Espinoza v. Montana Dept. of Revenue

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ESPINOZA ET AL. v. MONTANA DEPARTMENT OF
REVENUE ET AL.
CERTIORARI TO THE SUPREME COURT OF MONTANA
No. 18–1195. Argued January 22, 2020—Decided June 30, 2020
The Montana Legislature established a program that grants tax credits
to those who donate to organizations that award scholarships for pri-
vate school tuition. To reconcile the program with a provision of the
Montana Constitution that bars government aid to any school “con-
trolled in whole or in part by any church, sect, or denomination,”
Art. X, §6(1), the Montana Department of Revenue promulgated “Rule
1,” which prohibited families from using the scholarships at religious
schools. Three mothers who were blocked by Rule 1 from using schol-
arship funds for their children’s tuition at Stillwater Christian School
sued the Department in state court, alleging that the Rule discrimi-
nated on the basis of their religious views and the religious nature of
the school they had chosen. The trial court enjoined Rule 1. Reversing,
the Montana Supreme Court held that the program, unmodified by
Rule 1, aided religious schools in violation of the Montana Constitu-
tion’s no-aid provision. The Court further held that the violation re-
quired invalidating the entire program.
Held: The application of the no-aid provision discriminated against reli-
gious schools and the families whose children attend or hope to attend
them in violation of the Free Exercise Clause of the Federal Constitu-
tion. Pp. 6–22.
(a) The Free Exercise Clause “protects religious observers against
unequal treatment” and against “laws that impose special disabilities
on the basis of religious status.” Trinity Lutheran Church of Colum-
bia, Inc. v. Comer, 582 U. S. ___, ___. In Trinity Lutheran, this Court
held that disqualifying otherwise eligible recipients from a public ben-
efit “solely because of their religious character” imposes “a penalty on
the free exercise of religion that triggers the most exacting scrutiny.”
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
Syllabus
Id., at ___. Here, the application of Montana’s no-aid provision ex-
cludes religious schools from public benefits solely because of religious
status. As a result, strict scrutiny applies. Pp. 6–12.
(b) Contrary to the Department’s contention, this case is not gov-
erned by Locke v. Davey, 540 U.S. 712. The plaintiff in Locke was
denied a scholarship “because of what he proposed to do—use the
funds to prepare for the ministry,” an essentially religious endeavor.
Trinity Lutheran, 582 U. S., at ___. By contrast, Montana’s no-aid pro-
vision does not zero in on any essentially religious course of instruction
but rather bars aid to a religious school “simply because of what it is”—
a religious school. Id., at ___. Locke also invoked a “historic and sub-
stantial” state interest in not funding the training of clergy, 540 U.S.,
at 725, but no comparable tradition supports Montana’s decision to
disqualify religious schools from government aid. Pp. 12–16.
(c) The proposed alternative approach involving a flexible case-by-
case analysis is inconsistent with Trinity Lutheran. The protections of
the Free Exercise Clause do not depend on a varying case-by-case anal-
ysis regarding whether discrimination against religious adherents
would serve ill-defined interests. Pp. 16–18.
(d) To satisfy strict scrutiny, government action “must advance ‘in-
terests of the highest order’ and must be narrowly tailored in pursuit
of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 546. Montana’s interest in creating greater separation of
church and State than the Federal Constitution requires “cannot qual-
ify as compelling” in the face of the infringement of free exercise here.
Trinity Lutheran, 582 U. S., at ___. The Department’s argument that
the no-aid provision actually promotes religious freedom is unavailing
because an infringement of First Amendment rights cannot be justi-
fied by a State’s alternative view that the infringement advances reli-
gious liberty. The Department’s argument is especially unconvincing
because the infringement here broadly burdens not only religious
schools but also the families whose children attend them. The Depart-
ment suggests that the no-aid provision safeguards public education
by ensuring that government support is not diverted to private schools,
but that interest does not justify a no-aid provision that requires only
religious private schools to bear its weight. Pp. 18–20.
(e) Because the Free Exercise Clause barred the application of the
no-aid provision here, the Montana Supreme Court had no authority
to invalidate the program on the basis of that provision. The Depart-
ment argues that the invalidation of the entire program prevented a
free exercise violation, but the Department overlooks the Montana Su-
preme Court’s threshold error of federal law. Had the Montana Su-
preme Court recognized that the application of the no-aid provision
was barred by the Free Exercise Clause, the Court would have had no
Cite as: 591 U. S. ____ (2020) 3
Syllabus
basis for invalidating the program. The Court was obligated to disre-
gard the no-aid provision and decide this case consistent with the Fed-
eral Constitution. Pp. 20–22.
393 Mont. 446, 435 P.3d 603, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a con-
curring opinion, in which GORSUCH, J., joined. ALITO, J., and GORSUCH,
J., filed concurring opinions. GINSBURG, J., filed a dissenting opinion, in
which KAGAN, J., joined. BREYER, J., filed a dissenting opinion, in which
KAGAN, J., joined as to Part I. SOTOMAYOR, J., filed a dissenting opinion.
Cite as: 591 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Montana Legislature established a program to pro-
vide tuition assistance to parents who send their children
to private schools. The program grants a tax credit to any-
one who donates to certain organizations that in turn
award scholarships to selected students attending such
schools. When petitioners sought to use the scholarships at
a religious school, the Montana Supreme Court struck down
the program. The Court 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 ques-
tion presented is whether the Free Exercise Clause of the
United States Constitution barred that application of the
no-aid provision.
I
A
In 2015, the Montana Legislature sought “to provide pa-
rental and student choice in education” by enacting a schol-
arship program for students attending private schools.
2015 Mont. Laws p. 2168, §7. The program grants a tax
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
credit of up to $150 to any taxpayer who donates to a par-
ticipating “student scholarship organization.” Mont. Code
Ann. §§15–30–3103(1), –3111(1) (2019). The scholarship
organizations then use the donations to award scholarships
to children for tuition at a private school. §§15–30–
3102(7)(a), –3103(1)(c).1
So far only one scholarship organization, Big Sky Schol-
arships, has participated in the program. Big Sky focuses
on providing scholarships to families who face financial
hardship or have children with disabilities. Scholarship or-
ganizations like Big Sky must, among other requirements,
maintain an application process for awarding the scholar-
ships; use at least 90% of all donations on scholarship
awards; and comply with state reporting and monitoring re-
quirements. §§15–30–3103(1), –3105(1), –3113(1).
A family whose child is awarded a scholarship under the
program may use it at any “qualified education provider”—
that is, any private school that meets certain accreditation,
testing, and safety requirements. See §15–30–3102(7). Vir-
tually every private school in Montana qualifies. Upon re-
ceiving a scholarship, the family designates its school of
choice, and the scholarship organization sends the scholar-
ship funds directly to the school. §15–30–3104(1). Neither
the scholarship organization nor its donors can restrict
awards to particular types of schools. See §§15–30–
3103(1)(b), –3111(1).
The Montana Legislature allotted $3 million annually to
fund the tax credits, beginning in 2016. §15–30–3111(5)(a).
If the annual allotment is exhausted, it increases by 10%
the following year. Ibid. The program is slated to expire in
2023. 2015 Mont. Laws p. 2186, §33.
The Montana Legislature also directed that the program
——————
1 The Legislature provided the same tax credit to taxpayers who donate
to public schools for the purpose of supporting innovative educational
programs or curing technology deficiencies at such schools. See Mont.
Code Ann. §15–30–3110 (2019).
Cite as: 591 U. S. ____ (2020) 3
Opinion of the Court
be administered in accordance with Article X, section 6, of
the Montana Constitution, which contains a “no-aid” provi-
sion barring government aid to sectarian schools. See
Mont. Code Ann. §15–30–3101. In full, that provision
states:
“Aid prohibited to sectarian schools. . . . The leg-
islature, counties, cities, towns, school districts, and
public corporations shall not make any direct or indi-
rect appropriation or payment from any public fund or
monies, or any grant of lands or other property for any
sectarian purpose or to aid any church, school, acad-
emy, seminary, college, university, or other literary or
scientific institution, controlled in whole or in part by
any church, sect, or denomination.” Mont. Const.,
Art. X, §6(1).
Shortly after the scholarship program was created, the
Montana Department of Revenue promulgated “Rule 1,”
over the objection of the Montana Attorney General. That
administrative rule prohibited families from using scholar-
ships at religious schools. Mont. Admin. Rule
§42.4.802(1)(a) (2015). It did so by changing the definition
of “qualified education provider” to exclude any school
“owned or controlled in whole or in part by any church, re-
ligious sect, or denomination.” Ibid. The Department ex-
plained that the Rule was needed to reconcile the scholar-
ship program with the no-aid provision of the Montana
Constitution.
The Montana Attorney General disagreed. In a letter to
the Department, he advised that the Montana Constitution
did not require excluding religious schools from the pro-
gram, and if it did, it would “very likely” violate the United
States Constitution by discriminating against the schools
and their students. See Complaint in No. DV–15–1152A
(Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5–6. The Attorney
General is not representing the Department in this case.
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
B
This suit was brought by three mothers whose children
attend Stillwater Christian School in northwestern Mon-
tana. Stillwater is a private Christian school that meets
the statutory criteria for “qualified education providers.” It
serves students in prekindergarten through 12th grade,
and petitioners chose the school in large part because it
“teaches the same Christian values that [they] teach at
home.” App. to Pet. for Cert. 152; see id., at 138, 167. The
child of one petitioner has already received scholarships
from Big Sky, and the other petitioners’ children are eligible
for scholarships and planned to apply. While in effect, how-
ever, Rule 1 blocked petitioners from using scholarship
funds for tuition at Stillwater. To overcome that obstacle,
petitioners sued the Department of Revenue in Montana
state court. Petitioners claimed that Rule 1 conflicted with
the statute that created the scholarship program and could
not be justified on the ground that it was compelled by the
Montana Constitution’s no-aid provision. Petitioners fur-
ther alleged that the Rule discriminated on the basis of
their religious views and the religious nature of the school
they had chosen for their children.
The trial court enjoined Rule 1, holding that it was based
on a mistake of law. The court explained that the Rule was
not required by the no-aid provision, because that provision
prohibits only “appropriations” that aid religious schools,
“not tax credits.” Id., at 94.
The injunctive relief freed Big Sky to award scholarships
to students regardless of whether they attended a religious
or secular school. For the school year beginning in fall 2017,
Big Sky received 59 applications and ultimately awarded
44 scholarships of $500 each. The next year, Big Sky re-
ceived 90 applications and awarded 54 scholarships of $500
each. Several families, most with incomes of $30,000 or
less, used the scholarships to send their children to Stillwa-
ter Christian.
Cite as: 591 U. S. ____ (2020) 5
Opinion of the Court
In December 2018, the Montana Supreme Court reversed
the trial court. 393 Mont. 446, 435 P.3d 603. The Court
first addressed the scholarship program unmodified by
Rule 1, holding that the program aided religious schools in
violation of the no-aid provision of the Montana Constitu-
tion. In the Court’s view, the no-aid provision “broadly and
strictly prohibits aid to sectarian schools.” Id., at 459, 435
P. 3d, at 609. The scholarship program provided such aid
by using tax credits to “subsidize tuition payments” at pri-
vate schools that are “religiously affiliated” or “controlled in
whole or in part by churches.” Id., at 464–467, 435 P. 3d,
at 612–613. In that way, the scholarship program flouted
the State Constitution’s “guarantee to all Montanans that
their government will not use state funds to aid religious
schools.” Id., at 467, 435 P. 3d, at 614.
The Montana Supreme Court went on to hold that the vi-
olation of the no-aid provision required invalidating the en-
tire scholarship program. The Court explained that the
program provided “no mechanism” for preventing aid from
flowing to religious schools, and therefore the scholarship
program could not “under any circumstance” be construed
as consistent with the no-aid provision. Id., at 466–468, 435
P. 3d, at 613–614. As a result, the tax credit is no longer
available to support scholarships at either religious or sec-
ular private schools.
The Montana Supreme Court acknowledged that “an
overly-broad” application of the no-aid provision “could im-
plicate free exercise concerns” and that “there may be a
case” where “prohibiting the aid would violate the Free Ex-
ercise Clause.” Id., at 468, 435 P. 3d, at 614. But, the Court
concluded, “this is not one of those cases.” Ibid.
Finally, the Court agreed with petitioners that the De-
partment had exceeded its authority in promulgating
Rule 1. The Court explained that the statute creating the
scholarship program had broadly defined qualifying schools
to include all private schools, including religious ones, and
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
the Department lacked authority to “transform” that defi-
nition with an administrative rule. Id., at 468–469, 435
P. 3d, at 614–615.
Several Justices wrote separately. All agreed that Rule 1
was invalid, but they expressed differing views on whether
the scholarship program was consistent with the Montana
and United States Constitutions. Justice Gustafson’s con-
currence argued that the program violated not only Mon-
tana’s no-aid provision but also the Federal Establishment
and Free Exercise Clauses. Id., at 475–479, 435 P. 3d, at
619–621. Justice Sandefur echoed the majority’s conclusion
that applying the no-aid provision was consistent with the
Free Exercise Clause, and he dismissed the “modern juris-
prudence” of that Clause as “unnecessarily complicate[d]”
due to “increasingly value-driven hairsplitting and over-
stretching.” Id., at 482–484, 435 P. 3d, at 623–624.
Two Justices dissented. Justice Rice would have held
that the scholarship program was permissible under the no-
aid provision. He criticized the majority for invalidating
the program “sua sponte,” contending that no party had
challenged it under the State Constitution. Id., at 495, 435
P. 3d, at 631. Justice Baker also would have upheld the
program. In her view, the no-aid provision did not bar the
use of scholarships at religious schools, and free exercise
concerns could arise under the Federal Constitution if it
did. Id., at 493–494, 435 P. 3d, at 630.
We granted certiorari. 588 U. S. ___ (2019).
II
A
The Religion Clauses of the First Amendment provide
that “Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof.”
We have recognized a “ ‘play in the joints’ between what the
Establishment Clause permits and the Free Exercise
Clause compels.” Trinity Lutheran Church of Columbia,
Cite as: 591 U. S. ____ (2020) 7
Opinion of the Court
Inc. v. Comer, 582 U. S. ___, ___ (2017) (slip op., at 6) (quot-
ing Locke v. Davey, 540 U.S. 712, 718 (2004)). Here, the
parties do not dispute that the scholarship program is per-
missible under the Establishment Clause. Nor could they.
We have repeatedly held that the Establishment Clause is
not offended when religious observers and organizations
benefit from neutral government programs. See, e.g.,
Locke, 540 U.S., at 719; Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U.S. 819, 839 (1995). See also Trinity
Lutheran, 582 U. S., at ___ (slip op., at 6) (noting the par-
ties’ agreement that the Establishment Clause was not vio-
lated by including churches in a playground resurfacing
program). Any Establishment Clause objection to the schol-
arship program here is particularly unavailing because the
government support makes its way to religious schools only
as a result of Montanans independently choosing to spend
their scholarships at such schools. See Locke, 540 U.S., at
719; Zelman v. Simmons-Harris, 536 U.S. 639, 649–653
(2002). The Montana Supreme Court, however, held as a
matter of state law that even such indirect government sup-
port qualified as “aid” prohibited under the Montana Con-
stitution.
The question for this Court is whether the Free Exercise
Clause precluded the Montana Supreme Court from apply-
ing Montana’s no-aid provision to bar religious schools from
the scholarship program. For purposes of answering that
question, we accept the Montana Supreme Court’s interpre-
tation of state law—including its determination that the
scholarship program provided impermissible “aid” within
the meaning of the Montana Constitution—and we assess
whether excluding religious schools and affected families
from that program was consistent with the Federal Consti-
tution.2
——————
2 JUSTICE SOTOMAYOR argues that the Montana Supreme Court “ex-
8 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
The Free Exercise Clause, which applies to the States un-
der the Fourteenth Amendment, “protects religious observ-
ers against unequal treatment” and against “laws that im-
pose special disabilities on the basis of religious status.”
Trinity Lutheran, 582 U. S., at ___, ___ (slip op., at 6, 9) (in-
ternal quotation marks and alterations omitted); see Cant-
well v. Connecticut, 310 U.S. 296, 303 (1940). Those “basic
principle[s ]” have long guided this Court. Trinity Lutheran,
582 U. S., at ___–___ (slip op., at 6–9). See, e.g., Everson v.
Board of Ed. of Ewing, 330 U.S. 1, 16 (1947) (a State “can-
not exclude individual Catholics, Lutherans, Mohammed-
ans, Baptists, Jews, Methodists, Non-believers, Presbyteri-
ans, or the members of any other faith, because of their
faith, or lack of it, from receiving the benefits of public wel-
fare legislation”); Lyng v. Northwest Indian Cemetery Pro-
tective Assn., 485 U.S. 439, 449 (1988) (the Free Exercise
Clause protects against laws that “penalize religious activ-
ity by denying any person an equal share of the rights, ben-
efits, and privileges enjoyed by other citizens”).
Most recently, Trinity Lutheran distilled these and other
decisions to the same effect into the “unremarkable” conclu-
sion that disqualifying otherwise eligible recipients from a
public benefit “solely because of their religious character”
imposes “a penalty on the free exercise of religion that trig-
gers the most exacting scrutiny.” 582 U. S., at ___–___ (slip
op., at 9–10). In Trinity Lutheran, Missouri provided grants
to help nonprofit organizations pay for playground resur-
facing, but a state policy disqualified any organization
“owned or controlled by a church, sect, or other religious en-
tity.” Id., at ___ (slip op., at 2). Because of that policy, an
——————
pressly declined to reach any federal issue.” Post, at 6 (dissenting opin-
ion). Not so. As noted, supra, at 5, the Montana Supreme Court recog-
nized that certain applications of the no-aid provision could “violate the
Free Exercise Clause.” 393 Mont. 446, 468, 435 P.3d 603, 614 (2018).
But the Court expressly concluded that “this is not one of those cases.”
Ibid.
Cite as: 591 U. S. ____ (2020) 9
Opinion of the Court
otherwise eligible church-owned preschool was denied a
grant to resurface its playground. Missouri’s policy dis-
criminated against the Church “simply because of what it
is—a church,” and so the policy was subject to the “strictest
scrutiny,” which it failed. Id., at ___–___ (slip op., at 11–
15). We acknowledged that the State had not “criminal-
ized” the way in which the Church worshipped or “told the
Church that it cannot subscribe to a certain view of the Gos-
pel.” Id., at ___ (slip op., at 11). But the State’s discrimina-
tory policy was “odious to our Constitution all the same.”
Id., at ___ (slip op., at 15).
Here too Montana’s no-aid provision bars religious
schools from public benefits solely because of the religious
character of the schools. The provision also bars parents
who wish to send their children to a religious school from
those same benefits, again solely because of the religious
character of the school. This is apparent from the plain
text. The provision bars aid to any school “controlled in
whole or in part by any church, sect, or denomination.”
Mont. Const., Art. X, §6(1). The provision’s title—“Aid pro-
hibited to sectarian schools”—confirms that the provision
singles out schools based on their religious character. Ibid.
And the Montana Supreme Court explained that the provi-
sion forbids aid to any school that is “sectarian,” “religiously
affiliated,” or “controlled in whole or in part by churches.”
393 Mont., at 464–467, 435 P.3d, at 612–613. The provi-
sion plainly excludes schools from government aid solely be-
cause of religious status. See Trinity Lutheran, 582 U. S.,
at ___–___ (slip op., at 9–10).
