The Status of Use-Based Exclusions & Educational Choice After Espinoza

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The U.S. Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue[1] marks a watershed in America’s educational choice movement. Since the Court’s 2002 decision in Zelman v. Simmons-Harris,[2] it had been clear that educational choice programs—programs that empower parents to opt their children out of public schools and choose private, including religious, alternatives[3]—are perfectly permissible under the U.S. Constitution.[4] In the wake of Zelman, however, opponents of educational choice retrained their legal focus to state constitutions. Even if such programs are permissible under the federal Constitution, opponents insisted, they still contravene the “Blaine Amendments” (also known as “no-aid” provisions) that are found in a large majority of state constitutions and that, generally speaking, prohibit public funding of religious schools.[5]

In Espinoza, the Court shut down this line of attack, holding that the application of Montana’s Blaine Amendment to bar religious schools from an educational choice program, solely because of the schools’ religious status, violated the Free Exercise Clause of the U.S. Constitution.[6] In many ways, it was the bookend to Zelman: whereas Zelman had held that the Establishment Clause allows states to include religious schools in educational choice programs, Espinoza held that the Free Exercise Clause prohibits states from excluding them simply because of their religious character.

Espinoza was a tremendous victory for families who want to be able to choose the schools their children attend, and the opinion undoubtedly will lead to the adoption of new educational choice programs throughout the country.[7] But it was by no means the final legal battle over educational choice in the United States. Opponents of educational choice are a determined—and powerful[8]—lot, and they will continue mounting challenges, both legal and political, in America’s courthouses and statehouses.

The next battles will likely turn on the religious uses to which educational choice programs may be put. While Espinoza held that religious schools may not be excluded from such programs simply because they are religious, it left open the possibility that certain religious uses of the scholarships provided by the programs may be barred. Working within the framework of Trinity Lutheran Church of Columbia, Inc. v. Comer,[9] in which it drew a distinction between discrimination based on religious status and discrimination based on religious use, the Court cabined Montana’s exclusion to the former category.[10] It held that Montana’s Blaine Amendment barred religious schools solely because of who they were—not because of any religious uses to which scholarships might be put—and that such religious status discrimination is plainly unconstitutional under Trinity Lutheran.[11] The Court thus did not resolve whether a state may, consistent with the Free Exercise Clause, prohibit the aid provided by an educational choice program from being used to procure a religious education. In the hours after the decision was released, commentators flagged this issue as one the Court left open—and one that might be the next legal line of attack against educational choice.[12]

While Espinoza left the question open, however, it points emphatically to an answer. Four aspects of the opinion indicate that the Court is prepared to either abandon the status/use distinction or apply a presumption of unconstitutionality to use-based exclusions similar to that which it applies to status-based exclusions. Either way, it seems likely that educational choice opponents will lose this next battle and that families who want alternatives to the public school system will win.

This article begins by providing a brief overview of the educational choice program at issue in Espinoza, followed by a discussion of the state court litigation that culminated in a Montana Supreme Court judgment invalidating the program under the state’s Blaine Amendment. It then considers the U.S. Supreme Court’s decision reversing that judgment, examining the majority opinion in detail and briefly surveying the three concurring and three dissenting opinions. Next, it considers some of the legal questions concerning educational choice programs that Espinoza did not resolve, including the question of whether religious use-based exclusions are constitutionally permissible in the educational choice context. Finally, the article highlights four facets of the Espinoza opinion that bear on the resolution of that question and that suggest the Court will ultimately hold such exclusions unconstitutional.

I. Montana’s Tax Credit Scholarship Program

Espinoza concerned a modest tax credit scholarship program that the Montana legislature adopted in 2015 “to provide parental and student choice in education.”[13] The program afforded Montana taxpayers a dollar-for-dollar, non-refundable tax credit, up to a maximum of $150, for contributions they make to participating student scholarship organizations (“SSOs”).[14] The SSOs, in turn, used these private contributions to provide scholarships to Montana schoolchildren, who could use the scholarships to attend the private school—religious or non-religious—of their parents’ choice.[15]

Shortly after the legislature adopted the program, the Montana Department of Revenue (“Department”) promulgated a rule excluding religious schools from the program. Specifically, the rule provided that a “qualified education provider” (the operative statutory term describing a participating school) “may not be . . . owned or controlled in whole or in part by any church, religious sect, or denomination.”[16] According to the Department, the rule was necessitated by Article X, section 6(1) of the Montana Constitution, which provides in relevant part:

The legislature . . . shall not make any direct or indirect appropriation or payment from any public fund or monies . . . for any sectarian purpose or to aid any . . . school . . .
controlled in whole or in part by any church, sect, or denomination.[17]

This provision is commonly referred to as a Blaine Amendment[18] or no-aid provision, and similar provisions are found in a large majority of state constitutions.[19]

The Department’s rule eviscerated the program. The legislature, after all, had intended the program to be religiously neutral, offering religious and non-religious options alike, thus maximizing parental choice. But the Department jettisoned all religious schools, leaving participating families with secular private options only.

