An Irrelevant Distinction

The Supreme Court’s June 30 decision in Espinoza v. Montana Department of Revenue is a landmark victory for religious liberty and school choice. The Court held that state governments cannot exclude religious organizations from generally available funding programs just because the program affords students the choice of attending religious schools. I have summarized this case and its implications elsewhere; this article examines Chief Justice John Roberts’ use of a novel “status-use distinction” that raises interesting First Amendment questions.  

In Trinity Lutheran Church of Columbia v. Comer, the Court stated that the Free Exercise Clause of the First Amendment protects religious persons against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran held that the exclusion of churches from a playground resurfacing grant program violated the Free Exercise Clause. However, that case also included a footnote (the infamous Footnote 3) stating that the case dealt only with the specific issue at hand (playground resurfacing) and did not address other “religious uses of funding” (emphasis added). Much was made of Footnote 3 in the months before the Espinoza decision. Did it suggest that Trinity Lutheran only concerned states who denied religious entities the ability to participate because of their religious status, not states who denied such participation because of how the religious entity planned to use the funds? What is the scope of Trinity Lutheran? Does Footnote 3 confine Trinity Lutheran to its facts?

Chief Justice Roberts’ majority opinion avoids the thorny issue of Trinity Lutheran’s scope by focusing on what I call the “status-use distinction.” In his view, the Montana constitutional provision fails because it excludes religious entities based on their status as religious entities rather than their potential religious use of the funds. Just like the Missouri policy in Trinity Lutheran, “[t]he [Montana] provision plainly excludes schools from government aid solely be­cause of religious status.”

Justice Neil Gorsuch’s concurrence calls this distinction into question. First, he notes that the case record is full of references to religious use as well as religious status. Second, Gorsuch explains that the original meaning of the free “exercise” of religion included both being and acting. Third, Gorsuch points to precedents that have protected both religious status and religious actions. For instance, Wisconsin v. Yoder established that parents’ decisions about their children’s education – the same issue as in Espinoza – “can constitute protected religious activity.” The key takeaway, writes Gorsuch, is that it doesn’t matter whether Montana characterizes the issue as one of religious status or religious use of funding. “[I]t is not as if the First Amendment cares.”

In response to Gorsuch’s critique, Roberts is evasive: “We acknowledge the point but need not examine it here. It is enough in this case to conclude that . . . Montana’s no-aid provision discriminates based on religious status.” But Roberts’ status-use distinction is vaporous at best. First of all, use is implicit in the word “exercise.” As Gorsuch explains, the original meaning of “exercise” in the context of the First Amendment’s Free Exercise Clause included “use,” “[l]abour of the body,” “[p]ractice,” or “outward performance.” The very word itself connotates action rather than mere passive belief. Stanford Law Professor Michael McConnell has shown that the framers expressly chose to protect the exercise of religion rather than merely the right of conscience in order to “extend[] the broader freedom of action to all believers.”

Second, the status-use distinction creates more questions than answers. Where exactly is the line between status and use? Does this mean that a religious school can only participate in government funding programs for classes that aren’t religious in nature? If so, who decides which classes are sufficiently non-religious to participate? Would a religious school that offers Physics (a secular subject) but maintains its religious viewpoint during that class (relating lessons learned to religious beliefs) be unable to participate as a result? These concerns are only heightened by the fact that religious action would seem, to the reasonable observer, to be inextricably bound up with religious status. Failing to protect a teacher at a religious school would defeat the purpose of the protection in the first place, since teaching at a religious school is an inherently religious activity that is intertwined with the teacher’s (and the school’s) religious status. And if religiously motivated action is what Montana disapproves of, there may be a more serious issue at hand. Gorsuch does not hesitate to cut right to the heart of the matter: “It seems . . . more[] natural to say that the State’s discrimination focused on what religious parents and schools do – teach religion.”

Third, the status-use distinction is based on assumptions about the nature of religion and religious belief that are unhinged from reality. As Gorsuch points out, “[w]hat point is it to tell a person that he is free to be a Muslim but he may be subject to discrimination for doing what his religion commands?” Imagine the uproar that would result from applying this logic to the Free Speech Clause: it’s ok to think what you want; just make sure you don’t act on your thoughts. This logic betrays the fundamental inconsistency that the Court – and American society as a whole – use when discussing religion. As Luke Goodrich has pointed out in his seminal book Free to Believe: The Battle Over Religious Liberty in America, modern American culture views private religion as acceptable but sees public religion as an affront to society that must be snuffed out. But what is the point of religious freedom if the “freedom” part doesn’t exist? Gorsuch put it best: “The right to be religious without the right to do religious things would hardly amount to a right at all.” Chief Justice Roberts was correct to hold that states cannot exclude religious entities from generally available funding programs on account of their religion, but his use of the irrelevant status-use distinction unnecessarily muddies the First Amendment waters.

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