Espinoza v. Montana Dept.: 5 problems of a result-driven judicial review
The relationship between government funding and free exercise of religion is back at the United States Supreme Court (SCOTUS) after 2017 Trinity Lutheran Church of Columbia, Inc. v. Comer. In Espinoza v. Montana Dept. of Revenue (2020), petitioners brought a challenge to a state program that assisted with school tuition to beneficiaries of tax credit for their children to attend to a school of their parents’ choosing. But, under the State of Montana Constitution (Art. X, Se. 6(1)), there is a non-aid provision that prohibits government aid to any school controlled in whole or in part by any church, sect or denomination. Montana Department of Revenue issued a rule that enforces such prohibition of using the scholarships at religious school. A court at Montana enjoined the rule, but, the State Supreme Court reversed court below decision claiming that, a side from the rule of the Revenue Department, the program violated the State Constitution and it invalidated the entire program.
Following an exception to challenge State court final judgment in federal courts, petitioners sough review before the Supreme Court claiming that the program violated their free exercise of religion rights, by admitting the scholarship aid program for secular private schools, but, not for religious private schools. SCOTUS held the application of the no-aid provision to a state program providing tuition assistance discriminated against religious schools and the families whose children attend or hope to attend them under the First Amendment’s free exercise of religion clause.
By doing so, the Court reversed a judgment by Montana Supreme Court that upheld the program that grants tax credits to those who donate to organizations that award scholarships for private school tuition under the State Constitution non-aid provision for scholarship funds to sectarian schools. But, as explained above, the State Supreme Court invalidated the program entirely strictly under state laws without any further consideration in depth of petitioners’ free exercise of religion claim. In other words, no one is now entitled to benefit from the program and no one is being discriminated against because of the program.
On the face of it, the holding in Espinoza is quite simple. Distinguishing Locke v. Davis and expanding Trinity Lutheran’s holdings, Espinoza sweeps to jeopardizing most of the non-aid provisions in several State constitutions that forbids state financial assistance to religious institutions and giving a broad vision of how free exercise of religion shall be read in relation to government regulations. If the case were any different, the chief justice could be right and petitioners were discriminated against, but, the case and its implications are more complicated than that. Simply put, there were no reasons for the court to hear and/or rule on this case.
Nevertheless, for the sake of argument, let’s agree with Chief Justice Roberts that, whether based on status, action or practice, the tax credit or scholarship program based on non-aid provision, as applied to petitioners, discriminates on the basis of religion: whether scholarships benefit all schools, or not. Having said that, from a procedural and constitutional theory standpoint, a few things stand out from the case as a whole with — probably — unintended consequences in the future. As the follow paragraphs show, the inability of the court to self-restraint is problematic and more than protecting religious rights, it enhances a somewhat version of judicial activism.
First, true be told, the program challenged by the petitioners seems difficult to reconcile with the First Amendment free exercise of religion clause. But, as eager the majority was to expand Trinity Lutheran holding, was there something for the remedial powers of the courts? As the record — and ironically the majority opinion — shows, petitioners had no business before the Court. Although program was upheld by the State’s non aid provision, Montana Supreme Court struck down the program all together either way. Therefore, there was no State action to challenge; no State action distinguishing between religious and non-religious schools. Whether by refusing to grant certiorati or to dismiss afterwards because the writ was improvingly granted, the Court should’ve not taken this case.
Also, the State court judgment reveals no ongoing case or controversy for the Court to consider under its federal jurisdiction. Under the U.S Constitution, a federal court may hear a case if there is a case or controversy at the moment of the challenge; if it is based on a federal question o as a matter of a expressed jurisdiction for court’s intervention.
Following justices Ginsburg and Sotomayor’s train of thought in their separate opinions, Montana Supreme Court solved the case on independent and adequate state law grounds with due respect to the Supremacy Clause(Murdock v. City of Memphis); this should have been enough to precludes the Court’s jurisdiction on final State court judgments. If the State court decided the conflict on the basis of State law and to federal issues was adjudicated, then, the Supreme Court is barred to exercise its jurisdiction on final State court judgments. The program, all together, was struck by the State Supreme Court based on State law; the program itself created the problem and if the cause of the problem is no more — regardless our moral disagreements — the Court was barred from hearing and deciding this case.