II. State Court Proceedings

In December 2015, three mothers with children eligible for the scholarship program challenged the Department’s rule in state court.[20] They asserted that by excluding religious options from the program, the Department’s rule, among other things: (1) exceeded the Department’s authority, as it conflicted with the statute that it purported to implement;[21] and (2) contravened the Free Exercise Clause of the U.S. Constitution, because it discriminated against families who desire a religious school for their children.[22]

After preliminarily enjoining the Department’s rule,[23] the state trial court granted summary judgment in favor of the mothers.[24] It concluded that the Department’s justification for the rule—avoiding appropriations or expenditures of public funds for religious schools—was based on a mistake of law.[25] “Non-refundable tax credits,” the court held, “simply do not involve the expenditure of money that the state has in its treasury; they concern money that is not in the treasury and not subject to expenditure.”[26] Having concluded that the rule was based on a mistake of law, “the Court decline[d] to address the constitutionality of the Rule.”[27]

The Department appealed, and the Montana Supreme Court, on December 12, 2018, reversed the trial court’s judgment.[28] The Montana Supreme Court agreed with the trial court that the Department’s rule conflicted with the statute and thus exceeded the Department’s rulemaking authority.[29] However, it disagreed with the trial court’s holding that Montana’s Blaine Amendment was not implicated by a program funded by private, tax credit incentivized donations rather than public money.

“The Tax Credit Program,” the Montana Supreme Court held, “permits the Legislature to indirectly pay tuition at private, religiously-affiliated schools,”[30] and “[w]hen the Legislature indirectly pays general tuition payments at sectarian schools, the Legislature effectively subsidizes the sectarian school’s educational program.”[31] “That type of government subsidy in aid of sectarian schools is precisely what the Delegates intended Article X, Section 6, to prohibit,” the court added,[32] and the scholarship program therefore “cannot . . . be construed as consistent with Article X, Section 6.”[33] In this light, the court invalidated the program in its entirety—even as to non-religious private schools—because there was “simply no mechanism within the Tax Credit Program itself that operate[d] to ensure” that funds would not be used at religious schools.[34]

Finally, the Montana Supreme Court held that its invalidation of the scholarship program because of its inclusion of religious options did not discriminate against religion in contravention of the federal Constitution, as the plaintiffs had contended. While the court recognized that “an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns,” and that “there may be a case . . . where prohibiting . . . aid” under that provision “would violate the Free Exercise Clause,” the court concluded that “this is not one of those cases.”[35]

III. SCOTUS Steps In

It turns out this was one of those cases. The plaintiffs petitioned the U.S. Supreme Court for certiorari on the federal question presented by the Montana Supreme Court’s judgment:

Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?[36]

The Court granted certiorari[37] and, on June 30, 2020, answered that question in the affirmative. In an opinion authored by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, the Court held that the Montana Supreme Court’s application of the state’s Blaine Amendment to invalidate the scholarship program violated the federal Free Exercise Clause.[38]

The Court began its analysis by noting that the Montana legislature’s decision to include religious options in the program was perfectly permissible under the federal Constitution. Citing its 2002 decision in Zelman v. Simmons-Harris,[39] which upheld a voucher program against an Establishment Clause challenge, the Court stressed that the Montana program was originally “neutral” toward religion (meaning religious and non-religious schools alike were allowed to participate) and operated on private choice (meaning money “ma[de] its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools”).[40] Nevertheless, the Montana Supreme Court had “held as a matter of state law that even such indirect government support qualified as ‘aid’ prohibited under the Montana Constitution.”[41] That conclusion, in turn, gave rise to the federal constitutional question the U.S. Supreme Court was tasked with resolving: “[W]hether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from the scholarship program.”[42]

A. The Jurisprudential Set-Up: Locke and Trinity Lutheran

The answer to that question would turn on the interaction of two U.S. Supreme Court precedents: Locke v. Davey[43] and Trinity Lutheran Church of Columbia, Inc. v. Comer.[44] Whereas Locke upheld a religious exclusion from a state public benefit program, Trinity Lutheran invalidated one. The resolution of Espinoza would come down to which of these two cases the Court found more analogous to Montana’s bar on religious options.

In Locke, Washington had relied on its state constitution to exclude “devotional theology” majors[45]—that is, students pursuing a degree in “religious instruction that will prepare [them] for the ministry”[46]—from a publicly funded, postsecondary scholarship program. The Supreme Court held that this exclusion did not violate the federal Free Exercise Clause. The scholarship program, the Court noted, went “a long way toward including religion in its benefits,” allowing students to “attend pervasively religious schools” and even “take devotional theology courses.”[47] The only thing scholarship recipients could not do was pursue a degree in devotional theology, and states, according to the Court, had a “historic and substantial state interest”[48] in “not funding the religious training of clergy.”[49] As the Court noted, “[m]ost States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry,”[50] and this history justified the state in “deal[ing] differently with religious education for the ministry.”[51]

The other precedent that the Court had to confront in Espinoza was Trinity Lutheran. There, the Court had held that Missouri violated the Free Exercise Clause when it relied on its Blaine Amendment to exclude a church-run preschool from a publicly funded playground resurfacing program solely because of the church’s religious status.[52] “The Free Exercise Clause,” the Court held in that case, “‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’”[53] The Court distinguished its earlier decision in Locke by noting that the plaintiff in that case “was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”[54] The church in Trinity Lutheran, by contrast, was being denied a playground resurfacing grant “simply because of what it is—a church.”[55] Compliance with Missouri’s Blaine Amendment could not justify such discrimination based on religious status, or identity,[56] and the Court thus concluded that “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 . . . and cannot stand.”[57]