The Department counters that Trinity Lutheran does not
govern here because the no-aid provision applies not be-
cause of the religious character of the recipients, but be-
cause of how the funds would be used—for “religious educa-
tion.” Brief for Respondents 38. In Trinity Lutheran, a
majority of the Court concluded that the Missouri policy vi-
olated the Free Exercise Clause because it discriminated on
10 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
the basis of religious status. A plurality declined to address
discrimination with respect to “religious uses of funding or
other forms of discrimination.” 582 U. S., at ___, n. 3 (slip
op., at 14, n. 3). The plurality saw no need to consider such
concerns because Missouri had expressly discriminated
“based on religious identity,” ibid., which was enough to in-
validate the state policy without addressing how govern-
ment funds were used.
This case also turns expressly on religious status and not
religious use. The Montana Supreme Court applied the no-
aid provision solely by reference to religious status. The
Court repeatedly explained that the no-aid provision bars
aid to “schools controlled in whole or in part by churches,”
“sectarian schools,” and “religiously-affiliated schools.” 393
Mont., at 463–467, 435 P. 3d, at 611–613. Applying this
provision to the scholarship program, the Montana Su-
preme Court noted that most of the private schools that
would benefit from the program were “religiously affiliated”
and “controlled by churches,” and the Court ultimately con-
cluded that the scholarship program ran afoul of the Mon-
tana Constitution by aiding “schools controlled by
churches.” Id., at 466–467, 435 P. 3d, at 613–614. The
Montana Constitution discriminates based on religious sta-
tus just like the Missouri policy in Trinity Lutheran, which
excluded organizations “owned or controlled by a church,
sect, or other religious entity.” 582 U. S., at ___ (slip op., at
2).
The Department points to some language in the decision
below indicating that the no-aid provision has the goal or
effect of ensuring that government aid does not end up be-
ing used for “sectarian education” or “religious education.”
393 Mont., at 460, 466–467, 435 P.3d, at 609, 613–614. The
Department also contrasts what it characterizes as the
“completely non-religious” benefit of playground resurfac-
ing in Trinity Lutheran with the unrestricted tuition aid at
Cite as: 591 U. S. ____ (2020) 11
Opinion of the Court
issue here. Tr. of Oral Arg. 31. General school aid, the De-
partment stresses, could be used for religious ends by some
recipients, particularly schools that believe faith should
“permeate[ ]” everything they do. Brief for Respondents 39
(quoting State ex rel. Chambers v. School Dist. No. 10, 155
Mont. 422, 438, 472 P.2d 1013, 1021 (1970)). See also post,
at 8, 13 (BREYER, J., dissenting).
Regardless, those considerations were not the Montana
Supreme Court’s basis for applying the no-aid provision to
exclude religious schools; that hinged solely on religious
status. Status-based discrimination remains status based
even if one of its goals or effects is preventing religious or-
ganizations from putting aid to religious uses.
Undeterred by Trinity Lutheran, the Montana Supreme
Court applied the no-aid provision to hold that religious
schools could not benefit from the scholarship program. 393
Mont., at 464–468, 435 P. 3d, at 612–614. So applied, the
provision “impose[s] special disabilities on the basis of reli-
gious status” and “condition[s] the availability of benefits
upon a recipient’s willingness to surrender [its] religiously
impelled status.” Trinity Lutheran, 582 U. S., at ___–___
(slip op., at 9–10) (quoting Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520, 533 (1993), and McDaniel v.
Paty, 435 U.S. 618, 626 (1978) (plurality opinion) (altera-
tions omitted)). To be eligible for government aid under the
Montana Constitution, a school must divorce itself from any
religious control or affiliation. Placing such a condition on
benefits or privileges “inevitably deters or discourages the
exercise of First Amendment rights.” Trinity Lutheran, 582
U. S., at ___ (slip op., at 11) (quoting Sherbert v. Verner, 374
U.S. 398, 405 (1963) (alterations omitted)). The Free Ex-
ercise Clause protects against even “indirect coercion,” and
a State “punishe[s] the free exercise of religion” by disqual-
ifying the religious from government aid as Montana did
here. Trinity Lutheran, 582 U. S., at ___–___ (slip op., at
10–11) (internal quotation marks omitted). Such status-
12 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
based discrimination is subject to “the strictest scrutiny.”
Id., at ___ (slip op., at 11).
None of this is meant to suggest that we agree with the
Department, Brief for Respondents 36–40, that some lesser
degree of scrutiny applies to discrimination against reli-
gious uses of government aid. See Lukumi, 508 U.S., at
546 (striking down law designed to ban religious practice
involving alleged animal cruelty, explaining that a law “tar-
get[ing] religious conduct for distinctive treatment or ad-
vanc[ing] legitimate governmental interests only against
conduct with a religious motivation will survive strict scru-
tiny only in rare cases”). Some Members of the Court, more-
over, have questioned whether there is a meaningful dis-
tinction between discrimination based on use or conduct
and that based on status. See Trinity Lutheran, 582 U. S.,
at ___–___ (slip op., at 1–2) (GORSUCH, J., joined by
THOMAS, J., concurring in part) (citing, e.g., Lukumi, 508
U.S. 520, and Thomas v. Review Bd. of Ind. Employment
Security Div., 450 U.S. 707 (1981)). We acknowledge the
point but need not examine it here. It is enough in this case
to conclude that strict scrutiny applies under Trinity Lu-
theran because Montana’s no-aid provision discriminates
based on religious status.
B
Seeking to avoid Trinity Lutheran, the Department con-
tends that this case is instead governed by Locke v. Davey,
540 U.S. 712 (2004). See also post, at 5 (BREYER, J., dis-
senting); post, at 9 (SOTOMAYOR, J., dissenting). Locke also
involved a scholarship program. The State of Washington
provided scholarships paid out of the State’s general fund
to help students pursuing postsecondary education. The
scholarships could be used at accredited religious and non-
religious schools alike, but Washington prohibited students
from using the scholarships to pursue devotional theology
degrees, which prepared students for a calling as clergy.
Cite as: 591 U. S. ____ (2020) 13
Opinion of the Court
This prohibition prevented Davey from using his scholar-
ship to obtain a degree that would have enabled him to be-
come a pastor. We held that Washington had not violated
the Free Exercise Clause.
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 congre-
gation.” Id., at 721. Thus, Davey “was denied a scholarship
because of what he proposed to do—use the funds to pre-
pare for the ministry.” Trinity Lutheran, 582 U. S., at ___
(slip op., at 12). Apart from that narrow restriction, Wash-
ington’s program allowed scholarships to be used at “perva-
sively religious schools” that incorporated religious instruc-
tion throughout their classes. Locke, 540 U.S., at 724–725.
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. Trinity Lu-
theran, 582 U. S., at ___ (slip op., at 12). At the same time,
the provision puts families to a choice between sending
their children to a religious school or receiving such bene-
fits.
Second, Locke invoked a “historic and substantial” state
interest in not funding the training of clergy, 540 U.S., at
725, explaining that “opposition to . . . funding ‘to support
church leaders’ lay at the historic core of the Religion
Clauses,” Trinity Lutheran, 582 U. S., at ___ (slip op., at 13)
(quoting Locke, 540 U.S., at 722). As evidence of that tra-
dition, the Court in Locke emphasized that the propriety of
state-supported clergy was a central subject of founding-era
debates, and that most state constitutions from that era
prohibited the expenditure of tax dollars to support the
clergy. See id., at 722–723.
14 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
But no comparable “historic and substantial” tradition
supports Montana’s decision to disqualify religious schools
from government aid. In the founding era and the early
19th century, governments provided financial support to
private schools, including denominational ones. “Far from
prohibiting such support, the early state constitutions and
statutes actively encouraged this policy.” L. Jorgenson, The
State and the Non-Public School, 1825–1925, p. 4 (1987);
e.g., R. Gabel, Public Funds for Church and Private Schools
210, 217–218, 221, 241–243 (1937); C. Kaestle, Pillars of the
Republic: Common Schools and American Society, 1760–
1860, pp. 166–167 (1983). Local governments provided
grants to private schools, including religious ones, for the
education of the poor. M. McConnell, et al., Religion and
the Constitution 318–319 (4th ed. 2016). Even States with
bans on government-supported clergy, such as New Jersey,
Pennsylvania, and Georgia, provided various forms of aid
to religious schools. See Kaestle, supra, at 166–167; Gabel,
supra, at 215–218, 241–245, 372–374; cf. Locke, 540 U.S.,
at 723. Early federal aid (often land grants) went to reli-
gious schools. McConnell, supra, at 319. Congress provided
support to denominational schools in the District of Colum-
bia until 1848, ibid., and Congress paid churches to run
schools for American Indians through the end of the 19th
century, see Quick Bear v. Leupp, 210 U.S. 50, 78 (1908);
Gabel, supra, at 521–523. After the Civil War, Congress
spent large sums on education for emancipated freedmen,
often by supporting denominational schools in the South
through the Freedmen’s Bureau. McConnell, supra, at
323.3
——————
3 JUSTICE BREYER sees “no meaningful difference” between concerns
animating bans on support for clergy and bans on support for religious
schools. Post, at 8–10. But evidently early American governments did.
See supra, at 14. JUSTICE BREYER contests particular examples but
acknowledges that some bans on clergy support did not bar certain “spon-
sorship” of religious schools. Post, at 10. And, central to the issue here,
Cite as: 591 U. S. ____ (2020) 15
Opinion of the Court
The Department argues that a tradition against state
support for religious schools arose in the second half of the
19th century, as more than 30 States—including Mon-
tana—adopted no-aid provisions. See Brief for Respond-
ents 40–42 and App. D. Such a development, of course, can-
not by itself establish an early American tradition. JUSTICE
SOTOMAYOR questions our reliance on aid provided during
the same era by the Freedmen’s Bureau, post, at 10 (dis-
senting opinion), but we see no inconsistency in recognizing
that such evidence may reinforce an early practice but can-
not create one. In addition, many of the no-aid provisions
belong to a more checkered tradition shared with the Blaine
Amendment of the 1870s. That proposal—which Congress
nearly passed—would have added to the Federal Constitu-
tion a provision similar to the state no-aid provisions, pro-
hibiting States from aiding “sectarian” schools. See Mitch-
ell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion).
“[I]t was an open secret that ‘sectarian’ was code for ‘Cath-
olic.’ ” Ibid.; see Jorgenson, supra, at 70. The Blaine
Amendment was “born of bigotry” and “arose at a time of
pervasive hostility to the Catholic Church and to Catholics
——————
he certainly does not identify a consistent early tradition, of the sort in-
voked in Locke, against support for religious schools. Virginia’s opposi-
tion to establishing university theology professorships and chartering
theological seminaries, see ibid., do not fit the bill. Buckley, After Dis-
establishment: Thomas Jefferson’s Wall of Separation in Antebellum
Virginia, 61 J. So. Hist. 445, 452–453 (1995). JUSTICE BREYER also in-
vokes Madison’s objections to the Virginia Assessment Bill, post, at 8–9,
but Madison objected in part because the Bill provided special support to
certain churches and clergy, thereby “violat[ing] equality by subjecting
some to peculiar burdens.” Memorial and Remonstrance Against Reli-
gious Assessments, Art. 4, reprinted in Everson, 330 U.S., at 66 (appen-
dix to dissenting opinion of Rutledge, J.); see V. Muñoz, God and the
Founders: Madison, Washington, and Jefferson 21–22, 27 (2009). It is
far from clear that the same objections extend to programs that provide
equal support to all private primary and secondary schools. If anything,
excluding religious schools from such programs would appear to impose
the “peculiar burdens” feared by Madison.
16 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
in general”; many of its state counterparts have a similarly
“shameful pedigree.” Mitchell, 530 U.S., at 828–829 (plu-
rality opinion); see Jorgenson, supra, at 69–70, 216; Jeffries
& Ryan, A Political History of the Establishment Clause,
100 Mich. L. Rev. 279, 301–305 (2001). The no-aid provi-
sions of the 19th century hardly evince a tradition that
should inform our understanding of the Free Exercise
Clause.
The Department argues that several States have rejected
referendums to overturn or limit their no-aid provisions,
and that Montana even re-adopted its own in the 1970s, for
reasons unrelated to anti-Catholic bigotry. See Brief for Re-
spondents 20, 42. But, on the other side of the ledger, many
States today—including those with no-aid provisions—pro-
vide support to religious schools through vouchers, scholar-
ships, tax credits, and other measures. See Brief for Okla-
homa et al. as Amici Curiae 29–31, 33–35; Brief for
Petitioners 5. According to petitioners, 20 of 37 States with
no-aid provisions allow religious options in publicly funded
scholarship programs, and almost all allow religious op-
tions in tax credit programs. Reply Brief 22, n. 9.
All to say, we agree with the Department that the histor-
ical record is “complex.” Brief for Respondents 41. And it
is true that governments over time have taken a variety of
approaches to religious schools. But 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.
C
Two dissenters would chart new courses. JUSTICE
SOTOMAYOR would grant the government “some room” to
“single . . . out” religious entities “for exclusion,” based on
what she views as “the interests embodied in the Religion
Clauses.” Post, at 8, 9 (quoting Trinity Lutheran, 582 U. S.,
at ___, ___ (SOTOMAYOR, J., dissenting) (slip op., at 8, 9)).
Cite as: 591 U. S. ____ (2020) 17
Opinion of the Court
JUSTICE BREYER, building on his solo opinion in Trinity Lu-
theran, would adopt a “flexible, context-specific approach”
that “may well vary” from case to case. Post, at 14, 16; see
Trinity Lutheran, 582 U. S., at ___ (BREYER, J., concurring
in judgment). As best we can tell, courts applying this ap-
proach would contemplate the particular benefit and re-
striction at issue and discern their relationship to religion
and society, taking into account “context and consequences
measured in light of [the] purposes” of the Religion Clauses.
Post, at 16–17, 19 (quoting Van Orden v. Perry, 545 U.S.
677, 700 (2005) (BREYER, J., concurring in judgment)).
What is clear is that JUSTICE BREYER would afford much
freer rein to judges than our current regime, arguing that
“there is ‘no test-related substitute for the exercise of legal
judgment.’ ” Post, at 19 (quoting Van Orden, 545 U.S., at
700 (opinion of BREYER, J.)).
The simplest response is that these dissents follow from
prior separate writings, not from the Court’s decision in
Trinity Lutheran or the decades of precedent on which it
relied. These precedents have “repeatedly confirmed” the
straightforward rule that we apply today: When otherwise
eligible recipients are disqualified from a public benefit
“solely because of their religious character,” we must apply
strict scrutiny. Trinity Lutheran, 582 U. S., at ___–___ (slip
op., at 6–10). This rule against express religious discrimi-
nation is no “doctrinal innovation.” Post, at 13 (opinion of
BREYER, J.). Far from it. As Trinity Lutheran explained,
the rule is “unremarkable in light of our prior decisions.”
582 U. S., at ___ (slip op., at 10).
For innovation, one must look to the dissents. Their
“room[y]” or “flexible” approaches to discrimination against
religious organizations and observers would mark a signif-
icant departure from our free exercise precedents. The pro-
tections of the Free Exercise Clause do not depend on a
“judgment-by-judgment analysis” regarding whether dis-
crimination against religious adherents would somehow
18 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
serve ill-defined interests. Cf. Medellín v. Texas, 552 U.S.
491, 514 (2008).
D
Because the Montana Supreme Court applied the no-aid
provision to discriminate against schools and parents based
on the religious character of the school, the “strictest scru-
tiny” is required. Supra, at 9, 12 (quoting Trinity Lutheran,
582 U. S., at ___ (slip op., at 11)). That “stringent stand-
ard,” id., at ___ (slip op., at 14), is not “watered down but
really means what it says,” Lukumi, 508 U.S., at 546 (in-
ternal quotation marks and alterations omitted). To satisfy
it, government action “must advance ‘interests of the high-
est order’ and must be narrowly tailored in pursuit of those
interests.” Ibid. (quoting McDaniel, 435 U. S., at 628).
The Montana Supreme Court asserted that the no-aid
provision serves Montana’s interest in separating church
and State “more fiercely” than the Federal Constitution.
393 Mont., at 467, 435 P.3d, at 614. But “that interest can-
not qualify as compelling” in the face of the infringement of
free exercise here. Trinity Lutheran, 582 U. S., at ___ (slip
op., at 14). A State’s interest “in achieving greater separa-
tion of church and State than is already ensured under the
Establishment Clause . . . is limited by the Free Exercise
Clause.” Ibid. (quoting Widmar v. Vincent, 454 U.S. 263,
276 (1981)).
The Department, for its part, asserts that the no-aid pro-
vision actually promotes religious freedom. In the Depart-
ment’s view, the no-aid provision protects the religious lib-
erty of taxpayers by ensuring that their taxes are not
directed to religious organizations, and it safeguards the
freedom of religious organizations by keeping the govern-
ment out of their operations. See Brief for Respondents 17–
23. An infringement of First Amendment rights, however,
cannot be justified by a State’s alternative view that the in-
fringement advances religious liberty. Our federal system
Cite as: 591 U. S. ____ (2020) 19
Opinion of the Court
prizes state experimentation, but not “state experimenta-
tion in the suppression of free speech,” and the same goes
for the free exercise of religion. Boy Scouts of America v.
Dale, 530 U.S. 640, 660 (2000).
Furthermore, we do not see how the no-aid provision pro-
motes religious freedom. As noted, this Court has repeat-
edly upheld government programs that spend taxpayer
funds on equal aid to religious observers and organizations,
particularly when the link between government and reli-
gion is attenuated by private choices. A school, concerned
about government involvement with its religious activities,
might reasonably decide for itself not to participate in a gov-
ernment program. But we doubt that the school’s liberty is
enhanced by eliminating any option to participate in the
first place.
The Department’s argument is especially unconvincing
because the infringement of religious liberty here broadly
affects both religious schools and adherents. Montana’s no-
aid provision imposes a categorical ban—“broadly and
strictly” prohibiting “any type of aid” to religious schools.
393 Mont., at 462–463, 435 P. 3d, at 611. This prohibition
is far more sweeping than the policy in Trinity Lutheran,
which barred churches from one narrow program for play-
ground resurfacing—causing “in all likelihood” only “a few
extra scraped knees.” 582 U. S., at ___ (slip op., at 15).
And the prohibition before us today burdens not only re-
ligious schools but also the families whose children attend
or hope to attend them. Drawing on “enduring American
tradition,” we have long recognized the rights of parents to
direct “the religious upbringing” of their children. Wiscon-
sin v. Yoder, 406 U.S. 205, 213–214, 232 (1972). Many par-
ents exercise that right by sending their children to reli-
gious schools, a choice protected by the Constitution. See
Pierce v. Society of Sisters, 268 U.S. 510, 534–535 (1925).
But the no-aid provision penalizes that decision by cutting
families off from otherwise available benefits if they choose
20 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
a religious private school rather than a secular one, and for
no other reason.
The Department also suggests that the no-aid provision
advances Montana’s interests in public education. Accord-
ing to the Department, the no-aid provision safeguards the
public school system by ensuring that government support
is not diverted to private schools. See Brief for Respondents
19, 25. But, under that framing, the no-aid provision is fa-
tally underinclusive because its “proffered objectives are
not pursued with respect to analogous nonreligious con-
duct.” Lukumi, 508 U.S., at 546. On the Department’s
view, an interest in public education is undermined by di-
verting government support to any private school, yet the
no-aid provision bars aid only to religious ones. A law does
not advance “an interest of the highest order when it leaves
appreciable damage to that supposedly vital interest unpro-
hibited.” Id., at 547 (internal quotation marks and altera-
tions omitted). Montana’s interest in public education can-
not justify a no-aid provision that requires only religious
private schools to “bear [its] weight.” Ibid.
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.
