The Supreme Court has long interpreted the Establishment Clause as requiring “governmental neutrality between religion and religion, and between religion and nonreligion.” However, this impartiality has often proved elusive when courts evaluate legal burdens on religiously motivated activity.

In 2004, the Court in Locke v. Davey, referencing a long history of state constitutional prohibitions against tax dollars being used to support clergy, upheld a state scholarship program that excluded devotional theological degrees. This ruling gave rise to the status/use distinction: While government cannot withhold publicly available funding from an individual or organization just because of their religious status, it can prohibit such funds from being put to a religious use.

This principle has appeared with increasing regularity in cases that involve government funding programs related to education. For example, in Espinoza, a Montana state constitutional provision prevented students from using funds from a state scholarship program at any sectarian or religiously-affiliated school. Writing for the majority, Chief Justice Roberts distinguished Locke by arguing that the restriction discriminated not against a specific religious use of state funds, but against schools and students based on their religious identity. Thus, he said, families were unconstitutionally cut off “from otherwise available benefits if they choose a religious private school rather than a secular one.”

However, Justice Gorsuch, in his Espinoza concurrence, expressed skepticism of this distinction. He reasoned, “[t]he right to be religious without the right to do religious things would hardly amount to a right at all.” This echoed his partial concurrence in Trinity Lutheran: “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use).”

The dubious distinction between internal religious identity and outward religious expression has also been present in Free Exercise jurisprudence. The Supreme Court’s decisions in Smith and its progeny rest on the premise that religious action, but not religious belief, may constitutionally be burdened by a neutral law of general applicability, which does not have to satisfy strict scrutiny. However, perhaps sensing the difficulty of separating action from belief, the Court has increasingly recognized circumstances that fall outside the Smith rule, such as the categorical ministerial exception doctrine.

The Court will soon have an opportunity to revisit the distinction between religious status and use in Carson v. Makin, which centers on a Maine prohibition against students using tuition assistance funds at schools providing religious educational instruction. The state asserts that it is constitutionally permissible to exclude schools from generally available government benefits based on what they teach, rather than their religious affiliation or status. Petitioners respond that even such a use-based restriction unconstitutionally forces both religious schools and individuals of faith to choose between living out their beliefs and receiving otherwise generally available government benefits.

According to some amici, this case highlights how the status/use distinction can encourage discrimination against religious organizations. As an alternative, one amicus brief suggests a historically informed six-prong analysis for evaluating Establishment Clause concerns when government provides funds to religious entities. Using this test, the brief concludes that public funding of religious schools should not be considered an “establishment of religion,” as understood by the founders, and that Locke need not apply as “there is no historical state interest in disqualifying all religious schools from public funding.”

Government discrimination against religious uses in educational funding programs can provide a financial incentive for schools to cease or limit their religious activities. As Justice Scalia said in his Locke dissent, “[w]hen the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured.” Thus, moving beyond the status/use distinction and granting religious schools, parents, and children equal access to public programs and benefits could be an important step towards increased government neutrality between religious and secular activity.

As the Court progresses towards a final decision in Carson over the coming months, it will be confronted by a question that has often provoked legal, philosophical, and even theological debate: Can the government constitutionally distinguish inward religious identity or belief from outward religious actions? In other words, for purposes of extending government benefits, can faith exist separately from its physical manifestation in religious works? The Justices’ answer will have far-reaching implications not only for government funding programs, but for the First Amendment as a whole. 

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.