B. Status Discrimination, Trinity Lutheran-Style

As noted above, the resolution of Espinoza would turn on the Court’s reconciliation of Locke and Trinity Lutheran in the specific context of an educational choice program. Was barring religious schools from an elementary and secondary scholarship program more akin to excluding a church-run preschool from a playground resurfacing grant program or to excluding a devotional theology major from a postsecondary scholarship program? Put differently, by barring religious schools, did the Montana Supreme Court impermissibly discriminate based on the religious status of schools and the families who choose them, or did it merely prohibit scholarships from being put to a particular religious use—namely, procuring an essentially religious education?

According to Chief Justice Roberts and the majority opinion, the proper resolution of Espinoza was a straightforward application of Trinity Lutheran: the Montana’s Supreme Court’s judgment unquestionably discriminated based on the religious status of schools. As in Trinity Lutheran, the Court held, Montana’s Blaine Amendment: (1) “bars religious schools from public benefits solely because of the religious character of the schools”; and (2) “bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”[58] “This is apparent,” the Court noted, from “the plain text” of the provision, which “bars aid to any school ‘controlled in whole or in part by any church, sect, or denomination,’”[59] as well as the Montana Supreme Court’s opinion, which “explained that the provision forbids aid to any school that is ‘sectarian,’ ‘religiously affiliated,’ or ‘controlled in whole or in part by churches.’”[60] Thus, schools were “plainly exclude[d] . . . from government aid solely because of religious status,” in violation of Trinity Lutheran.[61] 

Of course, the Department had attempted to fit the case into the category of discrimination based on religious use, rather than status, by arguing that Montana’s Blaine Amendment “applies not because of the religious character of the recipients, but because of how the funds would be used—for ‘religious education.’”[62] In support of its contention, the Department had “point[ed] to some language” in the Montana Supreme Court’s decision “indicating that the no-aid provision has the goal or effect of ensuring that government aid does not end up being used for ‘sectarian education’ or ‘religious education.’”[63] Relatedly, the Department had made much of the nature of the aid in question, arguing that unlike the “‘completely non-religious’ benefit of playground resurfacing in Trinity Lutheran,”[64] the “unrestricted tuition aid at issue” in Espinoza “could be used for religious ends by some recipients, particularly schools that believe faith should ‘permeate[]’ everything they do.”[65] But the Court roundly rejected the Department’s attempt to place the case in the use discrimination box, holding that “those considerations were not the Montana Supreme Court’s basis for applying the no-aid provision to exclude religious schools; that hinged solely on religious status.”[66] And the Court went on to stress that even if the Montana Department of Revenue or Montana Supreme Court had aimed to prevent religious uses of scholarship monies, the application of the Blaine Amendment still turned on the religious status of the schools that parents selected.[67]

While the Court concluded that the Montana Supreme Court’s application of the state’s Blaine Amendment turned on religious status, rather than use, it went out of its way to make clear that it was not suggesting the outcome would have been different if discrimination based on use had been in play. “None of this is meant to suggest,” the Court stated, “that we agree with the Department that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.”[68] In fact, pointing to Justice Gorsuch’s concurring opinion in Trinity Lutheran, the Court stressed that some of its members “have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status.”[69] But while it “acknowledge[d] the point,” the Court determined that it did not “need [to] examine it” in Espinoza, “because Montana’s no-aid provision discriminates based on religious status,” and “strict scrutiny [therefore] applie[d] under Trinity Lutheran.”[70]

C. No Refuge in Locke

As for Locke, the Court explained that it “differ[ed] from” Espinoza “in two critical ways.”[71] First, Locke involved an extremely narrow exclusion that focused on the use to which a scholarship was put—not the status of the school at which it was used. As the Court explained, “Washington had ‘merely chosen not to fund a distinct category of instruction’: the ‘essentially religious endeavor’ of training a minister ‘to lead a congregation.’”[72] The plaintiff was thus “denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”[73] Montana’s Blaine Amendment, by contrast, “does not zero in on any particular ‘essentially religious’ course of instruction,” but rather “bars all aid to a religious school ‘simply because of what it is.’”[74]

Moreover, the narrow, use-based exclusion in Locke was supported by a “‘historic and substantial’ state interest”—namely, in “not funding the training of clergy.”[75] Montana, on the other hand, had no comparable interest in denying scholarships to children attending religious schools.[76] In fact, the Court noted that governments often provided “financial support to private schools, including denominational ones,” during the founding era and early 19th century.[77] Thus, Montana’s hostility to religious schools was not a substantial, founding-era tradition. Rather, this “tradition against state support for religious schools arose in the second half of the 19th century,” resulting in the adoption of state constitutional provisions akin to Montana’s in “more than 30 States.”[78] Many of these provisions, the Court emphasized, “belong to a more checkered tradition shared with the Blaine Amendment of the 1870s”[79]—a provision “born of bigotry” that “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general.”[80] Such provisions, the Court held, “hardly evince a tradition that should inform our understanding of the Free Exercise Clause.”[81]

D. Failing Strict Scrutiny

Having concluded that the Montana Supreme Court’s application of its Blaine Amendment discriminated based on religious status—not use, as in Locke—the Court, in accordance with Trinity Lutheran, applied strict scrutiny, which, it concluded, was not satisfied.[82] The Court addressed three asserted state interests, none of which rose to the level of compelling.