Second, Espinoza has more far-reaching procedural consequences. Petitioners challenged the program and the State court judgment as applied to them. The State Constitution provision against aiding religious institutions with public funds was not subject to any proceedings neither before State or federal courts, only the program itself. Montana Supreme Court, recognizing that the program might be in conflict under the First Amendment of the federal Constitution, moved to invalidate the whole program for violating the State Constitution, leaving the federal question for some other time. Hence, no private school, of any sort or convictions, will receive public funds. If the claim as applied to petitioners was to denounce religious discrimination, such discrimination does not exist because the problem was no more a matter of State law.
Interestingly, Justice Thomas’s concurrence did not highlight this given his usually narrowed view on Article III standing (e.g who may bring a case or controversy to federal courts). If, as an applied challenged, there is no discriminatory grievances resulting from disparate treatment, there is nothing to remedy: or petitioners lacked standing to challenge Montana Supreme Court judgment before the Court, or the case is simply moot. Whatever the basis of the ruling would have been, it is clear that the State court decided the matter on adequate and independent state law. By deciding this case, the prohibition against advisory opinions (no case can be heard by a federal court unless there is a case or controversy going on) to federal courts became — once again — a mere suggestion.
Third, in terms of constitutional theory, another participant joins in this case, “the parade of horribles”. Because Montana Supreme Court invalidated the program all together, what remains is a positive claim of Petitioners requesting State funds to pay for a school of their choosing, in this case, a religious one. American constitutionalism, does not embrace constitutional rights in their positive dimensions.
By reversing Montana Supreme Court’s judgment, the program was reinstated, hence, the discrimination claim once dead was revived by SCOTUS, and, the program continues to be on the books. Now, as a result of such move, the Court actually granted Petitioners’ positive claim to obtain funds for a school of their choosing, even if there was no basis for it. Regardless there was no program making disparate treatment; nor the State constitutional provision was facially challenged neither under State and federal Constitution, the Court proceeded with a novel positive principle: when there is a discrimination on religious ground (status, belief) impeding access to public funds for education created by a program invalidated by a court of law, courts can restore the status quo in order to grant relief.
Fourth, of course, as shown, the program challenged by Espinoza might run afoul of the First Amendment. However, this was never properly adjudicated by state courts. There might be reasons to differentiate this case from Trinity Lutheran or maybe from Locke, who knows. But the moment was not ripe for such adjudication.
Fifth, Justices Thomas and Alito concurrences are worrisome for a number of reasons. I will focus on one in particular. It is quite interesting to read a defense of antidiscrimination or anti-subordination in one setting but no in others settings, specially where other minorities similar neutral disparities of treatment. Apparently, such view only matter to religious based discrimination.
More troublesome is Justice Thomas’ view of the Court setting a right over others when it is clear from this, and other separate opinions, that seeks a theological purpose to put religious freedoms as a preferred right before other strong rights such as equal protection. It is difficult to set a hierarchal order of rights, especially because their protected interests vary facially or as applied. In fact, some rights may be necessary to advance other constitutional rights as well, e.g. equal protection or the due process clause.
Morally speaking, the decision will have sweeping consequences that will open a more intertwined relationship between religion and government, or difficult the separation to avoiding discrimination or favoritism. But I cannot help to feel somewhat persuaded about the problematic incompatibility between a tax credit program discriminating against religion; it is possible that Justice Breyer might not be right this time regardless his very compelling dissent.
However, the Court chose the wrong case to deal with this issue, and to expand, with sweeping consequences, Trinity Lutheran. Montana Supreme Court, in a way, by invalidating the program all together the free exercise rights of Petitioners were preserved; the Court disregarded self-restraint and bite the sinful apple by reviving a dead program under state law for a result-driven decision. The clock is sticking before the gates of judicial Eden are closed for the eternity due to an unnecessary activism.
The author is a lecturer in Constitutional law, Comparative Constitutional Law and Jurisprudence at PUCMM-CSTA (Dominican Republic); and Iberoamerican University (UNIBE).