III
The Department argues that, at the end of the day, there
is no free exercise violation here because the Montana Su-
preme Court ultimately eliminated the scholarship pro-
gram altogether. According to the Department, now that
there is no program, religious schools and adherents cannot
complain that they are excluded from any generally availa-
ble benefit.
Two dissenters agree. JUSTICE GINSBURG reports that
the State of Montana simply chose to “put all private school
parents in the same boat” by invalidating the scholarship
program, post, at 5–6, and JUSTICE SOTOMAYOR describes
Cite as: 591 U. S. ____ (2020) 21
Opinion of the Court
the decision below as resting on state law grounds having
nothing to do with the federal Free Exercise Clause, see
post, at 1, 6.
The descriptions are not accurate. The Montana Legisla-
ture created the scholarship program; the Legislature never
chose to end it, for policy or other reasons. The program
was eliminated by a court, and not based on some innocuous
principle of state law. Rather, the Montana Supreme Court
invalidated the program pursuant to a state law provision
that expressly discriminates on the basis of religious status.
The Court applied that provision to hold that religious
schools were barred from participating in the program.
Then, seeing no other “mechanism” to make absolutely sure
that religious schools received no aid, the court chose to in-
validate the entire program. 393 Mont., at 466–468, 435
P.3d, at 613–614.
The final step in this line of reasoning eliminated the pro-
gram, to the detriment of religious and non-religious
schools alike. But the Court’s error of federal law occurred
at the beginning. When the Court was called upon to apply
a state law no-aid provision to exclude religious schools
from the program, it was obligated by the Federal Consti-
tution to reject the invitation. Had the Court recognized
that this was, indeed, “one of those cases” in which applica-
tion of the no-aid provision “would violate the Free Exercise
Clause,” id., at 468, 435 P.3d, at 614, the Court would not
have proceeded to find a violation of that provision. And, in
the absence of such a state law violation, the Court would
have had no basis for terminating the program. Because
the elimination of the program flowed directly from the
Montana Supreme Court’s failure to follow the dictates of
federal law, it cannot be defended as a neutral policy deci-
sion, or as resting on adequate and independent state law
22 ESPINOZA v. MONTANA DEPT. OF REVENUE
Opinion of the Court
grounds.4
The Supremacy Clause provides that “the Judges in every
State shall be bound” by the Federal Constitution, “any
Thing in the Constitution or Laws of any State to the Con-
trary notwithstanding.” Art. VI, cl. 2. “[T]his Clause cre-
ates a rule of decision” directing state courts that they
“must not give effect to state laws that conflict with federal
law[ ].” Armstrong v. Exceptional Child Center, Inc., 575
U.S. 320, 324 (2015). Given the conflict between the Free
Exercise Clause and the application of the no-aid provision
here, the Montana Supreme Court should have “disre-
gard[ed]” the no-aid provision and decided this case “con-
formably to the [C]onstitution” of the United States. Mar-
bury v. Madison, 1 Cranch 137, 178 (1803). That “supreme
law of the land” condemns discrimination against religious
schools and the families whose children attend them. Id.,
at 180. They are “member[s] of the community too,” and
their exclusion from the scholarship program here is “odi-
ous to our Constitution” and “cannot stand.” Trinity Lu-
theran, 582 U. S., at ___, ___ (slip op., at 11, 15).5
* * *
The judgment of the Montana Supreme Court is reversed,
and the case is remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
——————
4 JUSTICE SOTOMAYOR worries that, in light of our decision, the Mon-
tana Supreme Court must “order the State to recreate” a scholarship pro-
gram that “no longer exists.” Post, at 6 (dissenting opinion). But it was
the Montana Supreme Court that eliminated the program, in the deci-
sion below, which remains under review. Our reversal of that decision
simply restores the status quo established by the Montana Legislature
before the Court’s error of federal law. We do not consider any altera-
tions the Legislature may choose to make in the future.
5 In light of this holding, we do not address petitioners’ claims that the
no-aid provision, as applied, violates the Equal Protection Clause or the
Establishment Clause.
Cite as: 591 U. S. ____ (2020) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring.
The Court correctly concludes that Montana’s no-aid pro-
vision expressly discriminates against religion in violation
of the Free Exercise Clause. And it properly provides relief
to Montana religious schools and the petitioners who wish
to use Montana’s scholarship program to send their chil-
dren to such schools. I write separately to explain how this
Court’s interpretation of the Establishment Clause contin-
ues to hamper free exercise rights. Until we correct course
on that interpretation, individuals will continue to face
needless obstacles in their attempts to vindicate their reli-
gious freedom.
I
A
This case involves the Free Exercise Clause, not the Es-
tablishment Clause. But as in all cases involving a state
actor, the modern understanding of the Establishment
Clause is a “brooding omnipresence,” Southern Pacific Co.
v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting),
ever ready to be used to justify the government’s infringe-
ment on religious freedom. Under the modern, but errone-
ous, view of the Establishment Clause, the government
must treat all religions equally and treat religion equally to
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
THOMAS, J., concurring
nonreligion. As this Court stated in its first case applying
the Establishment Clause to the States, the government
cannot “pass laws which aid one religion, aid all religions,
or prefer one religion over another.” Everson v. Board of
Ed. of Ewing, 330 U.S. 1, 15 (1947); see also post, at 3
(BREYER, J., dissenting). This “equality principle,” the the-
ory goes, prohibits the government from expressing any
preference for religion—or even permitting any signs of re-
ligion in the governmental realm. Thus, when a plaintiff
brings a free exercise claim, the government may defend its
law, as Montana did here, on the ground that the law’s re-
strictions are required to prevent it from “establishing” re-
ligion.
This understanding of the Establishment Clause is un-
moored from the original meaning of the First Amendment.
As I have explained in previous cases, at the founding, the
Clause served only to “protec[t] States, and by extension
their citizens, from the imposition of an established religion
by the Federal Government.” Zelman v. Simmons-Harris,
536 U.S. 639, 678 (2002) (THOMAS, J., concurring) (empha-
sis added); see also, e.g., Town of Greece v. Galloway, 572
U.S. 565, 604–607 (2014) (THOMAS, J., concurring in part
and concurring in judgment); Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 49–50 (2004) (THOMAS, J., con-
curring in judgment). Under this view, the Clause resists
incorporation against the States. See Town of Greece, 572
U.S., at 604 (opinion of THOMAS, J.).
There is mixed historical evidence concerning whether
the Establishment Clause was understood as an individual
right at the time of the Fourteenth Amendment’s ratifica-
tion. Id., at 607–608. Even assuming that the Clause cre-
ates a right and that such a right could be incorporated,
however, it would only protect against an “establishment”
of religion as understood at the founding, i.e., “ ‘coercion of
religious orthodoxy and of financial support by force of law
and threat of penalty.’ ” Id., at 608 (quoting Lee v. Weisman,
Cite as: 591 U. S. ____ (2020) 3
THOMAS, J., concurring
505 U.S. 577, 640 (1992) (Scalia, J., dissenting); emphasis
deleted); American Legion v. American Humanist Assn.,
588 U. S. ___, ___ (2019) (THOMAS, J., concurring in judg-
ment) (slip op., at 3); see also McConnell, Establishment
and Disestablishment at the Founding, Part I: Establish-
ment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131–2181
(2003); McConnell, Coercion: The Lost Element of Estab-
lishment, 27 Wm. & Mary L. Rev. 933, 936–939 (1986).1
Thus, the modern view, which presumes that States must
remain both completely separate from and virtually silent
on matters of religion to comply with the Establishment
Clause, is fundamentally incorrect. Properly understood,
the Establishment Clause does not prohibit States from fa-
voring religion. They can legislate as they wish, subject
only to the limitations in the State and Federal Constitu-
tions. See Muñoz, The Original Meaning of the Establish-
ment Clause and the Impossibility of Its Incorporation, 8
U. Pa. J. Const. L. 585, 632 (2006).
B
I have previously made these points in Establishment
Clause cases to show that the Clause likely has no applica-
tion to the States or, if it is capable of incorporation, that
the Court employs a far broader test than the Clause’s orig-
inal meaning. See, e.g., American Legion, 588 U. S., at ___
(opinion concurring in judgment) (slip op., at 1); Town of
Greece, 572 U.S., at 604 (opinion concurring in part and
concurring in judgment). But the Court’s wayward ap-
proach to the Establishment Clause also impacts its free
exercise jurisprudence. Specifically, its overly expansive
——————
1 A party wishing to expand the scope of the Establishment Clause be-
yond its meaning at the founding carries the burden of demonstrating
that this broader reading is historically sound. Town of Greece v. Gallo-
way, 572 U.S. 565, 607–608 (2014) (THOMAS, J., concurring in part and
concurring in judgment).
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
THOMAS, J., concurring
understanding of the former Clause has led to a correspond-
ingly cramped interpretation of the latter.
Under this Court’s current approach, state and local gov-
ernments may rely on the Establishment Clause to justify
policies that others wish to challenge as violations of the
Free Exercise Clause. Once the government demonstrates
that its policy is required for compliance with the Constitu-
tion, any claim that the policy infringes on free exercise can-
not survive. A few examples suffice to illustrate this prac-
tice.
Of most relevance to this case is Locke v. Davey, 540 U.S.
712 (2004), which Montana principally relies on to justify
its discriminatory law. In Locke, the Court held that pro-
hibiting a student from using a generally available state
scholarship to pursue a degree in devotional theology did
not violate the student’s free exercise rights. This was so,
the Court said, in part because it furthered the State’s “an-
tiestablishment interests” in avoiding the education of reli-
gious ministers. Id., at 722. But no antiestablishment in-
terests, properly understood, were at issue in Locke. The
State neither coerced students to study devotional theology
nor conscripted taxpayers into supporting any form of or-
thodoxy. Thus, as I have explained, Locke incorrectly inter-
preted the Establishment Clause and should not impact
free exercise challenges. Trinity Lutheran Church of Co-
lumbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (THOMAS,
J., concurring). Yet, as Montana’s proffered justification for
its law shows, governments continue to rely on Locke’s im-
proper understanding of “antiestablishment interests” to
defend against free exercise challenges. See Brief for State
of Colorado et al. as Amici Curiae 3, 10–12 (arguing that
Locke justifies the 38 state constitutional provisions that
are similar to Montana’s); see also Trinity Lutheran Church
of Columbia, Inc. v. Pauley, 788 F.3d 779, 785 (CA8 2015),
rev’d and remanded, 582 U. S. ___; Eulitt v. Maine, 386
Cite as: 591 U. S. ____ (2020) 5
THOMAS, J., concurring
F. 3d 344, 354 (CA1 2004); post, at 5–8 (BREYER, J., dissent-
ing); post, at 9–10 (SOTOMAYOR, J., dissenting).
The Court has also repeatedly stated that a government
has a compelling interest in avoiding an Establishment
Clause violation altogether, which “may justify” abridging
other First Amendment freedoms. See Good News Club v.
Milford Central School, 533 U.S. 98, 112 (2001); Lamb’s
Chapel v. Center Moriches Union Free School Dist., 508
U.S. 384, 394 (1993); Widmar v. Vincent, 454 U.S. 263, 271
(1981). Unsurprisingly, governmental employers have re-
lied on these pronouncements to defeat challenges from em-
ployees who alleged violations of their First Amendment
rights. See, e.g., Berry v. Department of Social Servs., 447
F.3d 642, 650–651 (CA9 2006); Knight v. Connecticut Dept.
of Public Health, 275 F.3d 156, 166 (CA2 2001); Marchi v.
Board of Cooperative Ed. Servs. of Albany, 173 F.3d 469,
475 (CA2 1999).
Finally, this Court’s infamous test in Lemon v. Kurtzman,
403 U.S. 602 (1971), has sometimes been understood to
prohibit governmental practices that have the effect of en-
dorsing religion. See Lynch v. Donnelly, 465 U.S. 668, 692
(1984) (O’Connor, J., concurring). This, too, presupposes
that the Establishment Clause prohibits the government
from favoring religion or taking steps to promote it. But as
described supra, at 2–3, the Establishment Clause does
nothing of the sort. The concern with avoiding endorsement
has nevertheless been used to prohibit voluntary practices
that potentially implicate free exercise rights, with courts
and governments going so far as to make the “remarkable”
suggestion “that even while off duty, a teacher or coach can-
not engage in any outward manifestation of religious faith.”
Kennedy v. Bremerton School Dist., 586 U. S. ___, ___ (2019)
(slip op., at 5) (ALITO, J., concurring in denial of certiorari);
see Santa Fe Independent School Dist. v. Doe, 530 U.S. 290,
308 (2000) (voluntary decision to begin football games with
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
THOMAS, J., concurring
a prayer violated the Establishment Clause); see also Ken-
nedy v. Bremerton School Dist., 869 F.3d 813, 831 (CA9
2017) (M. Smith, J., concurring) (coach’s decision to lead
voluntary prayer after football games); Walz v. Egg Harbor
Twp. Bd. of Ed., 342 F.3d 271, 280 (CA3 2003) (student’s
decision to distribute small gifts with religious messages to
classmates).
II
The Court’s current understanding of the Establishment
Clause actually thwarts, rather than promotes, equal treat-
ment of religion. Under a proper understanding of the Es-
tablishment Clause, robust and lively debate about the role
of religion in government is permitted, even encouraged, at
the state and local level. The Court’s distorted view of the
Establishment Clause, however, removes the entire subject
of religion from the realm of permissible governmental ac-
tivity, instead mandating strict separation.
This interpretation of the Establishment Clause operates
as a type of content-based restriction on the government.
The Court has interpreted the Free Speech Clause to pro-
hibit content-based restrictions because they “value some
forms of speech over others,” City of Ladue v. Gilleo, 512
U.S. 43, 60 (1994) (O’Connor, J., concurring), thus tending
to “tilt public debate in a preferred direction,” Sorrell v. IMS
Health Inc., 564 U.S. 552, 578–579 (2011). The content-
based restriction imposed by this Court’s Establishment
Clause jurisprudence operates no differently. It communi-
cates a message that religion is dangerous and in need of
policing, which in turn has the effect of tilting society in fa-
vor of devaluing religion.
Historical evidence suggests that many advocates for this
separationist view were originally motivated by hostility to-
ward certain disfavored religions. See P. Hamburger, Sep-
aration of Church and State 391–454 (2002). And this
Court’s adoption of a separationist interpretation has itself
Cite as: 591 U. S. ____ (2020) 7
THOMAS, J., concurring
sometimes bordered on religious hostility. Justice Black,
well known for his role in formulating the Court’s modern
Establishment Clause jurisprudence, once described Cath-
olic petitioners as “powerful sectarian religious propagan-
dists” “looking toward complete domination and suprem-
acy” of their “preferences and prejudices.” Board of Ed. of
Central School Dist. No. 1 v. Allen, 392 U.S. 236, 251 (1968)
(dissenting opinion). Other Members of the Court have
characterized religions as “divisive forces.” Edwards v.
Aguillard, 482 U.S. 578, 584 (1987) (internal quotation
marks omitted); Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U.S. 226, 287 (1990) (Ste-
vens, J., dissenting) (internal quotation marks omitted); Il-
linois ex rel. McCollum v. Board of Ed. of School Dist. No.
71, Champaign Cty., 333 U.S. 203, 231 (1948) (Frankfur-
ter, J., concurring). And the Court once described a statute
permitting employees to request accommodations to avoid
work on the Sabbath as “arm[ing]” religious employees with
the “absolute and unqualified right” to pursue their religion
“over all other . . . interests.” Estate of Thornton v. Caldor,
Inc., 472 U.S. 703, 709–711 (1985). The siren song of reli-
gion is apparently so strong that we once held that public
school teachers cannot provide assistance at parochial
schools, lest they “subtly (or overtly) conform their instruc-
tion to the environment in which they teach.” School Dist.
of Grand Rapids v. Ball, 473 U.S. 373, 388 (1985), over-
ruled by Agostini v. Felton, 521 U.S. 203, 235 (1997). In
the Court’s view, “[t]he ‘atmosphere’ of a Catholic school
ha[d] such power to influence the unsuspecting mind that
it may move even public school . . . specialists to ‘conform’—
though their only contact with the school is to walk down
its halls.” McConnell, Religious Freedom at a Crossroads,
59 U. Chi. L. Rev. 115, 122 (1992).
Although such hostility may not be overtly expressed by
the Court any longer, manifestations of this “trendy disdain
for deep religious conviction” assuredly live on. Locke, 540
8 ESPINOZA v. MONTANA DEPT. OF REVENUE
THOMAS, J., concurring
U. S., at 733 (Scalia, J., dissenting). They are evident in the
fact that, unlike other constitutional rights, the mere expo-
sure to religion can render an “ ‘offended observer’ ” suffi-
ciently injured to bring suit against the government, Amer-
ican Legion, 588 U. S., at ___ (GORSUCH, J., concurring in
judgment) (slip op., at 2), even if he has not been coerced in
any way to participate in a religious practice, Lee, 505 U.S.,
at 584; Engel v. Vitale, 370 U.S. 421, 430 (1962).2 We also
see them in the special privilege of taxpayer standing in Es-
tablishment Clause challenges, even though such suits di-
rectly contravene Article III’s restrictions on standing. See
Hein v. Freedom From Religion Foundation, Inc., 551 U.S.
587, 618 (2007) (Scalia, J., concurring in judgment); see also
Bowen v. Kendrick, 487 U.S. 589, 618–620 (1988); Flast v.
Cohen, 392 U.S. 83, 102–104 (1968). And they persist in
the repeated denigration of those who continue to adhere to
traditional moral standards, as well as laws even remotely
influenced by such standards, as outmoded at best and big-
oted at worst. See Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (THOMAS, J.,
concurring in part and concurring in judgment) (slip op., at
14); Obergefell v. Hodges, 576 U.S. 644, 712 (2015)
(ROBERTS, C. J., dissenting). So long as this hostility re-
mains, fostered by our distorted understanding of the Es-
tablishment Clause, free exercise rights will continue to
suffer.
* * *
As I have recently explained, this Court has an unfortu-
nate tendency to prefer certain constitutional rights over
others. See United States v. Sineneng-Smith, ante, at 6
——————
2 This stands in striking contrast to the Court’s view in the free speech
context that “the burden normally falls upon the viewer” to avoid offense
“simply by averting his eyes.” Hill v. Colorado, 530 U.S. 703, 753, n. 3
(2000) (Scalia, J., dissenting) (quoting Erznoznik v. Jacksonville, 422
U.S. 205, 210–211 (1975); quotation altered)).
Cite as: 591 U. S. ____ (2020) 9
THOMAS, J., concurring
(THOMAS, J., concurring). The Free Exercise Clause, alt-
hough enshrined explicitly in the Constitution, rests on the
lowest rung of the Court’s ladder of rights, and precariously
so at that. Returning the Establishment Clause to its
proper scope will not completely rectify the Court’s dispar-
ate treatment of constitutional rights, but it will go a long
way toward allowing free exercise of religion to flourish as
the Framers intended. I look forward to the day when the
Court takes up this task in earnest.
Cite as: 591 U. S. ____ (2020) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
JUSTICE ALITO, concurring.
I join the opinion of the Court in full. The basis of the
decision below was a Montana constitutional provision
that, according to the Montana Supreme Court, forbids par-
ents from participating in a publicly funded scholarship
program simply because they send their children to reli-
gious schools. Regardless of the motivation for this provi-
sion or its predecessor, its application here violates the Free
Exercise Clause.
Nevertheless, the provision’s origin is relevant under the
decision we issued earlier this Term in Ramos v. Louisiana,
590 U. S. ___ (2020). The question in Ramos was whether
Louisiana and Oregon laws allowing non-unanimous jury
verdicts in criminal trials violated the Sixth Amendment.