First, the Court rejected the Montana Supreme Court’s claim that the state’s interest in “separating church and State ‘more fiercely’ than the Federal Constitution” justified its application of the Blaine Amendment.[83] In fact, the Court had already concluded, in Trinity Lutheran[84] and Widmar v. Vincent[85] before it, that such an interest is not compelling, because “[a] State’s interest ‘in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.’”[86]

Second, the Court rejected the Department’s claim that application of the Blaine Amendment to invalidate the scholarship program served the compelling interest of “promot[ing] religious freedom.”[87] Specifically, the Department had maintained that the state constitutional provision: (1) “protect[ed] the religious liberty of taxpayers by ensuring that their taxes are not directed to religious organizations”; and (2) “safeguard[ed] the freedom of religious organizations by keeping the government out of their operations.”[88] But as the Supreme Court retorted, “[a]n infringement of First Amendment rights . . . cannot be justified by a State’s alternative view that the infringement advances religious liberty.”[89] As for protecting religious organizations from governmental entanglement, the Court noted that a school’s participation in the scholarship program was entirely voluntary and thus that a school concerned about such entanglement could simply “decide for itself not to participate.”[90] The Court, moreover, emphasized the fact that it was not simply religious schools (or organizations) that were impacted by Montana’s Blaine Amendment; parents who would choose religious schools for their children were equally impacted,[91] and these parents have a fundamental right to direct the upbringing and education of their children, including by selecting a religious school for them.[92] Montana’s Blaine Amendment, the Court stressed, “penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one.”[93]

Finally, the Court rejected the Department’s assertion that the Blaine Amendment served to protect Montana’s public schools by preventing the diversion of money intended for them to private schools.[94] As the Court explained, the state’s Blaine Amendment is “fatally underinclusive” to serve any such interest, because it prohibits public funding of religious schools only—not all private schools.[95]

In short, none of the allegedly compelling interests identified by the Department or the Montana Supreme Court could support applying Montana’s Blaine Amendment to bar religious schools from an educational choice program. While the Court made clear that a state is not required to have such a program, “once [it] decides to do so, it cannot disqualify some private schools solely because they are religious.”[96]

E. Rejecting the “No Program, Nobody Gets Hurt” Argument

Before concluding its opinion, the Court disposed of a final argument asserted by the Department: that there could be no religious status discrimination (and thus no free exercise violation) because the Montana Supreme Court had invalidated the scholarship program in its entirety—not with respect to religious private schools only.[97] While that court did eliminate the program in its entirety, the U.S. Supreme Court noted, it did so “not based on some innocuous principle of state law,” but rather “pursuant to a state law provision that expressly discriminates on the basis of religious status.”[98] The Montana Supreme Court applied this state constitutional provision to bar religious schools from the program and only proceeded to invalidate the program in its entirety because the program contained no “‘mechanism’ to make absolutely sure that religious schools received no aid.”[99] The “error of federal law occurred at the beginning”: “When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation.”[100]

F. (Lots of) Concurring Opinions

Although Chief Justice Roberts’ majority opinion was joined in full by four other Justices (Thomas, Alito, Gorsuch, and Kavanaugh), three of those four authored separate concurring opinions. Each concurrence focused on a distinct aspect of the case.

Justice Thomas, in an opinion joined by Justice Gorsuch, explained how, in his view, it is the Court’s misguided Establishment Clause jurisprudence that has allowed Free Exercise Clause violations like those suffered by the Espinoza plaintiffs to proliferate.[101] In Justice Thomas’s (and Gorsuch’s) opinion, the Court’s Establishment Clause jurisprudence has taken two misguided turns: (1) the Court’s incorporation of the clause against the states contravenes the original meaning of the clause (and likely that of the Fourteenth Amendment, through which the clause was incorporated);[102] and, in any event, (2) interpreting the clause to preclude government’s favoring or promotion of religion—as Justice Thomas calls it, the “separationist view”[103]—contravenes the original understanding of the clause.[104] “[T]he Court’s wayward approach to the Establishment Clause”—that is, its “overly expansive understanding of the . . . Clause”—“has led to a correspondingly cramped interpretation of” the Free Exercise Clause.[105] Thus, “[r]eturning the Establishment Clause to its proper scope,” in Justice Thomas’s view, “will go a long way toward allowing free exercise of religion to flourish as the Framers intended.”[106]

Justice Alito, meanwhile, focused on the nativist, anti-Catholic bigotry that undergirded the Blaine movement of the mid- to late-19th century and that inspired state constitutional provisions like Montana’s. Consideration of this history, according to Justice Alito, was required by the Court’s recent decision in Ramos v. Louisiana,[107] in which the Court confronted the bigoted origins of a Louisiana state constitutional provision that allowed for less-than-unanimous jury convictions.[108] Justice Alito’s concurrence provides a compelling historical account of how provisions like Montana’s came to be and, in an unusual turn for a judicial opinion, includes a reproduction of a political cartoon: the infamous Thomas Nast depiction of the supposed Catholic threat to the public school system, which appeared in Harper’s Weekly in 1871.[109]

