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The Supreme Court expands the scope of religious free exercise

And Clarence Thomas gets some company.

Associate Justice Clarence Thomas smiles during an event at the Library of Congress, Thursday, Feb. 15, 2018, in Washington. (AP Photo/Pablo Martinez Monsivais)

(RNS) — In a closely watched case handed down Tuesday (June 30), the Supreme Court took another step in expanding the scope of religious free exercise in America. It looks as if it won’t be the last.

The case, Espinoza v. Montana Department of Revenue, concerned a state program that provided scholarships for use in private schools. Because Montana’s Constitution has since statehood barred direct or indirect public subsidies of religious schools, several parents were denied the opportunity to use the scholarships to send their children to a Christian school.

The parents sued, and in due course the Montana Supreme Court threw out the entire program for failing to indicate that the scholarships could not be used in religious schools. In a 5-4 decision, the U.S. Supreme Court found that Montana’s no-aid constitutional provision violated the First Amendment’s free exercise clause. 

With the four liberals dissenting, Chief Justice John Roberts wrote for the court’s conservative majority. His argument turns on sharply differentiating “religious status” from “religious use,” the idea being that religious schools as a class cannot be denied public benefits but that specific kinds of religious instruction can be.

Two prior cases are critical to this distinction. In Locke v. Davey (2004), the court decided that a student in the state of Washington could not use a state scholarship to pursue a devotional theology degree. In Trinity Lutheran v. Comer (2017), the court decided that a Missouri church could apply for a state grant to resurface its outdoor playground. Roberts’ claim was that Espinoza is equivalent to Trinity Lutheran, not Locke.

The liberal justices weren’t buying and neither (despite formally joining Roberts’ opinion) was conservative Neil Gorsuch. “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,” wrote Gorsuch in a concurrence. “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)?”

In dissent, Stephen Breyer pointed out that in its 2012 Hosanna-Tabor decision the court for the first time recognized a ministerial exception to employment discrimination law precisely because “some teachers at religious schools see their work as a form of ministry.” If teaching is a ministry, how can having the state underwrite education in a religious school not constitute paying for religious instruction a la Locke? And if it is paying for religious instruction, wouldn’t that run afoul of the First Amendment’s establishment clause?

For Clarence Thomas, the original sin in the court’s modern religion jurisprudence came when the establishment clause — originally designed to let the states have their own religious regimes — was “incorporated” (federalized) in 1947. “Properly understood, the Establishment Clause does not prohibit States from favoring religion,” Thomas wrote in a concurrence of his own.

According to him, under a proper interpretation of the clause, “robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level.” The result of such debate could be, of course, that some states (and localities?) might decide to establish religion in any number of ways — such as by permitting state funding of theological education or by allowing teacher-led prayer in the public schools.

Thomas’ desire that the establishment clause be “dis-incorporated” has long been seen as an eccentricity on the court. Gorsuch just made it significantly less eccentric by signing on to Thomas’ concurrence. Put that together with Roberts’ willingness to read the precedents as he has and it’s a solid bet that the court will be continuing to expand the scope of free exercise for some time to come.