Cline on the Constitution – It was not meant to be a Prison Wall
A Four-Part Series on Religious Liberty
My last post covered the origin of the phrase “Wall of Separation Between Church and State.”
Although the language does not appear in the Constitution, the Supreme Court has sometimes used the metaphor to describe the limitations the First Amendment imposes on Governmental actions that would implicate the establishment of a state approved religion or interfere with an individual’s religious practices. However, the concept of a Wall cannot be used to imprison citizens who practice their faith in their daily lives, in effect Walling them off from full participation in the public square or availing themselves of public benefits available to all. Three cases decided by the Supreme Court this last term upheld that principle.
In the first case, Espinoza v. Montana Department of Revenue, Chief Justice John Roberts penned a 5-4 decision upholding public funding for scholarships to private religious schools.
The State of Montana adopted a school choice program. The program provided for a tax credit for donations to establish scholarships for families of limited financial means or who had children with disabilities. The scholarships could be used at schools of their choice. The Montana State Constitution, however, has a provision which bars government aid to any school “controlled in whole or part by any church, sect, or denomination.” As a consequence, a state agency, the Montana Department of Revenue, issued rules which prohibited families from using the scholarships at religious schools.
Three mothers, including Kendra Espinoza, a single mother who worked three jobs and who wanted to use the scholarships to keep her daughters in an accredited religious school, sued the state on the basis that they were victims of invidious discrimination based upon their religious views and the religious nature of the schools they had chosen. They won at the trial court level. Then on appeal, the Montana Supreme Court, in the legal equivalent of “throwing the baby out with the bathwater,” declared the whole program had to be invalidated because, as written, it violated the State Constitution.
First the historical context. The language in the Montana Constitution forbidding government aide to any school “controlled . . . by any church, sect or denomination” is what is called a Blaine Amendment.
In the mid 19th century, potato blights and other disasters in Ireland and Germany generated an influx of Catholic Immigrants into this county. A Nativist movement developed and a political party, “The Know Nothings,” formed in the 1850s to “decrease the political influence of immigrants and Catholics.” In 1875 the Blaine Amendment, named after Speaker of the House James Blaine, after passing overwhelmingly in the House of Representatives, narrowly failed passage in the Senate by not reaching a 2/3rds threshold. Had it done so, under the Constitution, the amendment would have been submitted for ratification to the States. Though it was defeated in the Congress, the movement was not dead. It was resurrected at the State Level. 37 states still have such amendments in their state constitutions.
What was behind the Blaine Amendments cannot be ignored. Justice Alito’s concurring opinion characterized the Blaine amendments as being “prompted by virulent prejudice against immigrants, particularly Catholic immigrants, by barring any aide to Catholic schools.” Justice Kavanaugh similarly described the amendments as being “rooted in grotesque religious bigotry against Catholics.”
The Supreme Court’s ruling in the Espinoza case overturned the Montana Blaine Amendment. And in doing so, it reinforced the principle that the “Wall of Separation” between the State and Religion cannot be an excuse to discriminate against religious practices.
Chief Justice Roberts wrote, the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” One of the case precedents he relied on was the Trinity Lutheran case decided in 2017. That case overturned a Missouri law barring religious schools from a state program to make playground equipment safer even though Missouri Law called for a “strict separation of church and state.” Chief Justice Roberts wrote in that opinion, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”
The Justices in the Espinoza case consistently use language which upholds the principle that the Wall cannot be used to imprison citizens from participation in public life nor Wall them off from the benefits of public participation.
Chief Justice Roberts wrote:
“The Free Exercise Clause protects against laws that “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.”
A law must not “condition the availability of benefits upon a recipient’s willingness to surrender its religiously impelled status.” The Montana law, he asserted, is an example of “indirect coercion” which is prohibited by the Constitution because it requires that “a school must divorce itself from any religious control or affiliation. Placing such a condition on benefits or privileges inevitably deters or discourages the exercise of First Amendment rights.”
Justice Alito in turn explained:
Today’s public schools are not widely accepted as providing the most appropriate education. He wrote, “Many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling.” He went on the explain the obvious. That the state was only too willing to take people’s “taxes to support public schools but who disagree with the teaching there.”
The scholarship program from which the parents were being excluded “helped parents of modest means do what more affluent parents can do: send their children to a school of their choice.”
He also disputed the contention that the First Amendment only protects the “status” of believers and not their “actions.” He reiterated that The First Amendment has a guarantee. “The guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”
Referring back to the Framers of the Constitution, he pointed out they rejected a “right of conscience” in favor of the “Free Exercise” clause in the belief that our Constitution “extended the broader freedom of action to all believers.”
And, he warned the danger can be subtle. He explained the nefarious effect of apparently benign governmental action. “The action does not put a gun to the head, only a thumb on the scale. But the Free Exercise Clause doesn’t easily tolerate either; any discrimination against religious exercise must meet the demands of strict scrutiny.”
“In this way,” he went on, “the Clause seeks to ensure that religion remains a matter of voluntary choice by individuals and their associations where each sect flourishes according to the zeal of its adherents and the appeal of its dogma, influenced by neither where the government points its gun nor where it places its thumb.”
And the thumb on the scale cannot be the denial of public benefits which are made available to other citizens.
The Justice wrote, “The government tests the Free Exercise Clause whenever it conditions receipt of an important benefit upon conduct proscribed by a religious faith or denies such a benefit because of conduct mandate by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.”
He described the ultimate result of the danger.
“Often governments lack effective was to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.”
“If the government could intrude so much in matters of faith, too, winners and losers would soon emerge.” The apathetic would win “but what of those with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth, like knocking on doors to spread their beliefs, refusing to build tanks during wartime or teaching their children at home? Those who take their religious seriously, who think that their religion should affect the whole of their lives and those whose religious beliefs and practices are least popular would face the greatest disabilities.”
“A right meant to protect minorities instead could become a cudgel to ensure conformity.”
Next up: Whether Religious Schools can manage their personnel without running afoul of state and federal employment discrimination claims.
For more writings by Phil Cline, visit philcline.com