The Court held that they did, emphasizing that the States
originally adopted those laws for racially discriminatory
reasons. See id., at ___–___ (slip op., at 1–3). The role
of the Ku Klux Klan was highlighted. See ibid.; see also id.,
at ___ (SOTOMAYOR, J., concurring in part) (slip op., at 4);
id., at ___ (KAVANAUGH, J., concurring in part) (slip op.,
at 12).
I argued in dissent that this original motivation, though
deplorable, had no bearing on the laws’ constitutionality be-
cause such laws can be adopted for non-discriminatory rea-
sons, and “both States readopted their rules under different
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
ALITO, J., concurring
circumstances in later years.” Id., at ___ (slip op., at 3). But
I lost, and Ramos is now precedent. If the original motiva-
tion for the laws mattered there, it certainly matters here.
The origin of Montana’s “no-aid” provision, Mont. Const.,
Art. X, §6(1) (1972), is emphasized in petitioners’ brief and
in the briefs of numerous supporting amici. See Brief for
Petitioners 31–45; Brief for United States as Amicus Curiae
1–2, 25; Brief for Center for Constitutional Jurisprudence
as Amicus Curiae 10–12; Brief for Pioneer Institute, Inc., as
Amicus Curiae 5–17; Brief for Cato Institute as Amicus Cu-
riae 2; Brief for State of Oklahoma et al. as Amici Curiae
16; Brief for Montana Catholic School Parents et al. as
Amici Curiae 21–25; Brief for Senator Steve Daines et al.
as Amici Curiae 1–27 (Sen. Daines Brief ); Brief for Becket
Fund for Religious Liberty as Amicus Curiae 4–20 (Becket
Fund Brief ); Brief for the Rutherford Institute as Amicus
Curiae 2–10; Brief for Georgia Goal Scholarship Program,
Inc., as Amicus Curiae 1–5, 16–21; Brief for Liberty Justice
Center et al. as Amici Curiae 16–17; Brief for Alliance for
Choice in Education as Amicus Curiae 4–8; Brief for Inde-
pendence Institute as Amicus Curiae 4–26 (Independence
Institute Brief ); Brief for Jewish Coalition for Religious
Liberty as Amicus Curiae 1–5; Brief for Rusty Bowers et al.
as Amici Curiae 8–9; Brief for Center for Education Reform
et al. as Amici Curiae 21–27 (CER Brief ); Brief for Montana
Family Foundation as Amicus Curiae 9–13; Brief for Ari-
zona Christian School Tuition Organization et al. as Amici
Curiae 14–22; Brief for Justice and Freedom Fund et al. as
Amici Curiae 22–23; Brief for 131 Current and Former
State Legislators as Amici Curiae 2–10.
These briefs, most of which were not filed by organiza-
tions affiliated with the Catholic Church, point out that
Montana’s provision was modeled on the failed Blaine
Amendment to the Constitution of the United States.
Named after House Speaker James Blaine, the Congress-
man who introduced it in 1875, the amendment was
Cite as: 591 U. S. ____ (2020) 3
ALITO, J., concurring
prompted by virulent prejudice against immigrants, partic-
ularly Catholic immigrants. In effect, the amendment
would have “bar[red] any aid” to Catholic and other “sec-
tarian” schools. Mitchell v. Helms, 530 U.S. 793, 828 (2000)
(plurality opinion). As noted in a publication from the
United States Commission on Civil Rights, a prominent
supporter of this ban was the Ku Klux Klan.1
The Blaine Amendment was narrowly defeated, passing
in the House but falling just short of the two-thirds majority
needed in the Senate to refer the amendment to the States.
See 4 Cong. Rec. 5191–5192 (1876) (House vote); id., at 5595
(28 yeas, 16 nays in the Senate). Afterwards, most States
adopted provisions like Montana’s to achieve the same ob-
jective at the state level, often as a condition of entering the
Union. Thirty-eight States still have these “little Blaine
Amendments” today. See App. D to Brief for Respondents.
This history is well-known and has been recognized in
opinions of this Court. See, e.g., Locke v. Davey, 540 U.S.
712, 723, n. 7 (2004); Mitchell, 530 U.S., at 828–829 (plu-
rality opinion); see also ante, at 15–16; Zelman v. Simmons-
Harris, 536 U.S. 639, 720–721 (2002) (BREYER, J., dissent-
ing). But given respondents’ and one dissent’s efforts to
downplay it in contravention of Ramos, see Brief for Re-
spondents 16–23; post, at 4–5, n. 2 (SOTOMAYOR, J., dissent-
ing), it deserves a brief retelling.
A wave of immigration in the mid-19th century, spurred
in part by potato blights in Ireland and Germany, signifi-
cantly increased this country’s Catholic population.2 Nativ-
ist fears increased with it. An entire political party, the
Know Nothings, formed in the 1850s “to decrease the polit-
——————
1 See U. S. Commission on Civil Rights, School Choice: The Blaine
Amendments & Anti-Catholicism 36 (2007).
2 See T. Anbinder, Nativism and Slavery: The Northern Know Noth-
ings and the Politics of the 1850s, pp. 6–8 (1992).
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
ALITO, J., concurring
ical influence of immigrants and Catholics,” gaining hun-
dreds of seats in Federal and State Government.3
Catholics were considered by such groups not as citizens
of the United States, but as “soldiers of the Church of
Rome,”4 who “would attempt to subvert representative gov-
ernment.”5 Catholic education was a particular concern. As
one series of newspaper articles argued, “ ‘Popery is the nat-
ural enemy of general education. . . . If it is establishing
schools, it is to make them prisons of the youthful intellect
of the country.’ ” C. Glenn, The Myth of the Common School
69 (1988) (Glenn) (quoting S. Morse, Foreign Conspiracy
Against the Liberties of the United States (1835)). With a
Catholic school breaking ground in New York City, the New
York Times ran an article titled “Sectarian Education.
Anti-Public School Crusade. Aggressive Attitude of the Ro-
man Catholic Clergy—The Terrors of the Church Threat-
ened.” N. Y. Times, Aug. 24, 1873, p. 8. The project, the
article concluded, would cause “intense anxiety by all who
are interested in upholding the admirable system of public
school education.” Ibid.
The feelings of the day are perhaps best encapsulated by
this famous cartoon, published in Harper’s Weekly in 1871,
which depicts Catholic priests as crocodiles slithering hun-
grily toward American children as a public school crumbles
in the background:
——————
3 Id., at 127–128, 135.
4 Id., at 110 (emphasis deleted).
5 P. Hamburger, Separation of Church and State 206 (2002).
Cite as: 591 U. S. ____ (2020) 5
ALITO, J., concurring
The resulting wave of state laws withholding public aid
from “sectarian” schools cannot be understood outside this
context. Indeed, there are stronger reasons for considering
original motivations here than in Ramos because, unlike
the neutral language of Louisiana’s and Oregon’s non-
unanimity rules, Montana’s no-aid provision retains the
bigoted code language used throughout state Blaine
Amendments.
The failed Blaine Amendment would have prohibited any
public funds or lands devoted to schooling from “ever be[ing]
under the control of any religious sect.” 4 Cong. Rec. 205
(1875). As originally adopted, Montana’s Constitution pro-
hibited the state and local governments from “ever
mak[ing,] directly or indirectly, any appropriation” for “any
sectarian purpose” or “to aid in the support of any school . . .
controlled in whole or in part by any church, sect or denom-
ination whatever.” Mont. Const., Art. XI, §8 (1889). At the
time, “it was an open secret that ‘sectarian’ was code for
‘Catholic.’ ” Mitchell, 530 U.S., at 828 (plurality opinion).
Dictionaries defined a “sectarian” as a member “of a party
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
ALITO, J., concurring
in religion which has separated itself from the established
church, or which holds tenets different from those of the
prevailing denomination in a kingdom or state”—a heretic.
N. Webster, An American Dictionary of the English Lan-
guage (1828); see also Independence Institute Brief 9–16
(collecting several similar definitions). Newspapers
throughout the country, including in Montana, used the
word in similarly pejorative fashion. See id., at 17–26 (col-
lecting several articles). The term was likewise used
against Mormons and Jews.6
Backers of the Blaine Amendment either held nativist
views or capitalized on them. When Blaine introduced the
amendment, The Nation reported that it was “a Constitu-
tional amendment directed against the Catholics”—while
surmising that Blaine, whose Presidential ambitions were
known, sought “to use it in the campaign to catch anti-
Catholic votes.”7 The amendment had its intended galva-
nizing effect. “Its popularity was so great” that “even con-
gressional Democrats,” who depended on Catholic votes,
“were expected to support it,” and the congressional floor
debates were rife with anti-Catholic sentiment, including “a
tirade against Pope Pius IX.”8
Montana’s no-aid provision was the result of this same
prejudice. When Congress allowed Montana into the Union
in 1889, it still included prominent supporters of the failed
Blaine Amendment. See Sen. Daines Brief 10–13. The Act
enabling Montana to become a State required “[t]hat provi-
sion shall be made for the establishment and maintenance
——————
6 See Natelson, Why Nineteenth Century Bans on “Sectarian” Aid Are
Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federal-
ist Soc. Rev. 98, 104 (2018).
7 Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist.
38, 54 (1992) (quoting article; internal quotation marks omitted).
8 DeForrest, An Overview and Evaluation of State Blaine Amend-
ments: Origins, Scope, and First Amendment Concerns, 26 Harv. J. L. &
Pub. Pol’y 551, 566, 570 (2003); see also, e.g., Becket Fund Brief 5–11.
Cite as: 591 U. S. ____ (2020) 7
ALITO, J., concurring
of systems of public schools . . . free from sectarian control.”
Act of Feb. 22, 1889, §4, 25 Stat. 677; see also Becket Fund
Brief 17–18 (quoting one Senator’s description of the Act as
“ ‘completing the unfinished work of the failed Blaine
Amendment’ ”). Montana thereafter adopted its constitu-
tional rule against public funding for any school “con-
trolled” by a “sect.” Mont. Const., Art. XI, §8 (1889). There
appears to have been no doubt which schools that meant.
As petitioners show, Montana’s religious schools—and its
private schools in general—were predominantly Catholic,
see Brief for Petitioners 42, and n. 41, and anti-Catholicism
was alive in Montana too. See, e.g., Sen. Daines Brief 1–3
(describing a riot over an anti-Catholic sign hung over a
Butte saloon on Independence Day, 1894).
Respondents argue that Montana’s no-aid provision
merely reflects a state interest in “preserv[ing] funding for
public schools,” Brief for Respondents 7, known as “common
schools” during the Blaine era. Yet just as one cannot sep-
arate the Blaine Amendment from its context, “[o]ne cannot
separate the founding of the American common school and
the strong nativist movement.”9
Spearheaded by Horace Mann, Secretary of the Massa-
chusetts Board of Education from 1837 to 1848, the
common-school movement did not aim to establish a system
that was scrupulously neutral on matters of religion. (In a
country like ours, that would have been exceedingly diffi-
cult, if not impossible.) Instead the aim was to establish a
system that would inculcate a form of “least-common-
denominator Protestantism.”10 This was accomplished with
——————
9 Viteritti, Blaine’s Wake: School Choice, the First Amendment, and
State Constitutional Law, 21 Harv. J. L. & Pub. Pol’y 657, 667 (1998)
(Viteritti, Blaine’s Wake).
10 Jeffries & Ryan, A Political History of the Establishment Clause, 100
Mich. L. Rev. 279, 298 (2001) (Jeffries & Ryan); see also, e.g., CER Brief
23–26.
8 ESPINOZA v. MONTANA DEPT. OF REVENUE
ALITO, J., concurring
daily reading from the King James Bible, a curriculum that,
Mann said, let the book “speak for itself.” 4 Life and Works
of Horace Mann 312 (1891) (Mann’s 12th annual report on
the Massachusetts schools; emphasis deleted). Yet it was
an affront to many Christians and especially Catholics, not
to mention non-Christians.11
Mann’s goal was to “Americanize” the incoming Catholic
immigrants. In fact, he and other proponents of the
common-school movement used language and made insinu-
ations that today would be considered far more inflamma-
tory. In his 10th annual report on the Massachusetts
schools, Mann described the State as “parental,” assuming
the responsibility of weaning children “[f ]or the support of
the poor, nine-tenths of whose cost originate with foreigners
or come from one prolific vice,” meaning alcohol. 4 Life and
Works of Horace Mann, at 132, 134 (emphasis deleted). In
other writing, he described the common-school movement
as “ ‘laboring to elevate mankind into the upper and purer
regions of civilization, Christianity, and the worship of the
true God; all those who are obstructing the progress of this
cause are impelling the race backwards into barbarism and
idolatry.’ ” Glenn 171–172 (quoting an 1846 article by
Mann in the Common School Journal).
These “obstructers” were Catholic and other religious
groups and families who objected to the common schools’
religious programming, which, as just seen, was not neutral
on matters of religion. Objections met violent response. In
Massachusetts and elsewhere, Catholic students were
beaten and expelled for refusing to read from the King
James Bible.12 In New York, a mob destroyed the residence
of Bishop John Hughes, who had argued that, if the State
——————
11 See Glenn 166; Lain, God, Civic Virtue, and the American Way: Re-
constructing Engel, 67 Stan. L. Rev. 479, 487–488 (2015).
12 See Jeffries & Ryan 300.
Cite as: 591 U. S. ____ (2020) 9
ALITO, J., concurring
was going to fund religious public education, it should also
support church schools. The militia needed to be called to
protect St. Patrick’s Cathedral.13 Most notorious were the
Philadelphia Bible Riots. In 1844, a rumor circulated in the
city’s nativist newspapers that a school director, who was
Catholic, had ordered that Bible reading be stopped.14
Months of scaremongering broke out into riots that left two
of the city’s Catholic churches burned and several people
dead. Only by calling out the militia and positioning a can-
non in front of a Catholic church—which itself had been
taking cannon fire—were the riots ultimately quelled.15
Catholic and Jewish schools sprang up because the com-
mon schools were not neutral on matters of religion. “Faced
with public schools that were culturally Protestant and
with curriculum[s] and textbooks that were, consequently,
rife with material that Catholics and Jews found offensive,
many Catholics and Orthodox Jews created separate
schools,” and those “who could afford to do so sent their chil-
dren to” those schools.16
But schools require significant funding, and when reli-
gious organizations requested state assistance, Mann and
others labeled them “sectarian”—that is, people who had
separated from the prevailing orthodoxy. See, e.g., Jeffries
& Ryan 298, 301. The Blaine movement quickly followed.
——————
13 See Viteritti, Choosing Equality: School Choice, the Constitution,
and Civil Society 151 (1999).
14 See Sekulow & Tedesco, The Story Behind Vidal v. Girard’s Execu-
tors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty,
32 Pepperdine L. Rev. 605, 630 (2005).
15 See id., at 633–638.
16 Brief for Union of Orthodox Jewish Congregations of America as
Amicus Curiae in Trinity Lutheran Church of Columbia, Inc. v. Comer,
O. T. 2016, No. 15–577, p. 15 (internal quotation marks, citation, and
brackets omitted).
10 ESPINOZA v. MONTANA DEPT. OF REVENUE
ALITO, J., concurring
In 1854, the Know Nothing party, in many ways a forerun-
ner of the Ku Klux Klan,17 took control of the legislature in
Mann’s State of Massachusetts and championed one of the
first constitutional bans on aid to “sectarian” schools (along
with attempting to limit the franchise to native-born peo-
ple). See Viteritti, Blaine’s Wake 669–670.
Respondents and one dissent argue that Montana’s no-
aid provision was cleansed of its bigoted past because it was
readopted for non-bigoted reasons in Montana’s 1972 con-
stitutional convention. See post, at 4–5, n. 2 (opinion of
SOTOMAYOR, J.); see also Brief for Respondents 18; Tr. of
Oral Arg. 22–23. They emphasize that the convention in-
cluded Catholics, just as the constitutional convention that
readopted Louisiana’s purportedly racist non-unanimous
jury provision included black delegates. As noted, a virtu-
ally identical argument was rejected in Ramos, even though
“ ‘no mention was made of race’ ” during the Louisiana con-
vention debates. 590 U. S., at ___ (ALITO, J., dissenting)
(slip op., at 3) (quoting State v. Hankton, 2012–0375, p. 19
(La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038). Under Ra-
mos, it emphatically does not matter whether Montana re-
adopted the no-aid provision for benign reasons. The pro-
vision’s “uncomfortable past” must still be “[e]xamined.”
590 U. S., at ___, n. 44 (opinion of the Court) (slip op., at 14,
n. 44). And here, it is not so clear that the animus was
scrubbed.
Delegates at Montana’s constitutional convention in 1972
acknowledged that the no-aid provision was “a badge of big-
otry,” with one Catholic delegate recalling “being let out of
school in the fourth grade to erase three ‘Ks’ on the front
doors of the Catholic church in Billings.”18 Nevertheless the
——————
17 See generally Myers, Know Nothing and Ku Klux Klan, 219 North
American Rev. 1 (Jan. 1924).
18 6 Montana Constitutional Convention 1971–1972, Proceedings and
Cite as: 591 U. S. ____ (2020) 11
ALITO, J., concurring
convention proposed, and the State adopted, a provision
with the same material language, prohibiting public aid “for
any sectarian purpose or to aid any . . . school . . . controlled
in whole or in part by any church, sect, or denomination.”
Mont. Const., Art. X, §6(1) (1972) (emphasis added). A lead-
ing definition of “sect” at the time, as during the Blaine era,
was “a dissenting religious body; esp: one that is heretical in
the eyes of other members within the same communion.”
Webster’s Third New International Dictionary 2052 (1971)
(emphasis added).
Given the history above, the terms “sect” and “sectarian”
are disquieting remnants. And once again, there appears
to have been little doubt which schools this provision would
predominantly affect. In 1970, according to the National
Center for Educational Statistics, Montana had 61 reli-
giously affiliated schools. Forty-five were Roman Catho-
lic.19 Not only did the convention delegates acknowledge
the no-aid provision’s original anti-Catholic intent, but the
Montana Supreme Court had only ever applied the provi-
sion once—to a Catholic school, and one that had “carrie[d]
a sizeable portion of the total educational load” in Ana-
conda, Montana. State ex rel. Chambers v. School Dist. No.
10 of Deer Lodge Cty., 155 Mont. 422, 430, 472 P.2d 1013,
1017 (1970) (per curiam). The Montana Catholic Confer-
ence also voiced concerns about access to school funds, and
a convention delegate proposed removing the no-aid provi-
sion’s restriction on “indirect” aid. See Convention Tr.
——————
Transcript, p. 2012 (Mont. Legislature and Legislative Council) (Conven-
tion Tr.) (statement of Delegate Schiltz); see also, e.g., id., at 2010 (state-
ment of Delegate Harbaugh) (recognizing the provision as a Blaine
Amendment, which “espoused the purpose of the Know-nothing Party”);
id., at 2011 (statement of Delegate Toole) (recognizing the provision as a
Blaine Amendment); id., at 2013 (statement of Chairman Graybill)
(same); id., at 2027 (statement of Delegate Campbell) (same); id., at 2030
(statement of Delegate Champoux) (same).
19 See Nat. Center for Educational Statistics, Statistics of Nonpublic
Elementary and Secondary Schools 1970–71, pp. 32–33 (1973) (Table 1).
12 ESPINOZA v. MONTANA DEPT. OF REVENUE
ALITO, J., concurring
2010, 2027. That amendment was rejected.