Finally, Justice Gorsuch authored a concurring opinion that further developed a point he had made in his Trinity Lutheran concurrence, discussed above in note 55 and the text accompanying note 69: that the supposed distinction between discrimination based on religious status and discrimination based on religious use is illusory, unworkable, and ultimately irrelevant in Free Exercise Clause jurisprudence.[110] First, Justice Gorsuch stressed that the record demonstrated how Montana’s Blaine Amendment did discriminate based on “religious activity, uses, and conduct.”[111] “Maybe it’s possible to describe what happened here as status-based discrimination,” Justice Gorsuch opined, “[b]ut it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion.”[112] At the end of the day, however, it did not matter to Justice Gorsuch how the discrimination was described, because “it is not as if the First Amendment cares.”[113] “The Constitution,” he explained, “forbids laws that prohibit the free exercise of religion,” and “[t]hat 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.”[114] Justice Gorsuch supported his point with discussion of the original public meaning of the term “exercise,”[115] as well as the Court’s own jurisprudence, which has long protected religious “actions” and “conduct.”[116]

Justice Gorsuch also discussed the practical reason the First Amendment protects religious uses:

Often, governments lack effective ways 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.[117]

Under such a rule of law, Justice Gorsuch noted, “[t]hose apathetic about religion or passive in its practice would suffer little,” but “those with a deep faith that requires them to do things [that] passing legislative majorities might find unseemly or uncouth” would suffer greatly.[118] And while the stakes may not be quite so great when it comes to discrimination in public benefits—a context in which “[t]he government does not put a gun to the head, [but] only a thumb on the scale”[119]—it is discrimination nonetheless. According to Justice Gorsuch, “[c]alling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.”[120]

G. (Lots of) Dissenting Opinions

There were also three dissenting opinions. Justice Ruth Bader Ginsburg, joined by Justice Elena Kagan, did not see a free exercise violation in the application of Montana’s Blaine Amendment. In her view, the case was “missing th[e] essential component” of “differential treatment based on . . . religion,” because the Montana Supreme Court had invalidated the scholarship “in its entirety,” thereby rendering “secular and sectarian schools alike . . . . ineligible for benefits.”[121] Thus, “[t]he only question” for the Court to resolve was “whether application of” Montana’s Blaine Amendment “to bar all state-sponsored private-school funding violate[d] the Free Exercise Clause.”[122] In her view, “it d[id] not.”[123]

Justice Sonia Sotomayor saw things similarly, but she concluded that the Court was wrong to decide the case at all. The Montana Supreme Court, she reasoned, “remedied the only potential harm of discriminatory treatment by striking down the program altogether” on “state-law grounds,” and it thereby “declined to resolve federal constitutional issues.”[124] Accordingly, there was no federal question for the Court to review in her eyes.[125]

Finally, Justice Stephen Breyer, in an opinion joined in part by Justice Kagan, disagreed with the majority on the merits, but also with its methodology—specifically, what he called its “overly rigid application of the [Religion] Clauses.”[126] There is, Justice Breyer explained, “constitutional room, or ‘play in the joints,’ between ‘what the Establishment Clause permits and the Free Exercise Clause compels,”[127] and the states are free to act within this area.[128] Discerning the boundaries of that area—and determining “whether a particular state program falls within that space”[129]—requires “the exercise of legal judgment,”[130] he explained, and “depends upon the nature of the aid at issue, considered in light of the Clauses’ objectives.”[131] According to Justice Breyer, Espinoza, like Locke, fell within this play in the joints. The application of Montana’s Blaine Amendment, he maintained, simply prohibited a particular religious “use” of scholarships—“obtain[ing] a religious education”[132]—and did not discriminate based on religious status.[133] That prohibition, moreover, was supported by historic and substantial interests similar to those that justified the religious exclusion in Locke.[134] Accordingly, he saw no violation of the Free Exercise Clause.

IV. What Espinoza Resolves for Educational Choice, and What It Does Not

Espinoza is a landmark decision for the educational choice movement and the millions of children whose parents want the right to choose the education that will work best for them. After Zelman held that educational choice programs are permissible under the federal Establishment Clause, the biggest remaining legal question was whether state Blaine Amendments would nevertheless force the exclusion of religious schools from them. Espinoza has now answered that question: A state need not adopt an educational choice program, “[b]ut once [it] decides to do so, it cannot disqualify some private schools solely because they are religious.”[135]

Of course, that was not the only remaining legal question hanging over educational choice, and opponents have signaled that they will resort to any available argument to prevent state support for alternatives to public schools. As Robert Chanin, then chief counsel for the National Education Association, vowed after Zelman held that educational choice programs are permissible under the federal Constitution, choice opponents will continue their attacks under any “Mickey Mouse provisions” they can find in state constitutions.[136] That is as true today, in the wake of Espinoza, as it was in the wake of Zelman eighteen years ago.

