A Silver Anniversary

Adam Shelton · July 7, 2020

A Good Week for the Free Exercise Clause

Can the government exclude a religious group from a government aid program simply because the group is religious? Twenty-five years ago, in Rosenberger v. University of Virginia, the Supreme Court said no. And just last week, the Supreme Court reaffirmed that principle in Espinoza v. Montana, the day after the 25th anniversary of the Rosenberger decision.

In Rosenberger, the Supreme Court considered a University of Virginia program which paid “outside contractors for the printing costs of a variety of student publications.” But it excluded student publications that promoted religion or engaged in lobbying. Wide Awake Publications (WAP) was a student group that published a Christian magazine. Its publication prompted students to live a Christian life and follow Jesus. Thus, it was ineligible to have its printing costs covered.

WAP argued that this policy amounted to viewpoint discrimination and violated the First Amendment’s Free Speech Clause. That is, it argued that the program singled out the speech of promoting religion rather than discussions of religion itself. The program would pay for the printing of publications that spoke about religion in an abstract way, or in the context of history or philosophy. It was the promotion of religion that made a publication ineligible for the aid program.

UVA argued that there was no viewpoint discrimination as the policy prohibited all religious promotion. The distinction turned on subject matter, not viewpoint, or so the argument went. In the alternative UVA argued the Establishment Clause prohibited any government money from flowing to religious organizations and messages. The dissent agreed with both of the university’s arguments.

But the university was not so lucky with the majority. The Court held that the policy was in fact viewpoint discrimination. It explained that the program did not prohibit the discussion of religion in the context of other subjects, like philosophy or history. Instead, it prohibited certain messages about religion or a deity. That is, it wasn’t that any discussion of religion rendered a publication ineligible, but only the promotion of religion. Thus, the policy prohibited certain viewpoints.

The Court also concluded that the Establishment Clause did not help the university. The Court explained that the Clause did not require the university to render student publications that promoted religion ineligible for the aid. The majority affirmed that the Establishment Clause only requires neutrality towards religion. But what UVA was showing through the aid limitation was hostility—not neutrality.

The Supreme Court released this opinion 25 years ago last week. Yet litigation over the central idea of government funds in a neutral program going to religious organizations has persisted.

This has been true not only under the Free Speech Clause, but under the First Amendment’s Free Exercise Clause as well. Just three years ago the Supreme Court decided Trinity Lutheran v. Comer. There, the Court held Missouri could not exclude a church-run daycare from its grant program for playground resurfacing. The Court explained that the exclusion violated the Free Exercise Clause. And the Court rejected the argument that the Establishment Clause required the discrimination.

The Supreme Court reaffirmed that principle once again this past week in Espinoza v. Montana—an IJ case. There, the Court considered Montana’s tax-credit scholarship program. This program allowed Montanans to receive a tax credit when they donated to organizations that provided scholarships to children. Children and their parents could use these scholarships to attend any private school in Montana—including religious ones.

Unfortunately, the Montana Department of Revenue believed this program violated the state’s Constitution. This Constitution has a Blaine Amendment, which prohibits public aid from flowing to religious organizations, including schools. So the Department adopted a rule which prohibited the funds from being used at a private religious school. Thus, parents were prevented from choosing private religious schools through the program. But they could still use the funds at private non-religious schools.

In other words, this new rule discriminated against religious schools simply because they were religious. It favored private schools over others due solely to their non-religious character.

Fortunately, the Supreme Court disagreed with the Montana Department of Revenue. It held that applying the Blaine Amendment here violated the Free Exercise Clause, as its application discriminated against religious schools and families. The Supreme Court reaffirmed the position that the government is prohibited from actively discriminating against religion.

This case did not explicitly deal with the Establishment Clause. But Justice Thomas penned a concurrence in which he explained that the Court’s misguided interpretation of the Establishment Clause limits free exercise even when it is not directly relevant to the case.

Espinoza is the latest case in which the Court has reaffirmed that the government cannot discriminate against religion in a neutral government program. It’s a sign of how protective our Constitution is that the Court has done that in the context of free speech—as in Rosenberger—and free exercise as well—as in Espinoza and Trinity Lutheran. Last week we celebrated the 25th anniversary of Rosenberger, and now we get to celebrate Espinoza the day after as well!


Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.