Constitutional Law

Anti-Establishment Liberty Is Not A Discrimination Against Religion

The issue in Espinoza v. Montana Department of Revenue is being distorted by atextual and ahistorical nondiscrimination principles.

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This fall, the United States Supreme Court will determine whether a provision of the Montana Constitution which prohibits the distribution of public funds “to any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or domination” violates the federal Constitution’s First or Fourteenth Amendments. The case, Espinoza v. Montana Department of Revenue, comes to the Supreme Court after the Montana Supreme Court ruled that religious schools should be excluded from a 2015 scholarship program created by the Montana legislature based on this provision in its state constitution. For many on the Christian right, and unfortunately, multiple members on the U.S. Supreme Court who claim to be originalists, denials of government public welfare assessments to religion amount to nothing more than discrimination against religion. Problem is, none of the Founders agreed.

James Madison, the leading founder on religious liberty, opposed state assessment frameworks that mirror the type the religious right is asking for in the Espinoza case. For example, the assessment framework Madison opposed in his home state of Virginia would have directed government money to both religious and secular institutions generally. It would have utilized a “neutral” or individually autonomous private choice system of distribution. Yet, Madison was adamant that this “neutral” government assessment scheme nevertheless violated his standard of free conscience liberty (a standard Madison would go on to legislatively establish in both his home state of Virginia and in the First Amendment). Was Madison, the First Amendment, or the Virginia Statute for Religious Freedom seeking to further a form of bigotry because all three originally sought to deny religious access to neutral government assessments? No, Madison simply felt that allowing even neutrally applied aid to religion nevertheless undermined religion’s exclusive province over spiritual matters. In other words, Madison was establishing strict separation from civil aid as a matter of religious liberty.

Of course, to have such separation logically infers some form of government discrimination against churches for the simple fact that they are churches, specifically in cases such as Espinoza where the issue is access to government assessments. In the discussion surrounding Espinoza, however, we are already seeing significant distortion of this straightforward denial. David French has argued Montana’s constitutional provision amounts to an expanded Blaine Amendment-type discrimination against religion where “[n]ow the law aimed at Catholics affects all people of faith.” This characterization of Montana’s constitutional provision by French is ignorant at best, and disingenuous at worst. That French is engaging in either in a piece where he wrongfully scolds Linda Greenhouse’s analysis of the Espinoza case for leaving out a key feature of religious liberty certainly makes it ironic.

What French forgets or omits from his discussion of the Blaine Amendments is that the Blaine framework was not discriminatory because it denied Catholic institutions access to public funds. Rather, the Blaine movement was a reflection of bigotry because it sought to enumerate the Protestant position on common schools into all states and the federal Constitution, protecting obligatory Protestant bible-reading and prayer in schools. Although French mentions the forced bible-reading, he ignorantly or conveniently leaves out the fact that wholesale denials of government assessments to religious organizations was an essential feature of original Madisonian First Amendment liberty, not a Blaine-inspired form of bigotry against Catholics.

What is currently supplanting Madisonian strict separation is a modern First Amendment doctrine built upon these two nondiscrimination principles first set out in adjacent paragraphs in Everson v. Board of Education: 1) “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”; and, 2) “On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

As First Amendment scholar Douglas Laycock has demonstrated, “Everson’s two principles are inconsistent”, as “each can expand to cover all the cases.” Per Laycock:

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Every law providing for any form of neutrally distributed government funding can be understood as public welfare legislation. And any part of that funding that goes to a religious organization can be understood as support for religion. The Court has never acknowledged the conflict between these two principles, but it has struggled with that conflict for seventy years.

The effect of having a modern doctrine built on these inconsistent principles is that the Establishment and Free Exercise clauses have been constantly pitted against each other in competing interests. For example, denials of assessments to religious organizations are no longer debates about the extension of anti-establishment liberty and respect to religions exclusive province over spiritual works. Now, a contradictory modern free exercise standard can categorize denials of direct government support to religion as discrimination, a result Madison would find incoherent. To be an originalist and support the use of these contradictory, modern conjured, anti-discrimination principles is to be a legal heretic. Pun intended.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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