Mark Silk on the Supreme Court Expanding the Scope of Religious Free Exercise

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

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college’s Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service


You could see this one coming. In a closely watched case handed down Tuesday, the Supreme Court took another step in expanding the scope of religious free exercise in America.

The case, Espinosa 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 saying that the scholarships had to be used in non-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. Davy (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 Espinosa 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)?”

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Source: Religion News Service