a funding of religion, nor an entanglement of the state with the church. The issue here is whether a state-established scholarship program for private schools could discriminate against parents who chose to send their children to private schools that happen to be religious.” Moore continued, “Blaine Amendments have not advanced the cause of keeping distinction between the church and the state, but instead have resulted in often arbitrary and incoherent policies that are needlessly discriminatory. As a Baptist committed to a free church in a free state, and to the separation of church and state, I believe this ruling maintains those right freedoms and boundaries.”
Chief Justice Roberts wrote the majority opinion joined by Justices Alito, Kavanaugh, Thomas, and Gorsuch. Justices Thomas, Alito, and Gorsuch wrote concurring opinions. Justices Breyer, Sotomayor, and Ginsberg, joined by Kagan, wrote dissenting opinions. Justice Kagan also joined portions of Justice Breyer’s opinion.
Below are key quotes from the majority opinion, as well as concurrences, and the dissents highlighting how the Court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the slip opinion of the Court’s decision are given for each quote, but legal citations are omitted for clarity of reading.
For more on this case and how the ruling will affect the future of religious liberty, check out this explainer.
Majority Opinion: Chief Justice Roberts joined by Justices Alito, Gorsuch, Kavanaugh, and Thomas
Discriminating against religious institutions:
“Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the ‘unremarkable’ conclusion that disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny.’” (8)
“Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.” (11)
“Montana’s Constitution does not zero in on any particular ‘essentially religious’ course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school ‘simply because of what it is,’ putting the school to a choice between being religious or receiving government benefits.” (13)
“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” (20)
“The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree.’” (15–16)
Discriminating against religious individuals:
“The Free Exercise Clause protects against even ‘indirect coercion,’ and a State ‘punishe[s] the free exercise of religion’ by disqualifying the religious from government aid as Montana did here.” (11)
“Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.” (19–20)
Importance of the Free Exercise Clause:
“The Supremacy Clause provides that ‘the Judges in every State shall be bound’ by the Federal Constitution, ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” (22)
“That ‘supreme law of the land’ condemns discrimination against religious schools and the families whose children attend them. They are ‘member[s] of the community too,’ and their exclusion from the scholarship program here is ‘odious to our Constitution’ and ‘cannot stand.’” (22)
Concurring Opinions: Justices Thomas (joined by Gorsuch), Alito, and Gorsuch
Applying the Free Exercise clause to religious actions:
“The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” (Gorsuch, 3)
“The Court correctly concludes that Montana’s no-aid provision expressly discriminates against religion in violation of the Free Exercise Clause. And it properly provides relief to Montana religious schools and the petitioners who wish to use Montana’s scholarship program to send their children to such schools.” (Thomas, 1)
“Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.” (Gorsuch, 8)
“Our cases have long recognized the importance of protecting religious actions, not just religious status.” (Gorsuch, 4)
“The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?” (Gorsuch, 6)
“It seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion.” (Gorsuch, 3)
Discriminating against religious institutions:
“But for the Montana Constitution’s impermissible discrimination, after all, the legislature’s tax credit and scholarship program would be still operating for the benefit of Ms. Espinoza and everyone else.” (Gorsuch, 2)
“The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’” (Alito, 13)
“Respondents and one dissent argue that Montana’s no-aid provision was cleansed of its bigoted past because it was readopted for non-bigoted reasons in Montana’s 1972 constitutional convention . . . it emphatically does not matter whether Montana readopted the no-aid provision for benign reasons. The provision’s ‘uncomfortable past’ must still be ‘[e]xamined.’” (Alito, 10)
“There appears to have been little doubt which schools this provision would predominantly affect.” (Alito, 11)
Justice Thomas’ views on the Establishment Clause:
Note: The majority opinion decided this case on the basis of the Free Exercise Clause. However, Justice Thomas wrote a concurring opinion to express his view that the Court’s Establishment Clause jurisprudence should be reconsidered. He argues that the Court’s approach to the Establishment Clause infringes the free exercise rights of Americans and is out of step with a historical reading of the First Amendment. The following quotes come from Justice Thomas’s concurring opinion on the Establishment Clause.
“I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.” (Thomas, 1)
“As this Court stated in its first case applying the Establishment Clause to the States, the government cannot ‘pass laws which aid one religion, aid all religions, or prefer one religion over another.’ . . . This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment. As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.’” (Thomas, 2)
“The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treatment of religion. . . . The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation.” (Thomas, 6)
“The content based restriction imposed by this Court’s Establishment Clause jurisprudence operates no differently. It communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion. Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility toward certain disfavored religions. . . . Although such hostility may not be overtly expressed by the Court any longer, manifestations of this ‘trendy disdain for deep religious conviction’ assuredly live on.” (Thomas, 6–7)
“Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.” (Thomas, 9)
Dissenting Opinions: Justices Ginsberg (joined by Kagan), Breyer (joined in part by Kagan), and Sotomayor
Discussion of the Free Exercise Clause:
“[T]he Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana treats them in the wake of the state court’s decision. Accordingly, the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise.” (Ginsberg, 2-3)
“Because Montana’s Supreme Court did not make such a decision— its judgment put all private school parents in the same boat—this Court had no occasion to address the matter.” (Ginsberg, 6)
“Because the state court’s decision does not so discriminate, I would reject petitioners’ free exercise claim.” (Ginsberg, 1)
“Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax credit program entirely. Because no secondary school (secular or sectarian) is eligible for benefits, the state court’s ruling neither treats petitioners differently based on religion nor burdens their religious exercise.” (Sotomayor, 2-3)
“Indeed, the records of Montana’s constitutional convention show that these concerns were among the reasons that a religiously diverse group of delegates, including faith leaders of different denominations, supported the no-aid provision.” (Breyer, 12)
“[T]his Court had never before held unconstitutional government action that merely failed to benefit religious exercise.” (Sotomayor, 3)
“[A] State’s decision not to fund religious activity does not “disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.” (Sotomayor, 10)
Discussion of the Establishment Clause:
“[D]eeply religious goals confirm why Montana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, and the free exercise rights of taxpayers, denying them the chance to decide for themselves whether and how to fund religion.” (Sotomayor, 9)
“This Court has long recognized that an overly rigid application of the Clauses could bring their mandates into conflict and defeat their basic purpose. And this potential conflict is nowhere more apparent than in cases involving state aid that serves religious purposes or institutions.” (Breyer, 1)
“The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent.” (Breyer, 2)
“In reaching its conclusion that the Free Exercise Clause requires Montana to allow petitioners to use taxpayer supported scholarships to pay for their children’s religious education, the majority makes several doctrinal innovations that, in my view, are misguided and threaten adverse consequences.” (Breyer, 12)
“Because this decision further “slights both our precedents and our history” and “weakens this country’s longstanding commitment to a separation of church and state beneficial to both, I respectfully dissent.” (Sotomayor, 2)
“Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.” (Sotomayor, 11)
ERLC interns Julia Stamper, Sloan Collier, and Seth Billingsley contributed to this article.