Thus, the no-aid provision’s terms keep it “[t]ethered” to
its original “bias,” and it is not clear at all that the State
“actually confront[ed]” the provision’s “tawdry past in reen-
acting it.” Ramos, 590 U. S., at ___ (SOTOMAYOR, J., con-
curring in part) (slip op., at 4). After all, whereas the no-
aid provision had originally been foisted on Montana, the
State readopted it voluntarily—“sectarian” references in-
cluded. Whether or not the State did so for any reason that
could be called legitimate, the convention delegates recog-
nized that the provision would “continue to mean and do
whatever it does now,” Convention Tr. 2014 (statement of
Delegate Loendorf ), and the discrimination in this case
shows that the provision continues to have its originally in-
tended effect. And even if Montana had done more to ad-
dress its no-aid provision’s past, that would of course do
nothing to resolve the bias inherent in the Blaine Amend-
ments among the 17 States, by respondents’ count, that
have not readopted or amended them since around the turn
of the 20th century.20
Today’s public schools are quite different from those en-
visioned by Horace Mann, but many parents of many differ-
ent faiths still believe that their local schools inculcate a
worldview that is antithetical to what they teach at home.
Many have turned to religious schools, at considerable ex-
pense, or have undertaken the burden of homeschooling.
The tax-credit program adopted by the Montana Legisla-
——————
20 Ala. Const., Art. XIV, §263 (1901); Ariz. Const., Art. II, §12, Art. IX,
§10 (1912); Colo. Const., Art. V, §34, Art. IX, §7 (1876); Del. Const.,
Art. X, §3 (1897); Ind. Const., Art. I, §6 (1851); Ky. Const. §189 (1891);
Miss. Const., Art. 8, §208 (1890); Nev. Const., Art. XI, §10 (1880); N. H.
Const., Pt. II, Art. 83 (1877); N. M. Const., Art. XII, §3 (1911); N. D.
Const., Art. VIII, §152 (1889); Ohio Const., Art. VI, §2 (1851); Okla.
Const., Art. II, §5 (1907); Ore. Const., Art. I, §5 (1857); S. D. Const.,
Art. VIII, §16 (1889); Wis. Const., Art. I, §18, Art. X, §3 (1848); Wyo.
Const., Art. I, §19, Art. VII, §8 (1889).
Cite as: 591 U. S. ____ (2020) 13
ALITO, J., concurring
ture but overturned by the Montana Supreme Court pro-
vided necessary aid for parents who pay taxes to support
the public schools but who disagree with the teaching there.
The program helped parents of modest means do what more
affluent parents can do: send their children to a school of
their choice. The argument that the decision below treats
everyone the same is reminiscent of Anatole France’s sar-
donic remark that “ ‘[t]he law, in its majestic equality, for-
bids the rich as well as the poor to sleep under bridges, to
beg in the streets, and to steal bread.’ ” J. Cournos, A Mod-
ern Plutarch 35 (1928).
Cite as: 591 U. S. ____ (2020) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
JUSTICE GORSUCH, concurring.
The people of Montana, acting through their legislature,
adopted a school choice program. It provided a modest tax
credit to individuals and businesses who donated to non-
profit scholarship organizations. As the program began to
take root, Montana had just one scholarship organization.
It granted scholarships to families who were struggling fi-
nancially or had children with disabilities. Recipients were
free to use the scholarships at the schools of their choice.
Some families chose secular schools, others religious ones.
Kendra Espinoza, the lead petitioner in this case, is a sin-
gle mother who works three jobs. She planned to use schol-
arships to help keep her daughters at an accredited reli-
gious school. That is, until the Montana Supreme Court
struck down the tax credit program. Those seeking a tax
credit were free to choose whether to direct their donations
to the independent scholarship organization; the organiza-
tion was then free to choose scholarship recipients; and, af-
ter that, parents were free to choose where to use those
scholarships. But, the Montana Supreme Court held, this
arrangement impermissibly allowed state funds to find
their way to religious schools, in violation of a state consti-
tutional provision. By way of remedy, the court ordered an
end to the tax credit program, effectively killing Montana’s
school choice experiment: Without tax credits, donations
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
GORSUCH, J., concurring
dry up, and so do the scholarships enabling school choice.
Today, the Court explains how the Montana Constitu-
tion, as interpreted by the State Supreme Court, violates
the First Amendment by discriminating against parents
and schools based on their religious status or identity. The
Court explains, too, why the State Supreme Court’s deci-
sion to eliminate the tax credit program fails to mask the
discrimination. But for the Montana Constitution’s imper-
missible discrimination, after all, the legislature’s tax
credit and scholarship program would be still operating for
the benefit of Ms. Espinoza and everyone else. I agree with
all the Court says on these scores and join its opinion in full.
I write separately only to address an additional point.
The Court characterizes the Montana Constitution as
discriminating against parents and schools based on “reli-
gious status and not religious use.” Ante, at 10. No doubt,
the Court proceeds as it does to underscore how the outcome
of this case follows from Trinity Lutheran Church of Colum-
bia, Inc. v. Comer, 582 U. S. ___ (2017), where the Court
struck down a similar public benefits restriction that, it
held, discriminated on the basis of religious status. No
doubt, too, discrimination on the basis of religious status
raises grave constitutional questions for the reasons the
Court describes. But I was not sure about characterizing
the State’s discrimination in Trinity Lutheran as focused
only on religious status, and I am even less sure about char-
acterizing the State’s discrimination here that way. See id.,
at ___–___ (slip op., at 1–2) (GORSUCH, J., concurring in
part).
In the first place, discussion of religious activity, uses,
and conduct—not just status—pervades this record. The
Montana Constitution forbids the use of public funds “for
any sectarian purpose,” including to “aid” sectarian schools.
Art. X, §6(1). Tracking this directive, the State Supreme
Court reasoned that the legislature’s tax credit program
Cite as: 591 U. S. ____ (2020) 3
GORSUCH, J., concurring
could be used to “subsidiz[e] the sectarian school’s educa-
tional program” and thereby “strengthen . . . religious edu-
cation.” 393 Mont. 446, 466, 467, 435 P.3d 603, 613, 614
(2018). Meanwhile, Ms. Espinoza admits that she would
like to use scholarship funds to enable her daughters to be
taught in school the “same Christian values” they are
taught at home. App. to Pet. for Cert. 152. Finally, in its
briefing before this Court, Montana has represented that
its Constitution focuses on preventing the use of tax credits
to subsidize religious activity.
Not only is the record replete with discussion of activities,
uses, and conduct, any jurisprudence grounded on a status-
use distinction seems destined to yield more questions than
answers. Does Montana seek to prevent religious parents
and schools from participating in a public benefits program
(status)? Or does the State aim to bar public benefits from
being employed to support religious education (use)?
Maybe it’s possible to describe what happened here as sta-
tus-based discrimination. But it seems equally, and maybe
more, natural to say that the State’s discrimination focused
on what religious parents and schools do—teach religion.
Nor are the line-drawing challenges here unique; they have
arisen before and will again. See Trinity Lutheran, 582
U. S., at ___–___ (slip op., at 1–2) (opinion of GORSUCH, J.).
Most importantly, though, it is not as if the First Amend-
ment cares. The Constitution forbids laws that prohibit the
free exercise of religion. That guarantee protects not just
the right to be a religious person, holding beliefs inwardly
and secretly; it also protects the right to act on those beliefs
outwardly and publicly. At the time of the First Amend-
ment’s adoption, the word “exercise” meant (much as it
means today) some “[l]abour of the body,” a “[u]se,” as in the
“actual application of any thing,” or a “[p]ractice,” as in
some “outward performance.” 1 S. Johnson, A Dictionary of
the English Language (4th ed. 1773); see also ibid. (5th ed.
1784). By speaking of a right to “free exercise,” rather than
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
GORSUCH, J., concurring
a right “of conscience,” an alternative the framers consid-
ered and rejected, our Constitution “extended the broader
freedom of action to all believers.” McConnell, The Origins
and Historical Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409, 1490 (1989). So whether the Mon-
tana Constitution is better described as discriminating
against religious status or use makes no difference: It is a
violation of the right to free exercise either way, unless the
State can show its law serves some compelling and nar-
rowly tailored governmental interest, conditions absent
here for reasons the Court thoroughly explains.
Our cases have long recognized the importance of protect-
ing religious actions, not just religious status. In its very
first decision applying the Free Exercise Clause to the
States, the Court explained that the First Amendment pro-
tects the “freedom to act” as well as the “freedom to believe.”
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The
Court then reversed a criminal conviction against Newton
Cantwell and his sons, Jehovah’s Witnesses who were pros-
ecuted not because of who they were but because of what
they did—proselytize door-to-door without a license. See
id., at 300–301, 307, 311. In fact, this Court has already
recognized that parents’ decisions about the education of
their children—the very conduct at issue here—can consti-
tute protected religious activity. In Wisconsin v. Yoder, 406
U.S. 205 (1972), the Court held that Amish parents could
not be compelled to send their children to a public high
school if doing so would conflict with the dictates of their
faith. See id., at 214–215, 220, 234–235.
Even cases that seemingly focus on religious status do so
with equal respect for religious actions. In McDaniel v.
Paty, 435 U.S. 618 (1978) (plurality opinion), for example,
a State had barred the clergy from serving in the state leg-
islature or at the state constitutional convention. See id.,
at 620–622. Some have described the discrimination there
as focused on religious “ ‘ status.’ ” Trinity Lutheran, 582
Cite as: 591 U. S. ____ (2020) 5
GORSUCH, J., concurring
U. S., at ___ (slip op., at 7) (quoting McDaniel, 435 U.S., at
627) (emphasis deleted). But no one can question that con-
duct lurked just beneath the surface. After all, the State
identified clergy based on their “conduct and activity,” and
the plurality opinion concluded that the State’s prohibition
was based on “status, acts, and conduct.” 435 U.S., at 627;
see also id., at 630–633 (Brennan, J., concurring in judg-
ment); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520 (1993).
Consistently, too, we have recognized the First Amend-
ment’s protection for religious conduct in public benefits
cases. When the government chooses to offer scholarships,
unemployment benefits, or other affirmative assistance to
its citizens, those benefits necessarily affect the “baseline
against which burdens on religion are measured.” Locke v.
Davey, 540 U.S. 712, 726 (2004) (Scalia, J., dissenting) (cit-
ing Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16 (1947)).
So, as we have long explained, the government “penalize[s]
religious activity” whenever it denies to religious persons
an “equal share of the rights, benefits, and privileges en-
joyed by other citizens.” Lyng v. Northwest Indian Ceme-
tery Protective Assn., 485 U.S. 439, 449 (1988). What ben-
efits the government decides to give, whether meager or
munificent, it must give without discrimination against re-
ligious conduct.
Our cases illustrate the point. In Sherbert v. Verner, 374
U.S. 398 (1963), for example, a State denied unemploy-
ment benefits to Adell Sherbert not because she was a Sev-
enth Day Adventist but because she had put her faith into
practice by refusing to labor on the day she believed God
had set aside for rest. See id., at 399–401. Recognizing her
right to exercise her religion freely, the Court held that Ms.
Sherbert was entitled to benefits. See id., at 410. Similarly,
in Thomas v. Review Bd. of Ind. Employment Security Div.,
450 U.S. 707 (1981), the Court held that Eddie Thomas had
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
GORSUCH, J., concurring
the right to resign from his job and still collect an unem-
ployment check after he decided he could not assemble mil-
itary tank turrets consistent with the teachings of his faith.
See id., at 709–712, 720. In terms that speak equally to our
case, the Court explained that the government tests the
Free Exercise Clause whenever it “conditions receipt of an
important benefit upon conduct proscribed by a religious
faith, or . . . denies such a benefit because of conduct man-
dated by religious belief, thereby putting substantial pres-
sure on an adherent to modify his behavior and to violate
his beliefs.” Id., at 717–718.
The First Amendment protects religious uses and actions
for good reason. What point is it to tell a person that he is
free to be Muslim but he may be subject to discrimination
for doing what his religion commands, attending Friday
prayers, living his daily life in harmony with the teaching
of his faith, and educating his children in its ways? What
does it mean to tell an Orthodox Jew that she may have her
religion but may be targeted for observing her religious cal-
endar? Often, governments lack effective ways to control
what lies in a person’s heart or mind. But they can bring to
bear enormous power over what people say and do. The
right to be religious without the right to do religious things
would hardly amount to a right at all.
If the government could intrude so much in matters of
faith, too, winners and losers would soon emerge. Those
apathetic about religion or passive in its practice would suf-
fer little in a world where only inward belief or status is
protected. But what about those with a deep faith that re-
quires them to do things passing legislative majorities
might find unseemly or uncouth—like knocking on doors to
spread their beliefs, refusing to build tank turrets during
wartime, or teaching their children at home? “[T]hose who
take their religion seriously, who think that their religion
should affect the whole of their lives,” and those whose re-
ligious beliefs and practices are least popular, would face
Cite as: 591 U. S. ____ (2020) 7
GORSUCH, J., concurring
the greatest disabilities. Mitchell v. Helms, 530 U.S. 793,
827–828 (2000) (plurality opinion). A right meant to protect
minorities instead could become a cudgel to ensure con-
formity.
It doesn’t take a long or searching look through history or
around the world to see how this can go. In the century
before our Nation’s founding, Oliver Cromwell promised to
Catholics in Ireland: “ ‘As to freedom of conscience, I med-
dle with no man’s conscience; but if you mean by that, lib-
erty to celebrate the Mass, I would have you understand
that in no place where the power of the Parliament of Eng-
land prevails shall that be permitted.’ ” McDaniel, 435
U.S., at 631, n. 2 (opinion of Brennan, J.) (quoting S. Hook,
Paradoxes of Freedom 23 (1962)); see also 1 T. Carlyle, Oli-
ver Cromwell’s Letters and Speeches 395 (1845) (recording
Cromwell’s October 19, 1649, letter to the Governor of
Ross). Even today, in fiefdoms small and large, people of
faith are made to choose between receiving the protection
of the State and living lives true to their religious convic-
tions.
Of course, in public benefits cases like the one before us
the stakes are not so dramatic. Individuals are forced only
to choose between forgoing state aid or pursuing some as-
pect of their faith. The government does not put a gun to
the head, only a thumb on the scale. But, as so many of our
cases explain, the Free Exercise Clause doesn’t easily toler-
ate either; any discrimination against religious exercise
must meet the demands of strict scrutiny. In this way, the
Clause seeks to ensure that religion remains “a matter of
voluntary choice by individuals and their associations,
[where] each sect ‘ flourish[es] according to the zeal of its
adherents and the appeal of its dogma,’ ” influenced by nei-
ther where the government points its gun nor where it
places its thumb. McDaniel, 435 U.S., at 640 (opinion of
Brennan J.) (quoting Zorach v. Clauson, 343 U.S. 306, 313
(1952)).
8 ESPINOZA v. MONTANA DEPT. OF REVENUE
GORSUCH, J., concurring
Montana’s Supreme Court disregarded these founda-
tional principles. Effectively, the court told the state legis-
lature and parents of Montana like Ms. Espinoza: You can
have school choice, but if anyone dares to choose to send a
child to an accredited religious school, the program will be
shuttered. That condition on a public benefit discriminates
against the free exercise of religion. Calling it discrimina-
tion on the basis of religious status or religious activity
makes no difference: It is unconstitutional all the same.
Cite as: 591 U. S. ____ (2020) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
JUSTICE GINSBURG, with whom JUSTICE KAGAN joins,
dissenting.
The Montana Legislature enacted a scholarship program
to fund tuition for students attending private secondary
schools. See Mont. Code Ann. §15–30–3111 (2019). In the
decision below, the Montana Supreme Court struck down
that program in its entirety. The program, the state court
ruled, conflicted with the State Constitution’s no-aid provi-
sion, which forbids government appropriations to religious
schools. Mont. Const., Art. X, §6(1). Parents who sought to
use the program’s scholarships to fund their children’s reli-
gious education challenged the state court’s ruling. They
argue in this Court that the Montana court’s application of
the no-aid provision violated the Free Exercise Clause of
the Federal Constitution. Importantly, the parents, peti-
tioners here, disclaim any challenge to the no-aid provision
on its face. They instead argue—and this Court’s majority
accepts—that the provision is unconstitutional as applied
because the First Amendment prohibits discrimination in
tuition-benefit programs based on a school’s religious sta-
tus. Because the state court’s decision does not so discrim-
inate, I would reject petitioners’ free exercise claim.
The First Amendment prohibits the government from
“mak[ing a] law . . . prohibiting the free exercise” of religion.
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
GINSBURG, J., dissenting
U. S. Const., Amdt. 1. This Court’s decisions have recog-
nized that a burden on religious exercise may occur both
when a State proscribes religiously motivated activity and
when a law pressures an adherent to abandon her religious
faith or practice. Sherbert v. Verner, 374 U.S. 398, 406
(1963); Hobbie v. Unemployment Appeals Comm’n of Fla.,
480 U.S. 136, 140–141 (1987). The Free Exercise Clause
thus protects against “indirect coercion or penalties on the
free exercise of religion.” Lyng v. Northwest Indian Ceme-
tery Protective Assn., 485 U.S. 439, 450 (1988). Invoking
that principle in Trinity Lutheran Church of Columbia, Inc.
v. Comer, 582 U. S. ___ (2017), the Court observed that dis-
qualifying an entity from a public benefit “solely because of
[the entity’s] religious character” can impose “a penalty on
the free exercise of religion.” Id., at ___–___ (slip op., at 9–
10). The Court then concluded that a Missouri law making
churches ineligible for a government playground-refurbish-
ing grant impermissibly burdened the church’s religious ex-
ercise by “put[ting it] to the choice between being a church
and receiving a government benefit.” Id., at ___ (slip op., at
13).
Petitioners argue that the Montana Supreme Court’s de-
cision fails when measured against Trinity Lutheran. I do
not see how. Past decisions in this area have entailed dif-
ferential treatment occasioning a burden on a plaintiff ’s re-
ligious exercise. Lyng, 485 U.S., at 450–451; Trinity Lu-
theran, 582 U. S., at ___ (slip op., at 11). This case is
missing that essential component. Recall that the Montana
court remedied the state constitutional violation by striking
the scholarship program in its entirety. Under that decree,
secular and sectarian schools alike are ineligible for bene-
fits, so the decision cannot be said to entail differential
treatment based on petitioners’ religion. Put somewhat dif-
ferently, petitioners argue that the Free Exercise Clause re-
quires a State to treat institutions and people neutrally
when doling out a benefit—and neutrally is how Montana
Cite as: 591 U. S. ____ (2020) 3
GINSBURG, J., dissenting
treats them in the wake of the state court’s decision.
Accordingly, the Montana Supreme Court’s decision does
not place a burden on petitioners’ religious exercise. Peti-
tioners may still send their children to a religious school.
And the Montana Supreme Court’s decision does not pres-
sure them to do otherwise. Unlike the law in Trinity Lu-
theran, the decision below puts petitioners to no “choice”:
Neither giving up their faith, nor declining to send their
children to sectarian schools, would affect their entitlement
to scholarship funding. 582 U. S., at ___ (slip op., at 10).
There simply are no scholarship funds to be had.
True, petitioners expected to be eligible for scholarships
under the legislature’s program, and to use those scholar-
ships at a religious school. And true, the Montana court’s
decision disappointed those expectations along with those
of parents who send their children to secular private
schools. But, as JUSTICE SOTOMAYOR observes, see post, at
3 (dissenting opinion), this Court has consistently refused
to treat neutral government action as unconstitutional
solely because it fails to benefit religious exercise. See
Sherbert, 374 U.S., at 412 (Douglas, J., concurring) (“[T]he
Free Exercise Clause is written in terms of what the gov-
ernment cannot do to the individual, not in terms of what
the individual can exact from the government.”).