Thus, we can expect challenges under the unique education funding provisions found in many state constitutions (and statutes), as well as state “uniformity clauses,” which require provision for a uniform system of public schools. Such challenges have previously succeeded in a handful of instances,[137] and educational choice opponents presumably will dust these provisions off in the post-Espinoza era.

Another expected avenue of attack will focus on allegedly discriminatory hiring or admissions practices of participating schools. If opponents of choice cannot kill programs outright, they will attempt to neuter the programs by excluding—through litigation or legislation—schools that consider religion, sexual orientation, gender identity, or other factors in hiring or admissions. Indeed, a Christian school in Maryland is currently challenging its expulsion from that state’s voucher program for allegedly violating the program’s “nondiscrimination provision.”[138] The school maintains that its expulsion from the program (which appears to be driven by its traditional view of marriage and its understanding of sex as biologically determined) violates, among other things, its rights under the Free Exercise and Free Speech Clauses of the U.S. Constitution.[139] The extent to which nondiscrimination provisions like Maryland’s can, consistent with the federal Constitution, be used to bar or expel religious schools from educational choice programs is largely an open question,[140] which all but guarantees that opponents of educational choice will employ such provisions to challenge choice programs in the coming years.[141]

Espinoza has nothing to say about education funding provisions, uniformity clauses, and nondiscrimination provisions, much less how they bear on the legality of educational choice programs. But the opinion does note an unresolved issue that opponents of such programs may try to take advantage of in the coming years: Opponents will attempt to invalidate educational choice programs on the theory that they allow public funds to be put to religious uses.

As discussed above, Chief Justice Roberts’ opinion for the Court in Espinoza (and in Trinity Lutheran before it) distinguished between discrimination based on religious status and discrimination based on religious use. Those opinions make clear that religious status-based exclusions in public benefit programs are virtually per se unconstitutional. But the opinions do not resolve the constitutionality of religious use-based exclusions. Locke, meanwhile, provides one example of a use-based exclusion that the Court allowed.

Educational choice opponents will almost certainly try to exploit this opening in future litigation. Even if schools cannot be barred from educational choice programs because of who they are, the argument will go, they may still be excluded from such programs because of what they do.

A textual legal hook for such challenges will likely be the Blaine Amendments. In addition to barring public funding of religious schools (in the words of Montana’s Blaine Amendment, schools “controlled in whole or in part by any church, sect, or denomination”[142]), many Blaine Amendments, Montana’s included, also prohibit appropriations or payments of public funds for any “sectarian purpose.”[143] Others are more specific, providing that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction.”[144]

Educational choice opponents will likely argue that any program that allows participating schools to provide religious instruction or engage in religious worship or exercises runs afoul of such language, not because of who the schools are but because of what they do—i.e., because of the use to which they put the aid they receive. Thus, educational choice opponents will invite courts to invalidate programs (or exclude schools engaging in such activities[145]) because (1) a state restriction on a religious use of public benefits was upheld in Locke and (2) Locke was left undisturbed by Espinoza.

In fact, in the days—even hours—after the Court handed down the Espinoza decision, more than a few commentators—academics and advocates alike—flagged this very issue. Ron Meyer, an attorney who represented the Florida Education Association in legal challenges to educational choice programs in that state, announced that “Roberts’ opinion simply finds that because the benefits of the tax credit vouchers were being withheld solely because of the religious character of the school, it violated the free exercise clause of the First Amendment,” and that it “didn’t reach into whether those monies were used to inculcate students.”[146] Similarly, Professor Steven Green, who has served as both an attorney and expert witness for educational choice opponents, acknowledged that “[t]he majority opinion effectively says [Blaine Amendments] cannot be enforced, at least when they are directed at preventing aid based on the character or status of the recipient,” but he insisted that “one can interpret the language of these provisions as directed at use, not necessarily status.”[147] (He predicted, however, that “most lower courts will read the majority opinion otherwise.”[148])

Even commentators not hostile to educational choice identified the use argument as the next likely legal avenue of attack for educational choice opponents. Mark Scarberry, a law professor at Pepperdine, explained that “[Chief Justice] Roberts’s decision could be interpreted to require Montana to include religious schools in its scholarship tax credit program only to the extent of the schools’ religious status, as opposed to their conduct in providing religious education or their use of the funds for providing religious education.”[149] “A lower court might well seize on that ambiguity,” he predicted, “to limit Espinoza.”[150] And Andy Smarick of the Manhattan Institute predicted that “[f]uture cases could preserve the status-use distinction by requiring that faith-based groups be able to participate in public programs while permitting specific state limits on their use of government funds. In the next few years, the court will almost certainly face a number of questions along these lines.”[151]

There are, to be sure, several obvious counterarguments to this expected next line of attack. First, educational choice programs do not aid schools engaging in religious activities—they aid students—and no money finds its way to any school, religious or non-religious, apart from the private and independent choices of parents. Thus, the argument goes, Blaine Amendments are not even implicated by choice programs. But the Montana Supreme Court (unlike courts in some other states) rejected that argument in Espinoza, holding that the program there aided schools in a way that implicated the state’s Blaine Amendment,[152] and the U.S. Supreme Court was obligated to accept that determination of state law on certiorari.[153]

Another possible counterargument—again, under the text of the Blaine Amendments themselves—is that the purpose of an educational choice program is entirely secular: to facilitate the general education of children. Any religious education that takes place is incidental to parental choice. There is, in other words, no payment or appropriation for a “sectarian purpose.”[154] But here again, the resolution of the question will be one of state law, and different state courts may well come to different conclusions.

