FFRF awarded Rory $500 for her essay.
By Rory Brown
For centuries, American society has operated on the notion of separation of church and state, for an individual’s right to practice the faith of their choice should play no role in their acceptance as an American citizen. As Justice Elena Kagan noted, “[o]ur Constitution promises that [citizens] may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering.” Petitioners maintain in Espinoza v. Montana Department of Revenue that the Montana Supreme Court’s decision to uphold the No-Aid Clause of the Montana state Constitution is in violation of Free Exercise, as it prohibits religiously affiliated private schools from receiving state funds. In other words, the issue before the Supreme Court is whether a state can be required to fund religious schools with tax dollars.
In their brief of amicus curiae, the Alliance for Choice in Education (“ACE”) emphatically contends that promoting individual choice regarding which religiously affiliated school to attend would lead to increased diversity in educational options. The contention is that the ability for an individual to attend a religiously affiliated school of their choosing would lead to increased diversity in educational options.
In good faith, ACE maintains that the majority of private schools in Montana are religiously affiliated, and that the tax credit program proposed by the Montana Legislature would allow low-income families an increased chance to attend private schools. ACE’s assertion mirrors the position of petitioners, that the tax-credit program is for the benefit of the students, rather than for the support of religious institutions. Petitioners assert that the Montana Supreme Court’s decision discriminates against religiously affiliated private schools and families who wish to attend them.
However, there is an important distinction to be made between an individual’s constitutional right to prevent state intervention into their worship, as Justice Kagan noted, and the long-standing practice of preventing the allocation of public funds to religious education.
Petitioner’s accusation of religious discrimination as a result of the Montana Supreme Court’s decision is based on a misguided interpretation of the Free Exercise Clause. Their claim of discrimination is not supported by the foundational principles of the right to Free Exercise and their proposed solution to the alleged discrimination is void of consideration for inevitable outcomes that would follow from mandating a state to provide public funds to religious institutions. While an individual is indisputably afforded constitutional protections to privately practice the religion of their choosing, this constitutional protection is not infringed upon by a state’s refusal to engage in religious sponsorship through the allocation of public funds to religiously affiliated educational institutions.
In Locke v. Davey, the Supreme Court articulated a long recognized “play in the joints” between the Establishment Clause and the Free Exercise Clause. In order to understand what the court meant by this phrase, it is important to look at the historical context surrounding that “play” and the intention of the two clauses in the realm of education. This “play in the joints” indicates that states may provide religious protections to individuals outside of the language of the Constitution, but Supreme Court precedent indicates that the expansion of those rights is not without limitation.
For example, Locke recognized that states have broad, historically rooted interests in not supporting religious ministries in any way, as the state funds allocated toward supporting ministries would have a direct correlation with the religious teaching, or “indoctrination,” which is the obvious intention of the ministries’ education.
This logic employed in Locke to demonstrate that there is a longstanding practice of states’ refusals to publicly fund religious institutions is further grounded in the writings of James Madison and Thomas Jefferson.
In 1784, Patrick Henry proposed to the Virginia Legislature a bill that would allocate tax dollars to religious education, led by teachers of the Christian faith in order to better the morals of society through the instruction of students. To this proposition, James Madison vehemently opposed the conception that the government pay funds to support a religious agenda, asserting that requiring members of the civil community to pay any amount of money to support religious education was a violation of free exercise.
As a result of Madison’s opposition, the Virginia Legislature subsequently passed the Virginia Statute for Religious Freedom, authored by Madison himself, along with Thomas Jefferson. In the Statute, Jefferson mandated that “no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever.” According to Madison and Jefferson, the constitutional right to free exercise is violated when a taxpayer is required by law or otherwise coerced, into supporting a religious entity.
While looking at the Founders’ interpretations may not always be the appropriate way to gauge the intention of constitutional protections, Jefferson and Madison provide necessary insight into what does and should constitute a violation of free exercise. Madison and Jefferson were both of the belief that the separation of church and state would allow the two to function effectively in the absence of influence of one on the other. Not only did these two Founders express an explicit aversion to the coercive nature of requiring citizen tax dollars to fund religious education, but they noted the potential pitfalls that follow from state sponsored support for religious institutions. This view is shared with those outside of the cohorts of the Founders by justices who not only believe that the two should be separate for reasons of effectiveness, but that government sponsorship of religion may lead to social strife and further division among varying religious affiliations.
For example, in Zelman v. Simmons-Harris, Justice Stephen Breyer urged the Supreme Court to reject the publicly funded voucher program in question because he believed the program would prove to be kindling for religiously based social strife. Specifically, Justice Breyer warned that in American society, “[the court] realized the status quo favored some religions at the expense of others.” In Montana, 65 percent of individuals identify as Christian, 30 percent identify as unaffiliated, and only 5 percent identify as non-Christian faiths including 1 percent identifying as Jewish and 1 percent as Muslim. Therefore, as Justice Breyer warned, awarding state funds to religiously affiliated schools in a predominantly Christian state would inherently lead to the state sponsoring the teachings of the Christian faith.
While it is important to note that not all private schools in Montana are religiously affiliated, based on the data set forth by petitioners and amici, 70 percent of the private schools in Montana have religious affiliation.
Therefore, the tax-credit program would not necessarily provide parents with any real choice on which private school they choose to send their children to, as religiously affiliated private schools are far more prevalent throughout the state.
In fact, in 2018, more than 94 percent of scholarships awarded under the publicly funded program financed religious education. Not only would this tax credit inevitably lead to the state’s promotion of religious (predominantly Christian) schools and limit an individual’s choice based on the overwhelming majority of solely religious options, but the data present here also contradicts the position of the petitioners and amici that the program would add an element of diversity in education institutions available to Montana residents.
Montana’s incorporation of a No-Aid Clause into the state Constitution addresses the concerns surrounding state and religious entanglement expressed by Jefferson and Madison and should be viewed as a protection against state-sponsored religious preference as outlined by Justice Breyer.
Further, the decision of the Montana Supreme Court invalidated the tax credit program in its entirety. Therefore, all private schools in the state of Montana experienced the same effect from the state court’s decision, as the program was invalidated regardless of religious or secular denomination.
As Justice Kagan continuously purports, “[w]hen the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another.” Petitioners were not discriminated against by the Montana Supreme Court’s decision. Rather, to reverse the holding of the state’s highest court and to therefore require citizens to fund religious education institutions would contradict the underlying values and purpose of the Free Exercise Clause.
Rory is from Boston and graduated from the University of South Carolina before attending Northeastern University School of Law. In her first legal internship in law school, Rory interned with a Muslim civil rights group in Boston. “I hope to continue to use my legal education to better understand how the government and religion can interact in the best way to serve a civil purpose, while avoiding discrimination and state-sponsored religious favoritism,” she said.