Espinoza: Highlights from Supreme Court argument in school funding case

by | Jan 27, 2020

Last week, the U.S. Supreme Court heard oral argument in Espinoza v. Montana Dept. of Revenue, a case involving a state program that offered dollar-for-dollar tax credits for tuition to private schools, including religious schools. The Montana Supreme Court struck down the program because of the eligibility of religious schools to participate. The court cited a provision in the state constitution that prohibits government funds being used for religious purposes.

In an op-ed for Baptist News Global, BJC General Counsel Holly Hollman offered an extremely helpful overview of the case and explained BJC’s position, which defends the “principle that government should not fund religious activities.” BJC argued, in a brief filed with the Court, that the Montana Supreme Court’s decision, striking down the program in light of the state constitution’s no-aid to religion clause, should be affirmed. Far from being an example of unconstitutional discrimination, the brief explained, declining to fund religious education with taxpayer funds is a long-standing means of ensuring religious liberty under constitutional law, which often treats religion distinctively to achieve that goal.

During last week’s questioning, the Court wrestled with that very issue of whether treating religion differently when it comes to government funding is unlawful discrimination. After all, some justices wondered, wouldn’t it be unconstitutional to base such funding on race? Why would it then be ok to bar funding for religion? As you will see, there are some good reasons.

Here is an extended excerpt on that issue, taken from the transcript of the oral argument during questioning of Adam Unikowsky, who represented the Montana Department of Revenue in support of the rule barring funding for religious schools. (Audio of the argument is here):

JUSTICE KAGAN: [A] number of people have suggested that [the Montana Supreme Court’s decision to strike down the entire tax credit program] must be motivated by animus towards religion… I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea . . . Now, none of those things have anything to do with animus towards religion…


UNIKOWSKY: So I think that’s right, and I think that’s why we don’t think the race analogy is apt…


CHIEF JUSTICE ROBERTS: Why – why does that explain why the race analogy is inapt? I mean, the legislature may say they built parks and pools, and they say funding those, but if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program. And you wouldn’t defend that on saying they could have a judgment that it decreases tensions among the different races to keep them — no, you would just look at the facial discrimination, right, and conclude the fact that — that wouldn’t be good under your view, would it?


UNIKOWSKY: Of course not –…


CHIEF JUSTICE ROBERTS: How is that different than religion, which is also protected under — under the First Amendment?


UNIKOWSKY: Because I don’t think that race and religion are identical for all constitutional purposes…The answer is, I think if you accept that no-aid clauses are not facially unconstitutional, and I think it’s a hard argument to make for all the historical reasons, they’ve existed for such a long time, then you have to accept that it’s at least permissible for a state to say, for principled reasons deeply rooted in national tradition dating back to Madison, we have a preference to not fund religious activities, not prohibit it but not fund it.


JUSTICE ALITO: But there’s a difference between saying we’re not going to fund religious activities and saying we’re going to discriminate based on religion. That’s the point. They — the state — nobody’s claiming the state has an obligation to make particular grants to religious institutions or to provide any funding for private education at all. The question is, can they — if — if– if there is a program that is — that is designed to serve certain purposes, can they discriminate in the application of the — in the — in the — deciding who’s going to get the benefit of it on the basis of religious affiliation?


UNIKOWSKY: I think … there are certain things a state can’t do and certain things a state can do. What I think a state can do is say, look, we have a no-aid clause which has existed for a very long time and that says on its face that we prefer not to fund religious activities for good reasons I’d like to explain in just a second, okay? Now, we’re constrained by anti-discrimination principles from coercing people into abandoning their religion. So if we have these two principles, these principled non-bigoted and historically rooted views that we don’t want to fund religious activity on the one hand, and the First Amendment, which clearly guards against coercion and penalizing religious faith on the other, the way we’re going to balance it is to do what the state court did. . . .


JUSTICE ALITO: Basically what you’re saying is, the difference between this and race is, it’s permissible to discriminate on the basis of religion. It’s not permissible, ever, to discriminate on the basis of — of race. That’s what you’re saying.


UNIKOWSKY: I mean, look, it – it seems to me that when you talk about discrimination, we can mean two different things, all right? One way of looking at discrimination is to say that just — you can’t have a rule that treats religion differently from other subjects, which is I think is the core of Petitioners’ argument. And they say, look at the no-aid clause. It says religious schools are ineligible and it imposes no comparable restriction on anyone else, and therefore that’s just discrimination and it should be wiped out of the state constitution. So if — if — if you buy that argument, then you’re basically saying that like every no-aid clause since 1835 is unconstitutional, even at the founding. Look, all the state constitutions said things like, a tax won’t be levied to build a church. That is a form of discrimination, right? Like you can levy a tax to build a bridge but not a church.


JUSTICE BREYER: But aren’t you saying… Yes, race is different from religion. Why? There is no Establishment Clause in regard to race. What is the Establishment Clause? Well, it has something to do with not supporting religion. And there is nothing more religious except perhaps for the service in the church itself than religious education. That’s how we create a future for our religion.

A decision in this case is expected by the end of June. For more background and perspective, see BJC’s Espinoza resource page.