It is quite possible, then, that some state courts will conclude that educational choice programs violate Blaine Amendments insofar as the programs allow public funds to be used for “sectarian purposes” or to support “religious worship, exercise, or instruction.” The question would then become whether invalidating a program (or excluding schools from a program) on that basis is permissible under the Free Exercise Clause of the U.S. Constitution. That is a question that Espinoza did not answer.

Of course, the Court could have answered that question in Espinoza by adopting the position set out in Justice Gorsuch’s concurring opinion. In his view, whether a Blaine Amendment “is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way, unless the State can show [that the provision] serves some compelling and narrowly tailored governmental interest.”[155] But Chief Justice Roberts, famous for his incrementalist jurisprudence,[156] said only what he needed to say in order to resolve the case before the Court: that the application of Montana’s Blaine Amendment in that case discriminated based on religious status, and discrimination based on religious status is prohibited by Trinity Lutheran.

V. What Espinoza Portends for Religious Use-Based Attacks on Educational Choice Programs

Although Espinoza does not answer the religious use question, there are several indications in the Chief Justice’s opinion for the Court of how he (and a majority of the Court) might resolve the federal constitutionality of excluding schools from educational choice programs because of the religious uses to which scholarship monies might be put. And those indications strongly suggest that the Court would find such an exclusion just as constitutionally problematic as excluding a school because of its religious status.

A. Status and Use Discrimination Are Not Mutually Exclusive

First, the Court’s opinion makes clear that discrimination based on religious status and discrimination based on religious use are not mutually exclusive. While the opinion insisted that “the Montana Supreme Court’s basis for applying the no-aid provision to exclude religious schools . . . hinged solely on religious status”—not a desire to “ensur[e] that government aid does not end up being used for ‘sectarian education’ or ‘religious education’”—the Court nevertheless held that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.”[157]

This holding makes clear that the religious status versus religious use question is not the binary inquiry that Trinity Lutheran might have suggested it is. A regulation, in other words, can have twin goals—or twin effects—of discriminating based on religious status and religious use. The plaintiffs in Espinoza made this point in their briefing to the Court. As they noted, “many . . . families are required by their religious status to place their children in full-time religious schooling.”[158] “Catholics, for example, have a ‘duty’—set forth in canon law and stressed by the Second Vatican Council—‘of entrusting their children to Catholic schools wherever and whenever it is possible.’”[159] Barring such families from an educational choice program based on the religious use to which they would put their aid necessarily discriminates based on their religious status, as well. Again, status and use are not binary concepts.[160]

The Court’s recognition that the same regulation can have these twin goals or effects suggests, at a minimum, that it will examine future regulations closely to flush out status discrimination that is masked as use discrimination. Alternatively, it could indicate sympathy for Justice Gorsuch’s position that status and use ultimately collapse into each other—that they are two sides of the same coin.

B. The Status/Use Distinction May Be Meaningless

Another passage in the Espinoza opinion suggests that a majority of the Court might be willing to go where Justice Gorsuch has already gone. Referring to Justice Gorsuch’s concurrence (joined by Justice Thomas) in Trinity Lutheran, the Court noted that “[s]ome Members of the Court . . . have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status.”[161] The Court immediately followed that observation by stating, “We acknowledge the point but need not examine it here.”[162]

If there was no need for the Court to examine that point in Espinoza, then there was certainly no reason to flag it either. Yet the Court did flag it, and it is commonly recognized that the Court sometimes signals open questions of law that it might see the need—and have the desire—to resolve in an appropriate future case.[163] Thus, the Court’s statement may evince a readiness to consider “whether there is a meaningful distinction between discrimination based on use or conduct and that based on status”[164]—depending, of course, on how the lower courts apply Espinoza to status and use issues going forward.[165]

C. Even if There Is a Distinction to Be Made Between Status and Use Discrimination, Both May Be Subject to Strict Scrutiny

But even if the Court is not prepared to abandon the status/use distinction, Espinoza suggests that the Court will apply the same searching scrutiny to laws that discriminate based on religious use as it does to those that discriminate based on religious status. In reviewing the latter category, the Court applies strict scrutiny,[166] requiring that the law be narrowly tailored to a compelling governmental interest.[167] And while the Court in Espinoza spent much time explaining exactly how the case involved status discrimination and thus required strict scrutiny,[168] it pointedly added that “[n]one of this is meant to suggest that we agree with the Department that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.”[169]

This statement is significant, because in upholding the religious use-based exclusion in Locke v. Davey, the Court applied what many lower courts and commentators considered a standard short of strict scrutiny.[170] While the majority in Locke “refrained from stating what level of scrutiny it was applying”[171]—a point not lost on the dissent in that case[172]—its description of the state’s interest as “historic and substantial,”[173] rather than compelling, and its dearth of discussion regarding the tailoring of the use-based exclusion to the state’s interest were commonly seen as a departure from earlier cases, such as Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, that had applied strict scrutiny to laws targeting religious uses or conduct for disfavored treatment. That the Court in Espinoza went out of its way to stress that it was not “suggest[ing]” agreement “that some lesser degree of scrutiny applies to discrimination against religious uses of government aid”[174] may well indicate a discomfort with Locke and its seeming abandonment of strict scrutiny in at least some cases where religious uses are targeted for unfavorable treatment.

