Jurisprudence

John Roberts Just Bulldozed the Wall Separating Church and State

His stunning 5–4 decision forces states to fund religious schools—and augurs even more radical rulings down the road.

John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh seated in the Capitol
Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh attend the State of the Union address on Feb. 5, 2019. Pool/Getty Images

On Tuesday, in a sweeping 5–4 decision, the Supreme Court forced a majority of states to fund private religious schools in a ruling that compels millions of U.S. taxpayers to subsidize Christian education—even if financing another religion violates their own beliefs. Incredibly, this maximalist decision did not go far enough for two conservative justices who would apparently let states establish an official religion. In dissent, Justice Sonia Sotomayor described the majority’s decision as “perverse.” That may be an understatement: Its decision is the culmination of a yearslong assault on secular governance and augurs even more radical rulings down the road.

The basis for Tuesday’s decision in Espinoza v. Montana originated in a creative scheme devised by the Montana Legislature to fund sectarian schools. The Montana Constitution contains a “no-aid” provision that bars the state from providing public funds to religious institutions, as do 37 other state constitutions. To work around this rule, the Legislature granted tax credits to residents who donate money to Big Sky Scholarships, which pays for students to attend private schools, both secular and sectarian. (Montana’s demographics ensure that the only sectarian schools that participate are Christian.) In other words, residents get money from the state when they help children obtain a private education, including religious indoctrination. In 2018, the Montana Supreme Court found that this program violated the state constitution’s no-aid clause. But instead of excluding sectarian schools, the court struck down the whole scheme for all private education.

Chief Justice John Roberts revived Montana’s tax credit scheme on Monday in a convoluted opinion that announces a startling new constitutional principle: Once a state funds private education, “it cannot disqualify some private schools solely because they are religious.” Twenty-nine states, the District of Columbia, and Puerto Rico all provide tax credits or vouchers to families that send their children to private schools. Under Espinoza, they must now extend these programs to private religious schools.

The upshot: Taxpayers in most of the country will soon start funding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience. For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest. But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs? In short, too bad: Your rights just don’t matter as much. This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law “respecting an establishment of religion.” Just 18 years ago in Zelman v. Simmons-Harris, a bare majority of the Supreme Court ruled that, under the establishment clause, states were allowed to fund private schools through vouchers or tax credits, over vigorous dissents from the four liberal justices. Now the court has declared that, under the free exercise clause, most states are compelled to fund private religious schools. The conservative majority has revolutionized church-state law in record time.

How did the court chart this catastrophic course? The barrier between church and state took a hit when five justices permitted state financing of sectarian schools in Zelman. It nearly collapsed when the court expanded religious institutions’ access to taxpayer money in 2017’s Trinity Lutheran v. Comer, which held that states cannot deny public benefits to religious institutions because they are religious. The court claimed to find this dangerous rule in the First Amendment’s free exercise clause—even though, as Sotomayor pointed out in her searing dissent, separating church and state does not limit anyone’s ability to exercise their religion. She closed with a warning: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.”

Tomorrow has arrived, and it is as absurd as Sotomayor predicted. Roberts’ majority opinion follows Trinity Lutheran to its logical, outrageous conclusion: A state violates free exercise, the chief justice wrote, when it “discriminate[s] against schools” based on “the religious character of the school.” The government, Roberts explained, has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers’ right not to fund religious exercise that infringes upon their own beliefs. “We do not see how the no-aid provision promotes religious freedom,” the chief justice wrote tersely.

Perhaps Roberts can’t see it, but James Madison certainly could. As Justice Stephen Breyer wrote in dissent, Madison famously opposed a Virginia bill that would have taxed residents to support teachers of “the Christian Religion,” condemning it as “a signal of persecution” that violates religious liberty. Montana’s Christians-schools-only program illustrates how states that fund religion wind up funding the faith shared by a majority of residents. Breyer, quoting Madison, noted that state funding of a particular religion may “destroy that moderation and harmony” among different faiths that is a hallmark of America’s religious tolerance.

This extreme outcome was not enough for Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. Thomas, joined by Gorsuch, asserted that the very concept of separating church and state “communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion.” According to Thomas, enforcing church-state separation amounts to “religious hostility” and must end immediately. The justice reached this conclusion by reiterating his conviction that the First Amendment’s establishment clause was “likely” designed to preserve states’ ability to establish official religions.

In his own separate opinion, Alito attacked the “no-aid” clauses in 38 state constitutions, including Montana’s. He claimed that these provisions were motivated by anti-Catholic animus, and it is true that nativists supported them in the 19th century. But Alito omitted the fact that advocates for universal education also encouraged these provisions for perfectly legitimate reasons before nativists rallied around them. And he waved away the fact that Montana readopted its no-aid clause in 1972 for the express purpose of shielding religion from state entanglement. Alito will not let inconvenient facts stand in the way of his campaign to invalidate 38 states’ constitutional guarantees against state subsidization of religion.

If there is any silver lining to Roberts’ opinion, it is that he did not adopt Thomas’, Gorsuch’s, or Alito’s radical positions. At least, not yet. The only limiting principle Roberts lays out is that states “need not subsidize private education” in the first place—so, in theory, states can abolish public funding of private schools entirely to avoid funding religious ones. But that’s what the Montana Supreme Court did here, yet Roberts condemned its decision as “discrimination against religious schools.” If a legislature tries to end a voucher program in light of Espinoza, the Supreme Court’s conservatives could easily find more proof of anti-religious “discrimination” and force it to revive the program. Having gutted protections against the establishment of religion, the majority is limited only by its own sense of what it can get away with.

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