Kevin Welner: Shotgun wedding between state and church

This article was excerpted from a Washington Post column and is reprinted with permission.

By Kevin Welner

On June 30, the U.S. Supreme Court issued a decision that was once unthinkable. It required the state of Montana to set aside its own Constitution’s ban on direct or indirect funding of religious private schools: “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.”

The principles underlying the U.S. Constitution’s Establishment Clause, while not yet dead, are now in exceedingly poor health.

To be fair, the wall of separation between church and state never really existed. But for a while, there was a fairly high fence. It protected religious institutions from entanglements with the government, and vice versa. In countries without such separation, state institutions can become instruments of the state’s preferred religion — as the writers of the U.S. Constitution observed in England and other European countries.

In the United States, that high fence of separation between church and state transformed our essentially Protestant public schools into secular institutions attended by a cross-section of the population, including strongly religious families. That seeming contradiction of religious upbringing plus nonreligious schooling was, in fact, entirely consistent with Thomas Jefferson’s reasons for embracing a “wall of separation” to avoid government involvement that could corrupt free religious practice, while also protecting the government against church influence.

Churches and related religious institutions benefit from this arrangement in three key ways. First, the government stays away from the internal affairs of churches. While this can lead to fraud and abuse, it also protects religious liberty. Second, the government grants churches freedoms denied to other institutions, including the freedom to discriminate. Third, because “the power to tax involves the power to destroy,” churches are given an extraordinary number of tax benefits.

As part of this exceedingly hands-off approach, church-affiliated institutions were not, in the past, eligible to participate in some government programs. For instance, while private religious colleges could receive aid to help students fund their education, the court prohibited state aid directly to religious K-12 schools.

Today’s Supreme Court does not share Jefferson’s vision. In fact, the court has been sawing away at the high fence for decades. In cases posing challenges to state funding of religious institutions, the court has steadily permitted greater and greater financial entanglements.

In fact, in a case three years ago called Trinity Lutheran v. Comer, the court pronounced that states can, under some circumstances, be constitutionally required to fund religious institutions, pursuant to the Free Eercise Clause of the First Amendment.

When providing a public benefit (in that case, state grants for playground resurfacing), the state cannot make religious status an impediment to receipt of that benefit — at least where the benefit is not directly supporting religious practice.

Even from this conservative court, the Trinity Lutheran decision was a bit of a surprise. Earlier, in 2004, in a case called Locke v. Davey, the court found no constitutional impediment to a state prohibiting a college scholarship from being used directly to support religious practice, by excluding students pursuing a “degree in devotional theology.”

With those key precedents, the court decided a case involving a neo-voucher law that had been adopted in Montana. The law used tax credits to create a funding mechanism for small vouchers to help pay for private school tuition. Because the Montana Constitution includes a “No Aid” clause that prohibits direct or indirect state support for church-controlled schools, the Montana Department of Revenue only allowed the law to go forward on the condition that religious schools be excluded.

A lawsuit called Espinoza v. Montana Department of Revenue challenged that ruling and made its way to that state’s Supreme Court. That court struck down the entire neo-voucher law, thus avoiding the possibility of anti-religious discrimination raised in Trinity Lutheran v. Comer, while also avoiding a violation of the Montana Constitution.

That should have ended the matter, but the U.S. Supreme Court weighed in.

Before discussing the court’s decision in the Espinoza case, it’s important to step back and consider the unusual ideological extremity of the current Supreme Court.

The court is designed to be somewhat insulated from political pressures, with justices appointed for life. But the Supreme Court has now become almost as ideologically predictable as the Congress. The court has moved further and further to the right. There’s now a reliable five-justice majority on issues ranging from school vouchers and affirmative action to border control and deregulation.

I would be remiss if I did not mention here the most momentous and egregious event in this process of building the current ultraconservative court: the unprecedented obstruction of President Barack Obama’s nominee Merrick Garland.

Antonin Scalia died unexpected in February 2016, and Obama put forward Garland’s nomination in March. But Senate Majority Leader Mitch McConnell refused to allow any confirmation hearings, citing the presidential election to take place eight months later. President Trump eventually appointed Justice Neil Gorsuch to the seat, maintaining the conservative five-justice majority (which was soon strengthened with Justice Brett Kavanaugh replacing Justice Anthony Kennedy).

Let’s return to that high fence mentioned earlier. Once the Supreme Court decided to hear the Espinoza case, we were left to hope that it would at least leave in place a speed bump of separation between church and state.

What we got instead is a shotgun marriage between church and state.

The court’s decision held that application of the “no aid” provision in the Montana Constitution was barred by the U.S. Constitution’s Free Exercise Clause. The Montana provision prohibited any direct or indirect aid to a school controlled by a “church, sect, or denomination.” But the court’s Espinoza majority opinion also minimizes that distinction, which was important in Locke and potentially crucial to the decision in Trinity Lutheran:

“None of this is meant to suggest that we agree with the Department [of Revenue] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. Some members of the court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s No Aid provision discriminates based on religious status.”

Here’s more critical language:

Locke differs from this case in two critical ways. First, Locke explained that Washington had ‘merely chosen not to fund a distinct category of instruction’: the ‘essentially religious endeavor’ of training a minister ‘to lead a congregation.’ Thus, Davey ‘was denied a scholarship because of what he proposed to do — use the funds to prepare for the ministry.’ Apart from that narrow restriction, Washington’s program allowed scholarships to be used at ‘pervasively religious schools’ that incorporated religious instruction throughout their classes.

By contrast, 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.

“At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a ‘historic and substantial’ state interest in not funding the training of clergy, explaining that ‘opposition to . . . funding ‘to support church leaders’ lay at the historic core of the Religion Clauses.’ . . .  But no comparable ‘historic and substantial’ tradition supports Montana’s decision to disqualify religious schools from government aid.”

The court concludes: “It is clear that there is no ‘historic and substantial’ tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke.” But this historical focus was a side note in the court’s earlier Locke decision. What Roberts did in this case was to limit Locke to its unique facts, marginalizing its usefulness as a precedent.

But note that sentence in bold from the passage above. A state’s constitution is given meaning by the state’s courts. Imagine if, upon remand, the Montana Supreme Court issues a new decision, saying something like: “In view of the U.S. Supreme Court’s decision, we interpret the ‘No Aid’ provision in our state Constitution to prohibit any direct or indirect financial support to religious instruction in church-controlled schools.”

This would allow a voucher law that provides support to religious schools but not to religious education. Implementing or enforcing that funding mechanism would entangle the state with the operations of the religious schools, but it would seem doable. Would the Roberts court find that approach to be constitutional, or would it further restrict the reach of Locke?

What’s clear for now is that the long-standing “tuitioning” voucher systems in Maine and Vermont, which are limited to nonreligious private schools, cannot stand. There will have to be a shotgun wedding between church and state in those two states.

Other implications, which will reach beyond school vouchers, will emerge in the upcoming months and years.

Kevin Welner is the director of the National Education Policy Center at the University of Colorado at Boulder and co-author of several books, including NeoVouchers: The Emergence of Tuition Tax Credits for Private Schooling