But even if that is too much to read into the Court’s statement and the Court ultimately stands by Locke, there is another aspect of the Espinoza majority opinion that provides some insight into how the Court will likely apply Locke in future religious use discrimination cases. Locke had noted that the substantial interest that supported Washington’s devotional theology exclusion was also a historic interest—one dating back to the founding era.[175] But Locke did not clearly hold that this temporal characteristic of the state’s interest was required to sustain a law that discriminates against religious use.[176] Espinoza, on the other hand, comes close to holding precisely that. The Court rejected the Department’s attempt to justify the application of Montana’s Blaine Amendment under Locke, holding that “no comparable ‘historic and substantial’ tradition supports Montana’s decision to disqualify religious schools from government aid.”[177] And while the Department (and Justice Sotomayor, in dissent) “argue[d] that a tradition against state support for religious schools arose” a bit later—“in the second half of the 19th century,” with the adoption of the Blaine Amendments themselves—the majority held that “such evidence . . . cannot create” an “early practice” or “establish an early American tradition” as contemplated in Locke.[178]

Thus, even if the Court, in future cases, concludes that a substantial, rather than compelling, interest is sufficient to justify religious use-based discrimination, it seems clear that any old substantial interest will not do. Rather, it must be an interest rooted in early American tradition—a “consistent early tradition” at that[179]—dating back specifically to the founding era. In that respect, this standard could be viewed as more demanding than strict scrutiny, which may require a weightier (i.e., compelling) governmental interest but does not require that the interest be temporally rooted in the nation’s founding.

D. In Distinguishing Between Status and Use Discrimination, Use Must Be Construed Narrowly

Finally, even if the Court is not prepared to abandon the status/use distinction, and even if it subjects use-based exclusions to a degree of scrutiny less searching than that by which it judges exclusions based on status, the majority’s opinion in Espinoza nevertheless suggests that the Court will look at purportedly use-based exclusions with a suspicious eye and be especially reluctant to treat broad, wholesale exclusions as use-based. The broader an exclusion, it seems, the more likely the Court will be to treat it as one targeting religious status.

In distinguishing the devotional theology exclusion in Locke from the wholesale exclusion of religious schools in Espinoza, the Court repeatedly stressed the narrowness of the exclusion in Locke. “Washington,” it said, “had ‘merely chosen not to fund a distinct category of instruction’: the ‘essentially religious endeavor’ of training a minister ‘to lead a congregation.’”[180] “Apart from that narrow restriction,” the Court explained, “Washington’s program allowed scholarships to be used at ‘pervasively religious schools’ that incorporated religious instruction throughout their classes.”[181] “By contrast,” the Court noted, “Montana’s Constitution does not zero in on any particular ‘essentially religious’ course of instruction at a religious school.”[182] Rather, the Montana Constitution “bar[red] all aid to a religious school ‘simply because of what it is.’”[183]

The italicized language in the quoted sentences above suggests that, going forward, the Court will carefully examine purportedly use-based exclusions to ensure they are indeed use-based, and that only “narrow” exclusions that “zero in on” an “essentially” religious activity will qualify. In other words, if the status/use distinction survives, the Court will be quick to expose status-based discrimination that comes in use-based clothing.

VI. Conclusion

Espinoza is a landmark education decision, clearing the legal path for expanded educational opportunity for hundreds of thousands of schoolchildren throughout the country. The decision will prevent courts from invalidating educational choice programs simply because they include religious options, as the Montana Supreme Court had done. It will likewise prevent legislatures and agencies from affirmatively excluding schools from educational choice programs simply because of their religious status, as the Montana Department of Revenue did.

But educational choice opponents are a dogged bunch, and they will continue to attack educational choice programs—in statehouses and courthouses—on the theory that they permit public funds to be put to religious uses in violation of state Blaine Amendments. The Court could have headed off those attacks in Espinoza. Although it declined to do so, it did give a strong indication of how those future battles will end.

The Court may well be prepared to abandon the status/use distinction that has developed in its jurisprudence since Trinity Lutheran and treat all religion-based exclusions—whether targeted at status or use—as presumptively unconstitutional. But even if the Court decides to preserve the distinction, it seems clear that the Court will rigorously examine religious exclusions in educational choice and other public benefit programs, flushing out status-based discrimination that is masked as use-based. And even when dealing with a truly use-based exclusion, the Court will likely subject it to the same strict scrutiny applicable to status-based exclusions, or to some similarly demanding level of scrutiny that can only be satisfied if the exclusion is necessary to advance a narrow, specific governmental interest that is firmly rooted in a well-established, founding-era American tradition. One way or another, ostensibly use-based exclusions in educational choice programs are likely to suffer the same fate as the status-based exclusion in Espinoza.