These considerations should be fatal to petitioners’ free
exercise claim, yet the Court does not confront them. In-
stead, the Court decides a question that, in my view, this
case does not present: “[W]hether excluding religious
schools and affected families from [the scholarship] pro-
gram was consistent with the Federal Constitution.” Ante,
at 7 (majority opinion). The Court goes on to hold that the
Montana Supreme Court’s application of the no-aid provi-
sion violates the Free Exercise Clause because it “ ‘condi-
tion[s] the availability of benefits upon a recipient’s willing-
ness to surrender [its] religiously impelled status.’ ” Ante,
at 11 (quoting Trinity Lutheran, 582 U. S., at ___–___ (slip
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
GINSBURG, J., dissenting
op., at 9–10); alterations in original). As I see it, the deci-
sion below—which maintained neutrality between sec-
tarian and nonsectarian private schools—did no such thing.
Finding the “beginning” of the Montana Supreme Court’s
decision erroneous, this Court regards the state court’s ul-
timate judgment as irrelevant. Ante, at 20–22. In the
Court’s recounting, the Montana court first held that reli-
gious schools must be excluded from the scholarship pro-
gram—necessarily determining that the Free Exercise
Clause permitted that result—and only subsequently
struck the entire program as a way of carrying out its hold-
ing. See ante, at 21 (“When the [Montana Supreme] Court
was called upon to apply a state law no-aid provision to ex-
clude religious schools from the program, it was obligated
by the Federal Constitution to reject the invitation.”). But
the initial step described by this Court is imaginary. The
Montana court determined that the scholarship program vi-
olated the no-aid provision because it resulted in aid to re-
ligious schools. Declining to rewrite the statute to exclude
those schools, the state court struck the program in full.
393 Mont. 446, 463–468, 435 P.3d 603, 612–614 (2018). In
doing so, the court never made religious schools ineligible
for an otherwise available benefit, and it never decided that
the Free Exercise Clause would allow that outcome.1
Thus, contrary to this Court’s assertion, see ante, at 21,
the no-aid provision did not require the Montana Supreme
——————
1 In its opinion, Montana’s highest court stated without explanation
that this case is not one in which application of the no-aid provision vio-
lates the Free Exercise Clause. 393 Mont., at 468, 435 P.3d, at 614.
When the court made that statement, it had already invalidated the en-
tire scholarship program. Ibid. Accordingly, the court’s statement can-
not be understood to have approved of excluding religious schools from
an otherwise available scholarship. Instead, the statement is most fairly
read to convey that the Free Exercise Clause allows a State to decline to
fund any private schools, an outcome that avoids state aid to religious
schools.
Cite as: 591 U. S. ____ (2020) 5
GINSBURG, J., dissenting
Court to “exclude” religious schools from the scholarship
program. The provision mandated only that the state treas-
ury not be used to fund religious schooling. As this case
demonstrates, that mandate does not necessarily require
differential treatment. The no-aid provision can be imple-
mented in two ways. A State may distinguish within a ben-
efit program between secular and sectarian schools, or it
may decline to fund all private schools. The Court agrees
that the First Amendment permits the latter course. See
ante, at 20. Because that is the path the Montana Supreme
Court took in this case, there was no reason for this Court
to address the alternative.
By urging that it is impossible to apply the no-aid provi-
sion in harmony with the Free Exercise Clause, the Court
seems to treat the no-aid provision itself as unconstitu-
tional. See ante, at 21. Petitioners, however, disavowed a
facial First Amendment challenge, and the state courts
were never asked to address the constitutionality of the no-
aid provision divorced from its application to a specific gov-
ernment benefit. See, e.g., Reply Brief 8, 20, 21–22. This
Court therefore had no call to reach that issue. See Adams
v. Robertson, 520 U.S. 83, 90 (1997) (per curiam) (“ ‘[I]t
would be unseemly in our dual system of government’ to
disturb the finality of state judgments on a federal ground
that the state court did not have occasion to consider.”
(quoting Webb v. Webb, 451 U.S. 493, 500 (1981))). The
only question properly raised is whether application of the
no-aid provision to bar all state-sponsored private-school
funding violates the Free Exercise Clause. For the reasons
stated, supra, at 2–3, it does not.
Nearing the end of its opinion, the Court writes: “A State
need not subsidize private education. But once a State de-
cides to do so, it cannot disqualify some private schools
solely because they are religious.” Ante, at 20. Because
Montana’s Supreme Court did not make such a decision—
its judgment put all private school parents in the same
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
GINSBURG, J., dissenting
boat—this Court had no occasion to address the matter.2
On that sole ground, and reaching no other issue, I dissent
from the Court’s judgment.
——————
2 The Montana Supreme Court’s decision leaves parents where they
would be had the State never enacted a scholarship program. In that
event, no one would argue that Montana was obliged to provide such a
program solely for parents who send their children to religious schools.
But cf. ante, at 13 (ALITO, J., concurring) (inapt reference to Anatole
France’s remark).
Cite as: 591 U. S. ____ (2020) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
JUSTICE BREYER, with whom JUSTICE KAGAN joins as to
Part I, dissenting.
The First Amendment’s Free Exercise Clause guarantees
the right to practice one’s religion. At the same time, its
Establishment Clause forbids government support for reli-
gion. Taken together, the Religion Clauses have helped our
Nation avoid religiously based discord while securing lib-
erty for those of all faiths.
This Court has long recognized that an overly rigid appli-
cation of the Clauses could bring their mandates into con-
flict and defeat their basic purpose. See, e.g., Walz v. Tax
Comm’n of City of New York, 397 U.S. 664, 668–669 (1970).
And this potential conflict is nowhere more apparent than
in cases involving state aid that serves religious purposes
or institutions. In such cases, the Court has said, there
must be constitutional room, or “ ‘play in the joints,’ ” be-
tween “what the Establishment Clause permits and the
Free Exercise Clause compels.” Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (slip op.,
at 6) (quoting Locke v. Davey, 540 U.S. 712, 718 (2004)).
Whether a particular state program falls within that space
depends upon the nature of the aid at issue, considered in
light of the Clauses’ objectives.
The majority barely acknowledges the play-in-the-joints
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
doctrine here. It holds that the Free Exercise Clause for-
bids a State to draw any distinction between secular and
religious uses of government aid to private schools that is
not required by the Establishment Clause. The majority’s
approach and its conclusion in this case, I fear, risk the kind
of entanglement and conflict that the Religion Clauses are
intended to prevent. I consequently dissent.
I
In 2015, Montana’s Legislature enacted a statute giving
a $150 tax credit to any person who contributes at least that
amount to an organization that provides scholarships for
students who attend non-public schools. See Mont. Code
Ann. §15–30–3111 (2019). The overwhelming majority of
these schools are religious. (In 2018, 94% of the scholar-
ships awarded helped to pay religious-school tuition. 393
Mont. 446, 466, 478–479, and n. 6, 435 P.3d 603, 613, 621,
and n. 6; App to Pet. for Cert. 123, 125.) The Montana Su-
preme Court held that this program violated a state consti-
tutional provision that forbids the legislature to make “any
direct or indirect appropriation or payment” for “any sec-
tarian purpose or to aid any church, school, academy . . .
controlled in whole or in part by any church, sect, or denom-
ination.” Mont. Const., Art. X, §6.
Petitioners are the parents of students who attend one of
Montana’s Christian private schools. They believe that the
tenets of their faith require them to send their children to a
religious school. And they claim that, by preventing them
from using state-supported scholarships at those schools,
the Montana Supreme Court’s interpretation of Montana’s
Constitution violates their First Amendment right to free
exercise. I shall assume, for purposes of this opinion, that
petitioners’ free exercise claim survived the Montana Su-
preme Court’s wholesale invalidation of the tax credit pro-
gram. Cf. ante, at 2 (GINSBURG, J., dissenting); post, at 2–
3 (SOTOMAYOR, J., dissenting).
Cite as: 591 U. S. ____ (2020) 3
BREYER, J., dissenting
A
We all recognize that the First Amendment prohibits dis-
crimination against religion. At the same time, our history
and federal constitutional precedent reflect a deep concern
that state funding for religious teaching, by stirring fears of
preference or in other ways, might fuel religious discord and
division and thereby threaten religious freedom itself. See,
e.g., Committee for Public Ed. & Religious Liberty v.
Nyquist, 413 U.S. 756, 794–796 (1973). The Court has con-
sequently made it clear that the Constitution commits the
government to a “position of neutrality” in respect to reli-
gion. School Dist. of Abington Township v. Schempp, 374
U.S. 203, 226 (1963).
The inherent tension between the Establishment and
Free Exercise Clauses means, however, that the “course of
constitutional neutrality in this area cannot be an abso-
lutely straight line.” Walz, 397 U.S., at 669. Indeed, “ri-
gidity could well defeat the basic purpose of these provi-
sions, which is to insure that no religion be sponsored or
favored, none commanded, and none inhibited.” Ibid.
That, in significant part, is why the Court has held that
“there is room for play in the joints” between the Clauses’
express prohibitions that is “productive of a benevolent neu-
trality,” allowing “religious exercise to exist without spon-
sorship and without interference.” Ibid. It has held that
there “are some state actions permitted by the Establish-
ment Clause but not required by the Free Exercise Clause.”
Locke, 540 U.S., at 719; see Cutter v. Wilkinson, 544 U.S.
709, 719 (2005). And that “play in the joints” should, in my
view, play a determinative role here.
It may be that, under our precedents, the Establishment
Clause does not forbid Montana to subsidize the education
of petitioners’ children. But, the question here is whether
the Free Exercise Clause requires it to do so. The majority
believes that the answer to that question is “yes.” It writes
that “once a State decides” to support nonpublic education,
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
“it cannot disqualify some private schools solely because
they are religious.” Ante, at 20. I shall explain why I disa-
gree.
B
As the majority acknowledges, two cases are particularly
relevant: Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U. S. ___, and Locke v. Davey, 540 U.S. 712. In
Trinity Lutheran, we considered whether Missouri could ex-
clude a church-owned preschool from applying for a grant
to renovate its playground. The Court assumed that the
Establishment Clause permitted the State to make grants
of this kind to church-affiliated schools. See 582 U. S., at
___ (slip op., at 6). But, the Court added, this did not “an-
swer the question” because there is “ ‘play in the joints’ be-
tween what the Establishment Clause permits and the Free
Exercise Clause compels.” Ibid. The Court therefore went
on to consider the burdens that Missouri’s law imposed
upon the church’s right to free exercise.
By excluding schools with ties to churches, the Court
wrote, the State’s law put the church “to a choice: It may
participate in an otherwise available benefit program or re-
main a religious institution.” Id., at ___ (slip op., at 10).
That kind of “ ‘indirect coercion,’ ” the Court explained, “im-
poses a penalty on the free exercise of religion that triggers
the most exacting scrutiny.” Id., at ___, ___ (slip op., at 10,
11). Finding that a State’s “policy preference for skating as
far as possible from religious establishment concerns” could
not satisfy that standard, the Court held that the Free Ex-
ercise Clause required Missouri to include church-affiliated
schools as candidates for playground renovation grants.
Id., at ___ (slip op., at 14).
We confronted a different kind of aid program, and came
to a different conclusion, in Locke. There, we reviewed a
Washington law that offered taxpayer-funded scholarships
to college students on the express condition that they not
Cite as: 591 U. S. ____ (2020) 5
BREYER, J., dissenting
pursue degrees that were “ ‘devotional in nature or designed
to induce religious belief.’ ” 540 U.S., at 716; see id., at 719,
n. 2 (quoting Wash. Const., Art. II, §11). Again, the Court
assumed that the Establishment Clause permitted the
State to support students seeking such degrees. 540 U.S.,
at 719. But the Court concluded that the Free Exercise
Clause did not require it to do so.
The Court observed that the State’s decision not to fund
devotional degrees did not penalize religious exercise or re-
quire anyone to choose between their faith and a “govern-
ment benefit.” Id., at 721. Rather, the State had “merely
chosen not to fund a distinct category of instruction” that
was “essentially religious.” Ibid. Although Washington’s
Constitution drew “a more stringent line than that drawn
by the United States Constitution,” the Court found that
the State’s position was consistent with the widely shared
view, dating to the founding of the Republic, that taxpayer-
supported religious indoctrination poses a threat to individ-
ual liberty. Id., at 722. Given this “historic and substantial
state interest,” the Court concluded, it would be inappropri-
ate to subject Washington’s law to a “presumption of uncon-
stitutionality.” Id., at 725. And, without such a presump-
tion, the claim that the exclusion of devotional studies
violated the Free Exercise Clause “must fail,” for “[i]f any
room exists between the two Religion Clauses, it must be
here.” Ibid.; see id., at 721, n. 3.
C
The majority finds that the school-playground case, Trin-
ity Lutheran, and not the religious-studies case, Locke, con-
trols here. I disagree. In my view, the program at issue
here is strikingly similar to the program we upheld in Locke
and importantly different from the program we found un-
constitutional in Trinity Lutheran. Like the State of Wash-
ington in Locke, Montana has chosen not to fund (at a dis-
tance) “an essentially religious endeavor”—an education
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
designed to “ ‘induce religious faith.’ ” Locke, 540 U.S., at
716, 721. That kind of program simply cannot be likened to
Missouri’s decision to exclude a church school from apply-
ing for a grant to resurface its playground.
The Court in Locke recognized that the study of devo-
tional theology can be “akin to a religious calling as well as
an academic pursuit.” Id., at 721. Indeed, “the shaping,
through primary education, of the next generation’s minds
and spirits” may be as critical as training for the ministry,
which itself, after all, is but one of the activities necessary
to help assure a religion’s survival. Zelman v. Simmons-
Harris, 536 U.S. 639, 725 (2002) (BREYER, J., dissenting).
That is why many faith leaders emphasize the central role
of schools in their religious missions. See, e.g., Southern
Baptist Convention, Resolution on the Importance of
Christ-Centered Education (2014) (underscoring the power
of Christian schools to “win students to salvation through
evangelism, make disciples, and foster spiritual develop-
ment”); The Holy See, John Paul II, Catechesi Tradendae
¶69 (Oct. 16, 1979) (explaining that “the underlying reason
for” the Catholic school “is precisely the quality of the reli-
gious instruction integrated into the education of the pu-
pils”). It is why at least some teachers at religious schools
see their work as a form of ministry. See, e.g., Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC,
565 U.S. 171, 192 (2012). And petitioners have testified
that it is a “major reason” why they chose religious schools
for their children. App. to Pet. for Cert. 152 (the school
teaches “the same Christian values that I teach at home”).
Nothing in the Constitution discourages this type of in-
struction. To the contrary, the Free Exercise Clause draws
upon a history that places great value upon the freedom of
parents to teach their children the tenets of their faith. Cf.
Wisconsin v. Yoder, 406 U.S. 205, 213–214 (1972). The
leading figures of America’s Enlightenment followed in the
footsteps of those who, after the English civil wars, came to
Cite as: 591 U. S. ____ (2020) 7
BREYER, J., dissenting
believe “with a passionate conviction that they were enti-
tled to worship God in their own way and to teach their chil-
dren and to form their characters in the way that seemed
to them calculated to impress the stamp of the God-fearing
man.” C. Radcliffe, The Law & Its Compass 71 (1960). But
the bitter lesson of religious conflict also inspired the Es-
tablishment Clause and the state-law bans on compelled
support the Court cited in Locke. Cf., e.g., J. Madison, Me-
morial and Remonstrance Against Religious Assessments,
reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. 1,
69 (1947) (appendix to dissent of Rutledge, J.) (recalling the
“[t]orrents of blood” shed in efforts to establish state reli-
gion).
What, then, is the difference between Locke and the pre-
sent case? And what is it that leads the majority to con-
clude that funding the study of religion is more like paying
to fix up a playground (Trinity Lutheran) than paying for a
degree in theology (Locke)? The majority’s principal argu-
ment appears to be that, as in Trinity Lutheran, Montana
has excluded religious schools from its program “solely be-
cause of the religious character of the schools.” Ante, at 9.
The majority seeks to contrast this status-based discrimi-
nation with the program at issue in Locke, which it says
denied scholarships to divinity students based on the reli-
gious use to which they put the funds—i.e., training for the
ministry, as opposed to secular professions. See ante, at 11
(citing Trinity Lutheran, 582 U. S., at ___–___ (slip op., at
9–10)).
It is true that Montana’s no-aid provision broadly bars
state aid to schools based on their religious affiliation. But
this case does not involve a claim of status-based discrimi-
nation. The schools do not apply or compete for scholar-
ships, they are not parties to this litigation, and no one here
purports to represent their interests. We are instead faced
with a suit by parents who assert that their free exercise
rights are violated by the application of the no-aid provision
8 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
to prevent them from using taxpayer-supported scholar-
ships to attend the schools of their choosing. In other
words, the problem, as in Locke, is what petitioners
“ ‘propos[e] to do—use the funds to’ ” obtain a religious edu-
cation. Ante, 13 (quoting Trinity Lutheran, 582 U. S., at ___
(slip op., at 12)).
Even if the schools’ status were relevant, I do not see
what bearing the majority’s distinction could have here.
There is no dispute that religious schools seek generally to
inspire religious faith and values in their students. How
else could petitioners claim that barring them from using
state aid to attend these schools violates their free exercise
rights? Thus, the question in this case—unlike in Trinity
Lutheran—boils down to what the schools would do with
state support. And the upshot is that here, as in Locke, we
confront a State’s decision not to fund the inculcation of re-
ligious truths.
The majority next contends that there is no “ ‘historic and
substantial’ tradition against aiding” religious schools
“comparable to the tradition against state-supported clergy
invoked by Locke.” Ante, at 16. But the majority ignores
the reasons for the founding era bans that we relied upon
in Locke.
“Perhaps the most famous example,” Locke, 540 U.S., at
722, n. 6, is the 1786 defeat of a Virginia bill (often called
the Assessment Bill) that would have levied a tax in sup-
port of “learned teachers” of “the Christian Religion.” A Bill
Establishing a Provision for Teachers of the Christian Reli-
gion, reprinted in Everson, 330 U.S., at 72 (supplemental
appendix to dissent of Rutledge, J.). In his Memorial and
Remonstrance against that proposal, James Madison ar-
gued that compelling state sponsorship of religion in this
way was “a signal of persecution” that “degrades from the
equal rank of citizens all those whose opinions in religion
do not bend to those of the Legislative authority.” Id., at
68–69. Even among those who might benefit from such a
Cite as: 591 U. S. ____ (2020) 9
BREYER, J., dissenting
tax, Madison warned, the bill threatened to “destroy that
moderation and harmony which the forbearance of our laws
to intermeddle with Religion, has produced among its sev-
eral sects.” Id., at 69.
The opposition galvanized by Madison’s Remonstrance
not only scuttled the Assessment Bill; it spurred Virginia’s
Assembly to enact a very different law, the Bill for Religious
Liberty drafted by Thomas Jefferson. See Brant, Madison:
On the Separation of Church and State, 8 Wm. & Mary
Q. 3, 11 (1951); Drakeman, Religion and the Republic:
James Madison and the First Amendment, 25 J. Church &
St. 427, 436 (1983); Everson, 330 U.S., at 12.
Like the Remonstrance, Jefferson’s bill emphasized the
risk to religious liberty that state-supported religious indoc-
trination threatened. “[T]o compel a man to furnish contri-
butions of money for the propagation of opinions which he
disbelieves,” the preamble declared, “is sinful and tyranni-
cal.” A Bill for Establishing Religious Freedom (1779), in 2
The Papers of Thomas Jefferson 545 (J. Boyd ed. 1950). The
statute accordingly provided “that no man shall be com-
pelled to frequent or support any religious worship, place,
or ministry whatsoever.” Id., at 546. Similar proscriptions
were included in the early constitutions of many States.
