Freedom of religion is not analogous to freedom from religion — a remedial lesson in constitutional law that the Supreme Court handed the state of Montana Tuesday.
In Espinoza v. Montana Department of Revenue, the Supreme Court slapped down a state law that denied state-sponsored scholarships to faith-based schools on the basis of their religious affiliation.
Shortly after the Montana legislature created a scholarship program for students attending private school, the Montana Department of Revenue instituted “Rule 1” to prohibit families from using these scholarships at faith-based schools. Interestingly, Montana’s attorney general objected to “Rule 1,” no doubt recognizing its severe constitutional flaws.
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The court rightly likened Espinoza to Trinity Lutheran, a 2017 Supreme Court decision that held it was unconstitutional for the state of Missouri to deny a taxpayer-funded playground-resurfacing grant to a preschool just because the preschool was run by a Christian church. In Trinity Lutheran, the court reasoned that the First Amendment’s free exercise clause prohibited the denial of a public benefit on the basis of religious status. The same rationale holds true today.
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Writing for the majority in Tuesday’s decision, Justice John Roberts said, “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.”
Espinoza is also a win for parents’ rights and for the First Amendment. The court made it clear that parents have the constitutional right to direct the moral upbringing of their children, and this includes the choice to send their child to a religious school.
But government discrimination against faith-based institutions is not new and is far from over. Even today, in my home state of California, as well as in many other states, government bureaucrats are holding houses of worship to a different standard than secular institutions.
Tuesday’s decision from the Supreme Court is a step forward for the civil rights of millions of Americans.
Shelter-in-place orders routinely treat houses of worship as inferior institutions to places like Costco, marijuana dispensaries, liquor stores and large corporations with political clout.
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Religious gatherings at churches, synagogues, mosques, temples, gurdwaras and other houses of worship are often limited to 25 percent of their buildings’ capacity or 100 people, maximum (in some localities, even fewer). Yet, secular institutions are governed by far less restrictive measures
That is because Gov. Gavin Newsom designated houses of worship as “nonessential,” discounting the profound importance of faith to millions of Americans. And now, Californians are told to brace themselves for an announcement expected Wednesday from Newsom.
Media outlets are already reporting that previously lifted shelter-in-place restrictions are returning, although it is unclear whether these returns will be statewide or limited to specific counties the governor calls “hot spots.”
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Currently, 37 state constitutions contain prohibitions against using public funds for sectarian or religious schools. These bans, known as Blaine Amendments, are an all too common reminder of government hostility toward the faith community. These bans are likely to face increasing, successful challenges in response to the Espinoza decision.
Tuesday’s decision from the Supreme Court is a step forward for the civil rights of millions of Americans. But we have a long way to go still in states and localities that accord second-class status to the First Amendment right to worship freely without government interference.
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