A victory for the free exercise of religion


Last week, when I briefly previewed the remainder of the Supreme Court term, I suggested that most of the big cases wouldn’t go well for conservatives, but that conservatives might squeak out wins in the religious liberty cases.

Today, the Supreme Court decided one of those cases, Espinoza v. Montana Department of Revenue, and the conservative position prevailed. By a 5-4 vote, the Court held that the Montana supreme court violated the Free Exercise Clause of the U.S. Constitution when it applied a state constitutional no-aid provision to bar religious schools from receiving scholarship money under a state tax-credit program.

The Montana Legislature had established the tax credit to provide tuition assistance to parents who send their children to private schools. But when parents sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. It relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The majority concluded that the Free Exercise Clause bars that application of the no-aid provision.

Chief Justice Roberts wrote the majority opinion. Ed Whelan breaks down that opinion here.

The four conservative Justices — Thomas, Alito, Gorsuch, and Kavanaugh — joined the Chief Justice’s opinion. In addition, Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Ed summarizes them here.

Of the religious freedom cases before the Court, Espinoza could have been viewed as the most likely one to get away from conservatives. That’s because, with the Montana Supreme Court having eliminated the scholarship program altogether, a majority might have concluded that there is no discrimination against those who want to use scholarships at religious schools. However, for reasons Ed describes, Roberts wisely rejected this argument.

The Court still has two major religious liberty cases to decide this term. They are: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Our Lady of Guadalupe School v. Morrisey-Berru.

In Little Sisters of the Poor, the issue is whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage. There is also a technical issue regarding standing.

The issue in the Lady of Guadalupe School case is whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions.

These are massive cases, in my opinion. Let’s hope the Chief Justice stays with the four conservative Justices and upholds the First Amendment’s guarantees of religious liberty.



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