See Locke, 540 U.S., at 723 (collecting examples).
I see no meaningful difference between the concerns that
Madison and Jefferson raised and the concerns inevitably
raised by taxpayer support for scholarships to religious
schools. In both instances state funds are sought for those
who would “instruc[t] such citizens, as from their circum-
stances and want of education, cannot otherwise attain
such knowledge” in the tenets of religious faith. A Bill Es-
tablishing a Provision for Teachers of the Christian Reli-
gion, reprinted in Everson, 330 U.S., at 72. In both cases,
that would compel taxpayers “to support the propagation of
opinions” on matters of religion with which they may disa-
gree, by teachers whom they have not chosen. A Bill for
10 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
Establishing Religious Freedom, supra, at 545. And, in
both cases, the allocation of state aid to such purposes
threatens to “destroy that moderation and harmony which
the forbearance of our laws to intermeddle with Religion,
has produced among its several sects.” Memorial and Re-
monstrance, reprinted in Everson, 330 U.S., at 69.
The majority argues that at least some early American
governments saw no contradiction between bans on com-
pelled support for clergy and taxpayer support for religious
schools or universities. See ante, at 14, n. 3. That some
States appear not to have read their prohibitions on com-
pelled support to bar this kind of sponsorship, however,
does not require us to blind ourselves to the obvious contra-
diction between the reasons for prohibiting compelled sup-
port and the effect of taxpayer funding for religious educa-
tion. Madison and Jefferson saw it clearly. They opposed
including theological professorships in their plans for the
public University of Virginia and the Commonwealth hesi-
tated even to grant charters to religiously affiliated schools.
See Buckley, After Disestablishment: Thomas Jefferson’s
Wall of Separation in Antebellum Virginia, 61 J. So. Hist.
445, 453 (1995); Brant, supra, at 19–20.
As for the majority’s examples, it suffices to say that the
record is not so simple. In Georgia, the Governor advocated
for school funding legislation in terms that mirrored the
language of Virginia’s Assessment Bill. See R. Gabel, Pub-
lic Funds for Church and Private Schools 241–242 (1937).
And the general levies the majority cites from Pennsylvania
and New Jersey were not adopted until after the founding.
See id., at 215–216; see C. Kaestle, Pillars of the Republic:
Common Schools and American Society, 1780–1860, pp.
166–167 (1983).
That is not to deny that the history of state support for
denominational schools is “ ‘complex.’ ” Ante, at 16. But
founding era attitudes toward compelled support of clergy
were no less complex. Many prominent members of the
Cite as: 591 U. S. ____ (2020) 11
BREYER, J., dissenting
founding generation, including George Washington, Patrick
Henry, and John Marshall, supported Virginia’s Assess-
ment Bill. See Dreisbach, George Mason’s Pursuit of Reli-
gious Liberty in Revolutionary Virginia, 108 Va. Mag. Hist.
& Biography 5, 31 (2000). Some who supported this kind of
government aid thought it posed no threat to freedom of
conscience; others denied that provisions for aid to religion
amounted to an “establishment” at all. See id., at 34–35; D.
Drakeman, Church, State, and Original Intent 224–225
(2010). Indeed, at least one historian has persuasively ar-
gued that it is next to impossible to attribute to the Found-
ers any uniform understanding as to what constitutes, in
the Constitution’s phrase, “an Establishment of religion.”
Id., at 216–229, 260–262.
This diversity of opinion made no difference in Locke and
it makes no difference here. For our purposes it is enough
to say that, among those who gave shape to the young Re-
public were people, including Madison and Jefferson, who
perceived a grave threat to individual liberty and commu-
nal harmony in tax support for the teaching of religious
truths. These “historic and substantial” concerns have con-
sistently guided the Court’s application of the Religion
Clauses since. Locke, 540 U.S., at 725; see, e.g., Nyquist,
413 U.S., at 794–798; Walz, 397 U.S., at 695 (Harlan, J.,
concurring); Schempp, 374 U.S., at 307 (Goldberg, J.,
joined by Harlan, J., concurring). The Court’s special atten-
tion to these views should come as no surprise, for the risks
the Founders saw have only become more apparent over
time. In the years since the Civil War, the number of reli-
gions practiced in our country has grown to scores. And
that has made it more difficult to avoid suspicions of favor-
itism—or worse—when government becomes entangled
with religion.
Nor can I see how it could make a difference that the Es-
tablishment Clause might permit the State to subsidize re-
ligious education through a program like Montana’s. The
12 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
tax benefit here inures to donors, who choose to support a
particular scholarship organization. That organization, in
turn, awards scholarships to students for the qualifying
school of their choice. The majority points to cases in which
we have upheld programs where, as here, state funds make
their way to religious schools by means of private choices.
Ante, at 7 (citing Zelman, 536 U.S., at 649–653). As the
Court acknowledged in Trinity Lutheran, however, that
does not answer the question whether providing such aid is
required. 582 U. S., at ___ (slip op., at 6).
Neither does it address related concerns that I have pre-
viously described. Private choice cannot help the taxpayer
who does not want to finance the propagation of religious
beliefs, whether his own or someone else’s. It will not help
religious minorities too few in number to support a school
that teaches their beliefs. And it will not satisfy those
whose religious beliefs preclude them from participating in
a government-sponsored program. Some or many of the
persons who fit these descriptions may well feel ignored—
or worse—when public funds are channeled to religious
schools. See Zelman, 536 U.S., at 728 (BREYER, J., dissent-
ing). These feelings may, in turn, sow religiously inspired
political conflict and division—a risk that is considerably
greater where States are required to include religious
schools in programs like the one before us here. And it is
greater still where, as here, those programs benefit only a
handful of a State’s many religious denominations. See
ibid.; Big Sky Scholarships, Schools (2019),
www.bigskyscholarships.org/schools.
Indeed, the records of Montana’s constitutional conven-
tion show that these concerns were among the reasons that
a religiously diverse group of delegates, including faith
leaders of different denominations, supported the no-aid
provision. See Brief for Respondents 18–23; Brief for Mon-
tana Constitutional Convention Delegates as Amici Curiae
19–21, 22, 24–25 (noting support for the provision from a
Cite as: 591 U. S. ____ (2020) 13
BREYER, J., dissenting
Congregationalist minister, the Roman Catholic priest re-
sponsible for Catholic schools in the Diocese of Great Falls,
a Methodist pastor, a Presbyterian minister, and the Mon-
tana Catholic Conference, among others).
In an effort to downplay this risk and further distinguish
this case from Locke, the majority contends that “Montana’s
Constitution does not zero in on any particular ‘essentially
religious’ course of instruction.” Ante, at 13 (quoting Locke,
540 U.S., at 721). But this is not a facial challenge to the
no-aid provision. See Reply Brief 8. As applied, the provi-
sion affects only a scholarship program that, in effect, uses
taxpayer funds to help pay for student tuition at religious
schools. We have long recognized that unrestricted cash
payments of this kind raise special establishment concerns.
Cf. Mitchell v. Helms, 530 U.S. 793, 818–819 (2000) (plu-
rality opinion); see id., at 848–849 (O’Connor, J., concurring
in judgment). And for good reason: The subsidy petitioners
demand would go to pay for, among other things, the sala-
ries of teachers and administrators who have been found in
at least some instances to so “personify [the] beliefs” of the
churches that employ them that they are quite literally
“ministers” within the meaning of the First Amendment.
Hosanna-Tabor, 565 U.S., at 188.
If, for 250 years, we have drawn a line at forcing taxpay-
ers to pay the salaries of those who teach their faith from
the pulpit, I do not see how we can today require Montana
to adopt a different view respecting those who teach it in
the classroom.
II
In reaching its conclusion that the Free Exercise Clause
requires Montana to allow petitioners to use taxpayer-
supported scholarships to pay for their children’s religious
education, the majority makes several doctrinal innova-
tions that, in my view, are misguided and threaten adverse
consequences.
14 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
Although the majority refers in passing to the “play in the
joints” between that which the Establishment Clause for-
bids and that which the Free Exercise Clause requires, its
holding leaves that doctrine a shadow of its former self.
See, e.g., Cutter, 544 U.S., at 719; Walz, 397 U.S., at 669.
Having concluded that there is no obstacle to subsidizing a
religious education under our Establishment Clause prece-
dents, the majority says little more about Montana’s anti-
establishment interests or the reasoning that underlies
them. It does not engage with the State’s concern that its
funds not be used to support religious teaching. Instead,
the Court holds that it need not consider how Montana’s
funds would be used because, in its view, all distinctions on
the basis of religion—whether in respect to playground
grants or devotional teaching—are similarly and presump-
tively unconstitutional. See ante, at 10.
Setting aside the problems with the majority’s character-
ization of this case, supra, at 7–8, I think the majority is
wrong to replace the flexible, context-specific approach of
our precedents with a test of “strict” or “rigorous” scrutiny.
And it is wrong to imply that courts should use that same
heightened scrutiny whenever a government benefit is at
issue. See ante, at 9, 11–12.
Experience has taught us that “we can only dimly per-
ceive the boundaries of permissible government activity in
this sensitive area of constitutional adjudication.” Tilton v.
Richardson, 403 U.S. 672, 678 (1971) (plurality opinion);
see also Schempp, 374 U.S., at 306 (opinion of Goldberg,
J., joined by Harlan, J.) (there is “no simple and clear meas-
ure which by precise application can readily and invariably
demark the permissible from the impermissible”); Walz,
397 U.S., at 669 (“[R]igidity could well defeat the basic pur-
pose of these provisions, which is to insure that no religion
be sponsored or favored, none commanded, and none inhib-
ited”). If the Court has found it possible to walk what we
have called the “ ‘tight rope’ ” between the two Religion
Cite as: 591 U. S. ____ (2020) 15
BREYER, J., dissenting
Clauses, it is only by “preserving doctrinal flexibility and
recognizing the need for a sensible and realistic application”
of those provisions. Yoder, 406 U.S., at 221.
The Court proceeded in just this way in Locke. It consid-
ered the same precedents the majority today cites in sup-
port of its presumption of unconstitutionality. But it found
that applying the presumption set forth in those cases to
Washington’s decision not to fund devotional degrees would
“extend” them “well beyond not only their facts but their
reasoning.” 540 U.S., at 720. In my view, that analysis
applies equally to this case.
Montana’s law does not punish religious exercise.
Cf. Locke, 540 U.S., at 720 (citing Church of Lukumi Ba-
balu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993)); see
ante, at 11. It does not deny anyone, because of their faith,
the right to participate in political affairs of the community.
Cf. Locke, 540 U.S., at 720–721 (citing McDaniel v. Paty,
435 U.S. 618, 626 (1978)); see ante, at 11–12. And it does
not require students to choose between their religious be-
liefs and receiving secular government aid such as unem-
ployment benefits. Cf. Locke, 540 U.S., at 720 (citing Sher-
bert v. Verner, 374 U.S. 398, 403–404 (1963)); see ante, at
11–12. The State has simply chosen not to fund programs
that, in significant part, typically involve the teaching and
practice of religious devotion. And “a legislature’s decision
not to subsidize the exercise of a fundamental right does not
infringe the right, and thus is not subject to strict scrutiny.”
Regan v. Taxation With Representation of Wash., 461 U.S.
540, 549 (1983); see also Lyng v. Automobile Workers, 485
U.S. 360, 368 (1988).
I disagree, then, with what I see as the majority’s doctri-
nal omission, its misplaced application of a legal presump-
tion, and its suggestion that this presumption is appropri-
ate in many, if not all, cases involving government benefits.
As I see the matter, our differences run deeper than a sim-
ple disagreement about the application of prior case law.
16 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
The Court’s reliance in our prior cases on the notion of
“play in the joints,” our hesitation to apply presumptions of
unconstitutionality, and our tendency to confine benefit-
related holdings to the context in which they arose all re-
flect a recognition that great care is needed if we are to re-
alize the Religion Clauses’ basic purpose “to promote and
assure the fullest scope of religious liberty and religious tol-
erance for all and to nurture the conditions which secure
the best hope of attainment of that end.” Schempp, 374
U.S., at 305 (opinion of Goldberg, J., joined by Harlan, J.);
see Van Orden v. Perry, 545 U.S. 677, 698 (2005) (BREYER,
J., concurring in judgment).
For one thing, government benefits come in many shapes
and sizes. The appropriate way to approach a State’s
benefit-related decision may well vary depending upon the
relation between the Religion Clauses and the specific ben-
efit and restriction at issue. For another, disagreements
that concern religion and its relation to a particular benefit
may prove unusually difficult to resolve. They may involve
small but important details of a particular benefit program.
Does one detail affect one religion negatively and another
positively? What about a religion that objects to the partic-
ular way in which the government seeks to enforce manda-
tory (say, qualification-related) provisions of a particular
benefit program? See, e.g., New Life Baptist Church Acad-
emy v. East Longmeadow, 885 F.2d 940 (CA1 1989)
(BREYER, J., for the court). Or the religious group that for
religious reasons cannot accept government support? See
Brief for Respondents 20–21 (noting, inter alia, Seventh-
day Adventists’ support for Montana’s no-aid provision on
this ground). And what happens when qualification re-
quirements mean that government money flows to one reli-
gion rather than another? Courts are ill equipped to deal
with such conflicts. Yet, in a Nation with scores of different
religions, many such disagreements are possible. And I
have only scratched the surface.
Cite as: 591 U. S. ____ (2020) 17
BREYER, J., dissenting
The majority claims that giving weight to these consider-
ations would be a departure from our precedent and give
courts too much discretion to interpret the Religion
Clauses. See ante, at 16–18. But we have long understood
that the “application” of the First Amendment’s mandate of
neutrality “requires interpretation of a delicate sort.”
Schempp, 374 U.S., at 226. “Each value judgment under
the Religion Clauses,” we have explained, must “turn on
whether particular acts in question are intended to estab-
lish or interfere with religious beliefs and practices or have
the effect of doing so.” Walz, 397 U.S., at 669.
Nor does the majority’s approach avoid judicial entangle-
ment in difficult and sensitive questions. To the contrary,
as I have just explained, it burdens courts with the still
more complex task of untangling disputes between religious
organizations and state governments, instead of giving def-
erence to state legislators’ choices to avoid such issues alto-
gether. At the same time, it puts States in a legislative di-
lemma, caught between the demands of the Free Exercise
and Establishment Clauses, without “breathing room” to
help ameliorate the problem.
I agree with the majority that it is preferable in some ar-
eas of the law to develop generally applicable tests. The
problem, as our precedents show, is that the interaction of
the Establishment and Free Exercise Clauses makes it par-
ticularly difficult to design a test that vindicates the
Clauses’ competing interests in all—or even most—cases.
That is why, far from embracing mechanical formulas, our
precedents repeatedly and frankly acknowledge the need
for precisely the kind of “ ‘judgment-by-judgment analysis’ ”
the majority rejects. Ante, at 17; see, e.g., Walz, 397 U.S.,
at 669. “The standards” of our prior decisions, we have said,
“should rather be viewed as guidelines with which to iden-
tify instances in which the objectives of the Religion
Clauses have been impaired.” Tilton, 403 U.S., at 678 (plu-
rality opinion); accord, Nyquist, 413 U.S., at 773, n. 31.
18 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
The Court’s occasional efforts to declare rules in spite of
this experience have failed to produce either coherence or
consensus in our First Amendment jurisprudence. See Van
Orden, 545 U.S., at 697 (BREYER, J., concurring in judg-
ment) (listing examples). The persistence of such disagree-
ments bears out what I have said—namely, that rigid,
bright-line rules like the one the Court adopts today too of-
ten work against the underlying purposes of the Religion
Clauses. And a test that fails to advance the Clauses’ pur-
poses is, in my view, far worse than no test at all.
Consider some of the practical problems that may arise
from the Court’s holding. The States have taken advantage
of the “play in the joints” between the Religion Clauses to
craft programs of public aid to education that address their
local needs. Many provide assistance to families with stu-
dents in nonpublic schools, ranging from scholarships to tax
credits and deductions that reimburse tuition expenses.
See Dept. of Ed., A Duncan et al., Education Options in the
States 3–6 (2009). Although most state constitutions today
have no-aid provisions like Montana’s, those provisions are
only one part of a broader system of local regulation. See
App. D to Brief for Respondents. Some States have con-
cluded that their no-aid provisions do not bar scholarships
to students at religious schools, while others without such
clauses have nevertheless chosen not to fund religious edu-
cation. See Brief for State of Colorado et al. as Amici Curiae
6–7; Brief for State of Maine as Amicus Curiae 10–15. To-
day’s decision upends those arrangements without stopping
to ask whether they might actually further the objectives of
the Religion Clauses in some or even many cases.
And what are the limits of the Court’s holding? The ma-
jority asserts that States “need not subsidize private educa-
tion.” Ante, at 20. But it does not explain why that is so. If
making scholarships available to only secular nonpublic
schools exerts “coercive” pressure on parents whose faith
impels them to enroll their children in religious schools,
Cite as: 591 U. S. ____ (2020) 19
BREYER, J., dissenting
then how is a State’s decision to fund only secular public
schools any less coercive? Under the majority’s reasoning,
the parents in both cases are put to a choice between their
beliefs and a taxpayer-sponsored education.
Accepting the majority’s distinction between public and
nonpublic schools does little to address the uncertainty that
its holding introduces. What about charter schools? States
vary widely in how they permit charter schools to be struc-
tured, funded, and controlled. See Mead, Devilish Details:
Exploring Features of Charter School Statutes That Blur
the Public/Private Distinction, 40 Harv. J. Legis. 349, 353–
357, 367–368 (2003). How would the majority’s rule distin-
guish between those States in which support for charter
schools is akin to public school funding and those in which
it triggers a constitutional obligation to fund private reli-
gious schools? The majority’s rule provides no guidance,
even as it sharply limits the ability of courts and legisla-
tures to balance the potentially competing interests that
underlie the Free Exercise and Antiestablishment Clauses.
* * *
It is not easy to discern “the boundaries of the neutral
area between” the two Religion Clauses “within which the
legislature may legitimately act.” Tilton, 403 U.S., at 677
(plurality opinion). And it is more difficult still in cases,
such as this one, where the Constitution’s policy in favor of
free exercise, on one hand, and against state sponsorship,
on the other, are in conflict. In such cases, I believe there
is “no test-related substitute for the exercise of legal judg-
ment.” Van Orden, 545 U.S., at 700 (opinion of BREYER,
J.). That judgment “must reflect and remain faithful to the
underlying purposes of the Clauses, and it must take ac-
count of context and consequences measured in light of
those purposes.” Ibid. Here, those purposes, along with the
examples set by our decisions in Locke and Trinity Lu-
20 ESPINOZA v. MONTANA DEPT. OF REVENUE
BREYER, J., dissenting
theran, lead me to believe that Montana’s differential treat-
ment of religious schools is constitutional. “If any room ex-
ists between the two Religion Clauses, it must be here.”
Locke, 540 U.S., at 725. For these reasons, I respectfully
dissent from the Court’s contrary conclusion.
Cite as: 591 U. S. ____ (2020) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1195
_________________
KENDRA ESPINOZA, ET AL., PETITIONERS v.
MONTANA DEPARTMENT OF REVENUE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
MONTANA
[June 30, 2020]
JUSTICE SOTOMAYOR, dissenting.
