One of the persistent disappointments of media coverage in the Trump era is how the eye-popping daily headlines about the president obscure slower-moving, equally important developments at all levels of government. This term, the Supreme Court is set to consider cases that could have momentous implications for the future of abortion and LGBTQ rights. It will also hear arguments in Espinoza v. Montana Department of Revenue, an important case about state-voucher funding for private religious schools. If the petitioners win, this case could empower activists such as the current secretary of education, Betsy DeVos, who want more government money to flow to private education, and who believe states are in serious need of a course correction on the way they view religious schools. But according to their progressive opponents, Espinoza could blur the separation of Church and state, locking taxpayers into funding religious education even when they don’t want to.
While it won’t be as flashy as a presidential declaration on religious liberty, this case’s effects on religious schools and families will likely be far more lasting. Espinoza is the inevitable next step in an important string of Supreme Court decisions about religious discrimination and the U.S. Constitution. The case will add intensity to an already fierce fight about the way religion and politics mix in this country, and whether the imperatives of religious freedom outweigh all other concerns.
The case is named for Kendra Espinoza, a single mother who lives near Kalispell, Montana, who took her two daughters out of public school after one struggled academically and the other faced repeated bullying. She enrolled her girls in a private school, Stillwater Christian, but, like the two other mothers named in the case, Espinoza struggled to pay tuition on her income as an office assistant and night janitor. In 2015, the Montana legislature created a scholarship incentive program to help families send their kids to private schools, religious or secular, which Espinoza says she looked forward to using. Before that could happen, however, the state department of revenue put a rule in place banning the program’s funds from being used at religious schools, saying that would violate Montana’s constitution.
The Supreme Court has to decide whether the kind of no-aid provision found in Montana’s state constitution runs afoul of the U.S. Constitution. For nearly two decades, the Court has held that state voucher programs can include religious schools if a particular state wants the inclusion. Should justices rule in favor of Espinoza and the other parents in this case, they would be taking that principle a step further: If states want to have a voucher program, they can’t exclude religious schools from participating.
It was inevitable that the Court would hear this kind of case eventually, Richard Garnett, a law professor at the University of Notre Dame, told me. Four or five decades ago, the Court was much more hostile toward voucher programs than it is today: The justices thought “aid to religious schools itself is suspect,” he said. Eventually, the Court softened this posture, in 2002 ruling in favor of an Ohio program that allowed state money to be used for tuition at private religious schools. Then, two years ago, the justices ruled in Trinity Lutheran Church v. Comer, deciding by a vote of 7 to 2 that states could not exclude religious organizations from participating in neutral state programs, such as a grant for resurfacing playgrounds. Although the justices bent over backwards to make the limits of their decision clear, “everybody who read that knew: Of course we’re talking about other forms of aid,” Garnett said. “Everybody knew the next case was going to be one involving school funding.”
The stakes of the Court’s decision in Espinoza could reach far beyond Montana. More than 30 states have similar provisions banning public aid to private religious schools, according to a brief filed by the Becket Fund for Religious Liberty. These measures have long been a target of ire for religious-freedom advocates: Many came about during a late-19th-century wave of anti-Catholic legislation, when politicians stoked fear about Catholics’ inability to place their duties as U.S. citizens over their allegiance to the pope. These provisions are generally referred to as Blaine amendments, after Representative James Blaine, who tried and failed to secure a federal constitutional amendment banning government aid to sectarian schools. The Supreme Court should find these measures unconstitutional, lawyers for Becket and other groups argue, so that states can craft “public programs without being weighed down by the bigotry of the past.”
Montana’s original no-aid provision was indeed put in place during this era, but it was revised and reaffirmed during a 1972 state constitutional convention, in which at least two ministers and a variety of religious leaders participated. States should have the latitude to put these kinds of restrictions in place, Nelson Tebbe, a law professor at Brooklyn Law School and visiting professor at Cornell, told me: They might want to protect taxpayers from giving “money to the government that’s then directed to the religions with which they disagree.” In general, he said, the Supreme Court has allowed states some flexibility in navigating Church-state questions. With five conservative justices on the bench, however, that may not be the direction the Court is headed in. “One would have to be naive not to understand the challenge that Montana is going to face in this Supreme Court with its current makeup,” Tebbe said.
Some critics see Espinoza as a potential threat to the constitutional principles laid out in the Free Exercise Clause and the Establishment Clause of the First Amendment; the latter is often crudely summarized as “the separation of Church and state.” Diversity in state voucher programs is “a feature of federalism, not a bug for Free Exercise,” the Montana Department of Revenue argued in a brief to the Supreme Court. “Different states, with different legislatures and different constitutions, will arrive at different policies,” the state added, which “is something to celebrate, not quash.”
Current legal and political trends do not favor Church-state separationists, however. The Trump administration filed a brief in support of the Montana parents who want to put their kids in private religious school. At the U.S. Department of Education, DeVos has been working to promote religious education, and has explicitly cited the Supreme Court’s decision in Trinity Lutheran to justify easing guidelines on how federal money flows to private schools. In general, conservative religious-freedom advocates are ascendant in American political life, securing victories in court, at the White House, and in federal policy making. Arguments for more expansive private-school voucher programs are just one piece of a broader agenda to create more space for a certain kind of religious life in the United States.
Still, even some religious-freedom advocates recognize that state funding for private religious education is contested, and can be debated in good faith. “I generally have the view that with controversial questions, it’s better that they be settled politically than judicially,” Garnett said. A win for the religious parents in Espinoza wouldn’t end the debate over religious education and school vouchers: “District by district, state by state, people will hash this out,” he said. “This is a case where the Court’s not being asked to resolve a question. It’s just being asked to permit a debate.”