The majority holds that a Montana scholarship program
unlawfully discriminated against religious schools by ex-
cluding them from a tax benefit. The threshold problem,
however, is that such tax benefits no longer exist for anyone
in the State. The Montana Supreme Court invalidated the
program on state-law grounds, thereby foreclosing the as-
applied challenge petitioners raise here. Indeed, nothing
required the state court to uphold the program or the state
legislature to maintain it. The Court nevertheless reframes
the case and appears to ask whether a longstanding Mon-
tana constitutional provision is facially invalid under the
Free Exercise Clause, even though petitioners disavowed
bringing such a claim. But by resolving a constitutional
question not presented, the Court fails to heed Article III
principles older than the Religion Clause it expounds. Cole-
man v. Thompson, 501 U.S. 722, 730 (1991) (forbidding
“resolution of a federal question” that “cannot affect” a
state-court judgment).
Not only is the Court wrong to decide this case at all, it
decides it wrongly. In Trinity Lutheran Church of Colum-
bia, Inc. v. Comer, 582 U. S. ___ (2017), this Court held, “for
the first time, that the Constitution requires the govern-
ment to provide public funds directly to a church.” Id., at
___ (SOTOMAYOR, J., dissenting) (slip op., at 1). Here, the
2 ESPINOZA v. MONTANA DEPT. OF REVENUE
SOTOMAYOR, J., dissenting
Court invokes that precedent to require a State to subsidize
religious schools if it enacts an education tax credit. Be-
cause this decision further “slights both our precedents and
our history” and “weakens this country’s longstanding com-
mitment to a separation of church and state beneficial to
both,” ibid., I respectfully dissent.
I
A
The Montana Supreme Court invalidated a state tax-
credit program because it was inconsistent with the Mon-
tana Constitution’s “no-aid provision,” Art. X, §6(1), which
forbids government appropriations for sectarian purposes,
including funding religious schools. 393 Mont. 446, 467–
468, 435 P.3d 603, 614 (2018). In so doing, the court ex-
pressly declined to resolve federal constitutional issues.
“Having concluded the Tax Credit Program violates” the no-
aid provision, the court held, “it is not necessary to consider
federal precedent interpreting the First Amendment’s less-
restrictive Establishment Clause.” Ibid. So too the court
declined to ground its holding on the Free Exercise Clause.
Ibid. The court also remedied the only potential harm of
discriminatory treatment by striking down the program al-
together. After the state court’s decision, neither secular
nor sectarian schools receive the program’s tax benefits.
Petitioners’ free exercise claim is not cognizable. The
Free Exercise Clause, the Court has said, protects against
“indirect coercion or penalties on the free exercise of reli-
gion.” Lyng v. Northwest Indian Cemetery Protective Assn.,
485 U.S. 439, 450 (1988). Accordingly, this Court’s cases
have required not only differential treatment, cf. ante, at
11–12, but also a resulting burden on religious exercise,
Lyng, 485 U.S., at 450–451.
Neither differential treatment nor coercion exists here
because the Montana Supreme Court invalidated the tax-
credit program entirely. 393 Mont., at 467–468, 435 P. 3d,
Cite as: 591 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
at 614. Because no secondary school (secular or sectarian)
is eligible for benefits, the state court’s ruling neither treats
petitioners differently based on religion nor burdens their
religious exercise. See ante, at 2–6 (GINSBURG, J., dissent-
ing). Petitioners remain free to send their children to the
religious school of their choosing and to exercise their faith.
To be sure, petitioners may want to apply for scholarships
and would prefer that Montana subsidize their children’s
religious education. But this Court had never before held
unconstitutional government action that merely failed to
benefit religious exercise. “The crucial word in the consti-
tutional text is ‘prohibit’: ‘For the Free Exercise Clause is
written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact
from the government.’ ” Lyng, 485 U.S., at 451 (quoting
Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J.,
concurring)). Put another way, the Constitution does not
compel Montana to create or maintain a tax subsidy.
Notably, petitioners did not allege that the no-aid provi-
sion itself caused their harm or that invalidating the entire
tax-credit scheme would create independent constitutional
concerns. Even now, petitioners disclaim a facial challenge
to the no-aid provision. Reply Brief 8, 20–22. Petitioners
thus have no cognizable as-applied claim arising from the
disparate treatment of religion, because there is no longer
a program to which Montana’s no-aid provision can apply.
Nor is it enough that petitioners might wish that Mon-
tana’s no-aid provision were no longer good law. Petitioners
identify no disparate treatment traceable to the state con-
stitutional provision that they challenge because the tax-
credit program no longer operates. See Simon v. Eastern
Ky. Welfare Rights Organization, 426 U.S. 26, 41–42, 44–
46 (1976).1 Short of ordering Montana to create a religious
——————
1 To revive their as-applied challenge, petitioners rely on Griffin v.
4 ESPINOZA v. MONTANA DEPT. OF REVENUE
SOTOMAYOR, J., dissenting
subsidy that Montana law does not permit, there is nothing
for this Court to do.2
——————
School Bd. of Prince Edward Cty., 377 U.S. 218 (1964), for the proposi-
tion that eliminating a public benefit does not always remedy discrimi-
nation. See Reply Brief 5. But Griffin is inapposite. There, a Virginia
county closed its public schools and so-called “private schools” were set
up in their place to avoid a court desegregation order. See 377 U.S., at
223. These so-called private schools “were open to whites only and . . .
were in fact run by a practical partnership between State and county,
designed to preserve segregated education.” Palmer v. Thompson, 403
U.S. 217, 221–222 (1971). That is nothing like what the Montana Su-
preme Court’s remedy achieved here. Nor have petitioners said other-
wise; there is no allegation that Montana confers clandestine tax credits
solely to secular schools.
2 Petitioners here have not asserted a free exercise claim on a theory
that they were victims of religious animus, either. Cf. Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993). Instead, one con-
currence seeks to make the argument for them while attempting to com-
pare the state constitutional provision here with a nonunanimous jury
rule rooted in racial animus. Ante, at 1 (opinion of ALITO, J.) (citing the
dissent in Ramos v. Louisiana, 590 U. S. ___ (2020)). But those questions
are not before the Court.
In any case, the concurrence’s arguments are as misguided as they are
misplaced. Citing the Court’s opinion in Ramos, the concurrence main-
tains that a law’s “ ‘uncomfortable past’ must still be ‘[e]xamined.’ ” Ante,
at 10 (opinion of ALITO, J.). But as previously explained: “Where a law
otherwise is untethered to [discriminatory] bias—and perhaps also
where a legislature actually confronts a law’s tawdry past in reenacting
it—the new law may well be free of discriminatory taint.” Ramos, 590
U. S., at ___ (SOTOMAYOR, J., concurring in part) (slip op., at 4). That
could not “be said of the laws at issue” in Ramos. Ibid. It can be here.
See Part II, infra.
The concurrence overlooks the starkly different histories of these state
laws. Also missing from the concurrence (and the amicus briefs it re-
peats) is the stubborn fact that the constitutional provision at issue here
was adopted in 1972 at a convention where it was met with overwhelm-
ing support by religious leaders (Catholic and non-Catholic), even those
who examined the history of prior no-aid provisions. See Brief for Re-
spondents 16–27; 6 Montana Constitutional Convention 1971–1972 Pro-
ceedings and Transcript, pp. 2012–2013, 2016–2017 (Mont. Legislature
and Legislative Council); see also ante, at 12–13 (BREYER, J., dissenting);
Cite as: 591 U. S. ____ (2020) 5
SOTOMAYOR, J., dissenting
B
As another dissenting opinion observes, see ante, at 3
(opinion of GINSBURG, J.), the Court sidesteps these obsta-
cles by asking a question that this case does not raise and
that the Montana Supreme Court did not answer: whether
by excluding “religious schools and affected families from [a
scholarship] program,” Montana’s no-aid provision was
“consistent with the Federal Constitution,” ante, at 7 (ma-
jority opinion). In so doing, the Court appears to transform
petitioners’ as-applied challenge into a facial one. Ante, at
10; see also ante, at 1 (THOMAS, J., concurring).
This approach lacks support in our case law. The Court
typically declines to read state-court decisions as impliedly
resolving federal questions, especially ones not raised by
the parties. See, e.g., Adams v. Robertson, 520 U.S. 83, 88–
89 (1997) (per curiam). Indeed, to honor principles of com-
ity, this Court generally dismisses writs of certiorari from a
State’s highest court where, as is true here of the Court’s
bespoke inquiry, “the sole federal question” the Court seeks
to decide was not “raised, preserved, or passed upon in the
state courts below.” Cardinale v. Louisiana, 394 U.S. 437,
438 (1969); see also Webb v. Webb, 451 U.S. 493, 499 (1981).
That rule respects not only federalism, but also the sepa-
ration of powers. Article III confines this Court’s authority
to adjudicating actual “[c]ases” or “[c]ontroversies.” See
also Allen v. Wright, 468 U.S. 737, 750 (1984) (case-or-con-
troversy requirement reflects “the idea of separation of pow-
ers on which the Federal Government is founded”). Federal
courts thus lack power “to decide questions that cannot af-
fect the rights of litigants in the case before them” and may
——————
Brief for Public Funds Public Schools as Amicus Curiae 5–11; Brief for
Montana Constitutional Convention Delegates as Amici Curiae 19–25.
These supporters argued that it would be wrong to put taxpayer dollars
to religious purposes and that it would invite unwelcome entanglement
between church and state. See, e.g., U. S. Const., Amdt. 1; Brief for Re-
spondents 20.
6 ESPINOZA v. MONTANA DEPT. OF REVENUE
SOTOMAYOR, J., dissenting
resolve only “real and substantial controvers[ies] admitting
of specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.” Lewis v. Con-
tinental Bank Corp., 494 U.S. 472, 477 (1990) (alteration in
original; internal quotation marks omitted). Consonant
with that limitation, the Court has declined to “ ‘ “formulate
a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.” ’ ” Washington
State Grange v. Washington State Republican Party, 552
U.S. 442, 450 (2008) (quoting Ashwander v. TVA, 297 U.S.
288, 347 (1936) (Brandeis, J., concurring)). By answering
an apparent hypothetical question, today’s Court subverts
these longstanding practices.
True, on occasion this Court has resolved federal consti-
tutional questions when it was unclear whether the state-
court judgment rested on an adequate and independent
state-law ground. See, e.g., Michigan v. Long, 463 U.S.
1032, 1043 (1983). But that is not this case. Recall that the
Montana Supreme Court remedied a state constitutional vi-
olation by invalidating a state program on state-law
grounds, having expressly declined to reach any federal is-
sue. See 393 Mont., at 467–468, 435 P.3d, at 614; see also
ante, at 4–5 (GINSBURG, J., dissenting).
These principles exist to prevent this Court from issuing
advisory opinions, sowing confusion, and muddying the
law. This is case in point. Having held that petitioners may
not be “exclu[ded] from the scholarship program” that no
longer exists, the Court remands to the Montana Supreme
Court for “further proceedings not inconsistent with this
opinion.” Ante, at 22. But it is hard to tell what this Court
wishes the state court to do. There is no program from
which petitioners are currently “exclu[ded],” so must the
Montana Supreme Court order the State to recreate one?
Has this Court just announced its authority to require a
Cite as: 591 U. S. ____ (2020) 7
SOTOMAYOR, J., dissenting
state court to order a state legislature to fund religious ex-
ercise, overruling centuries of contrary precedent and his-
torical practice? See Cutter v. Wilkinson, 544 U.S. 709
(2005); Locke v. Davey, 540 U.S. 712 (2004); see also Trinity
Lutheran, 582 U. S., at ___–___, and nn. 7–11 (SOTOMAYOR,
J., dissenting) (slip op., at 12–20, and nn. 7–11) (describing
States’ religious disestablishment movements near the
founding and cataloging state constitutional provisions de-
clining to aid religious ministry). Indeed, it appears that
the Court has declared that once Montana created a tax
subsidy, it forfeited the right to eliminate it if doing so
would harm religion. This is a remarkable result, all the
more so because the Court strains to reach it.
The Court views its decision as “simply restor[ing] the
status quo established by the Montana Legislature.” Ante
at 22, n. 4. But it overlooks how that status quo allowed
the State Supreme Court to cure any disparate treatment
of religion while still giving effect to a state constitutional
provision ratified by the citizens of Montana. Today’s deci-
sion replaces a remedy chosen by representatives of Mon-
tanans and designed to honor the will of the electorate with
one that the Court prefers instead.
In sum, the decision below neither upheld a program that
“disqualif[ies] some private schools solely because they are
religious,” ante, at 20, nor otherwise decided the case on
federal grounds. The Court’s opinion thus turns on a coun-
terfactual hypothetical it is powerless (and unwise) to de-
cide.
II
Even on its own terms, the Court’s answer to its hypo-
thetical question is incorrect. The Court relies principally
on Trinity Lutheran, which found that disqualifying an en-
tity from a public benefit “solely because of [the entity’s] re-
ligious character” could impose “a penalty on the free exer-
cise of religion.” 582 U. S., at ___–___ (slip op., at 9–10).
8 ESPINOZA v. MONTANA DEPT. OF REVENUE
SOTOMAYOR, J., dissenting
Trinity Lutheran held that ineligibility for a government
benefit impermissibly burdened a church’s religious exer-
cise by “put[ting it] to the choice between being a church
and receiving a government benefit.” Id., at ___ (slip op., at
13). Invoking that precedent, the Court concludes that
Montana must subsidize religious education if it also subsi-
dizes nonreligious education.3
The Court’s analysis of Montana’s defunct tax program
reprises the error in Trinity Lutheran. Contra the Court’s
current approach, our free exercise precedents had long
granted the government “some room to recognize the
unique status of religious entities and to single them out on
that basis for exclusion from otherwise generally applicable
laws.” Id., at ___ (SOTOMAYOR, J., dissenting) (slip op., at
9).
Until Trinity Lutheran, the right to exercise one’s religion
did not include a right to have the State pay for that reli-
gious practice. See School Dist. of Abington Township v.
Schempp, 374 U.S. 203, 226 (1963). That is because a con-
trary rule risks reading the Establishment Clause out of the
Constitution. Although the Establishment Clause “per-
mit[s] some government funding of secular functions per-
formed by sectarian organizations,” the Court’s decisions
“provide[d] no precedent for the use of public funds to fi-
nance religious activities.” Rosenberger v. Rector and Visi-
tors of Univ. of Va., 515 U.S. 819, 847 (1995) (O’Connor, J.,
concurring). After all, the government must avoid “an un-
lawful fostering of religion.” Cutter, 544 U.S., at 714 (in-
ternal quotation marks omitted). Thus, to determine the
constitutionality of government action that draws lines
based on religion, our precedents “carefully considered
——————
3 Petitioners’ as-applied challenge fails under Trinity Lutheran for the
reasons stated above: The Montana Supreme Court’s remedy does not
put petitioners to any “choice” at all. Rather, petitioners are free to send
their children to any secondary school they wish while practicing their
religious beliefs, and no one receives a tax credit for their school choice.
Cite as: 591 U. S. ____ (2020) 9
SOTOMAYOR, J., dissenting
whether the interests embodied in the Religion Clauses jus-
tify that line.” Trinity Lutheran, 582 U. S., at ___
(SOTOMAYOR, J., dissenting) (slip op., at 8). The relevant
question had always been not whether a State singles out
religious entities, but why it did so.
Here, a State may refuse to extend certain aid programs
to religious entities when doing so avoids “historic and sub-
stantial” antiestablishment concerns. Locke, 540 U.S., at
725. Properly understood, this case is no different from
Locke because petitioners seek to procure what the plain-
tiffs in Locke could not: taxpayer funds to support religious
schooling.4 Indeed, one of the concurrences lauds petition-
ers’ spiritual pursuit, acknowledging that they seek state
funds for manifestly religious purposes like “teach[ing] re-
ligion” so that petitioners may “outwardly and publicly” live
out their religious tenets. Ante, at 3 (opinion of GORSUCH,
J.). But those deeply religious goals confirm why Montana
may properly decline to subsidize religious education. In-
volvement in such spiritual matters implicates both the Es-
tablishment Clause, see Cutter, 544 U.S., at 714, and the
free exercise rights of taxpayers, “denying them the chance
to decide for themselves whether and how to fund religion,”
Trinity Lutheran, 582 U. S., at ___ (SOTOMAYOR, J., dissent-
ing) (slip op., at 17). Previously, this Court recognized that
a “prophylactic rule against the use of public funds” for “re-
ligious activities” appropriately balanced the Religion
Clauses’ differing but equally weighty interests. Ibid.
The Court maintains that this case differs from Locke be-
cause no pertinent “ ‘historic and substantial’ ” tradition
supports Montana’s decision. Ante, at 14. But the Court’s
——————
4 Locke confirms that a facial challenge to no-aid provisions must fail.
But cf. ante, at 13–14 (majority opinion). In Locke, this Court upheld the
application of a materially similar no-aid provision in Washington State,
concluding that the Free Exercise Clause permitted Washington to forbid
state-scholarship funds for students pursuing devotional theology de-
grees. 540 U.S., at 721.
10 ESPINOZA v. MONTANA DEPT. OF REVENUE
SOTOMAYOR, J., dissenting
historical analysis is incomplete at best. For one thing, the
Court discounts anything beyond the 1850s as failing to “es-
tablish an early American tradition,” ante, at 15, while it-
self relying on examples from around that time, ante, at 14.
For another, although the States may have had “rich diver-
sity of experience” at the founding, “the story relevant here
is one of consistency.” Trinity Lutheran, 582 U. S., at ___
(SOTOMAYOR, J., dissenting) (slip op., at 11); see also id., at
___–___ (slip op., at 12–20) (chronicling state histories).
The common thread was that “those who lived under the
laws and practices that formed religious establishments
made a considered decision that civil government should
not fund ministers and their houses of worship.” Id., at ___
(slip op., at 16). And as the Court’s recent precedent holds,
at least some teachers in religiously affiliated schools are
ministers who inculcate the faith. See Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, 565
U.S. 171, 178, 196 (2012); see also ante, at 3 (GORSUCH, J.,
concurring); ante, at 6, 13 (BREYER, J., dissenting).
The Court further suggests that by abstaining from fund-
ing religious activity, the State is “ ‘suppress[ing]’ ” and “pe-
naliz[ing]” religious activity. Ante, at 19–20. But a State’s
decision not to fund religious activity does not “disfavor re-
ligion; rather, it represents a valid choice to remain secular
in the face of serious establishment and free exercise con-
cerns.” Trinity Lutheran, 582 U. S., at ___ (SOTOMAYOR, J.,
dissenting) (slip op., at 24). That is, a “legislature’s decision
not to subsidize the exercise of a fundamental right does not
infringe the right.” Regan v. Taxation With Representation
of Wash., 461 U.S. 540, 549 (1983).
Finally, it is no answer to say that this case involves “dis-
crimination.” Ante, at 11–12. A “decision to treat entities
differently based on distinctions that the Religion Clauses
make relevant does not amount to discrimination.” Trinity
Lutheran, 582 U. S., at ___ (SOTOMAYOR, J., dissenting)
(slip op., at 22). So too here.
Cite as: 591 U. S. ____ (2020) 11
SOTOMAYOR, J., dissenting
* * *
Today’s ruling is perverse. Without any need or power to
do so, the Court appears to require a State to reinstate a
tax-credit program that the Constitution did not demand in
the first place. We once recognized that “[w]hile the Free
Exercise Clause clearly prohibits the use of state action to
deny the rights of free exercise to anyone, it has never
meant that a majority could use the machinery of the State
to practice its beliefs.” Schempp, 374 U.S., at 226 (empha-
sis deleted). Today’s Court, by contrast, rejects the Religion
Clauses’ balanced values in favor of a new theory of free
exercise, and it does so only by setting aside well-estab-
lished judicial constraints.
I respectfully dissent.