An important case pending before the Supreme Court may provide important guidance on the question whether the Equal Protection Clause prohibits states from denying government subsidies to religious organizations who will use the funds for religious purposes. This equal protection issue is complex and has never been squarely addressed. And it may prove complicated even for conservative proponents of the rights of religious individuals and institutions to receive government financial support for religious activities.
In 2015 Montana enacted a scholarship program that provides a dollar-for-dollar tax credit (up to a certain dollar amount) to individuals and businesses who donate to private scholarship organizations. The scholarship organizations, in turn, provide funding for children to attend private schools, the majority of which are religious in character.
After reviewing the program, the Montana Department of Revenue issued a ruling that forbade the public subsidy from going towards scholarships at religious schools. The Department relied on its reading of the state constitution and its ban on aid for churches and religious schools.
Mothers of three low-income children challenged the Department’s ruling in state court, asserting that the Department’s interpretation of the state constitution places it in conflict with the Fourteenth Amendment (either the equal protection clause or insofar as other parts of the Fourteenth Amendment incorporate the religion clauses of the First Amendment against the states). The plaintiffs won in the state trial court, but then lost before the Montana Supreme Court, which agreed with the Department’s reading of the Montana constitution, and which found no conflict between this reading and anything in the federal Constitution.
In the U.S. Supreme Court, which heard arguments on the merits in January in the case, Espinoza v. Montana Department of Revenue, the “question presented” was framed as follows: “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?”
While there is a great deal that could be said (and debated) concerning the interpretation and application of the religion clauses in relation to government aid to religious institutions (one of us has written extensively on this subject), in this column we address only the (relatively underdiscussed) equal protection question the Court identified.
The Rules and Theories Governing Overt, Facial Classifications
To be sure, the state constitutional provision at issue discriminates against religion as a generic category, but on its face the state law is denominationally neutral. In other words, it does not formally favor or disfavor any particular faith. Overwhelmingly, equal protection case law focuses on the facial content of the challenged classification. If we do that here, the operative question would be whether discrimination against all religious groups (or against religion in relation to non-religion) violates equal protection requirements.
All laws discriminate; it is the essence of regulation to treat some people or things differently—unequally—from other persons and things. But few laws receive rigorous review under the Equal Protection Clause based on the inequality they create. Instead, most all classifications (grounds for differentiation or discrimination, that is) are subject to a very lenient, minimum rationality standard of review (which most people view as a virtual rubber stamp of the legislation) . Thus, to assess the Montana state constitutional provision, we need to determine whether a facially discriminatory law directed at religion should trigger rigorous review under the Equal Protection Clause rather than the highly deferential rational basis review applicable to most economic and social welfare regulations.
To answer this question, we can look at established Supreme Court precedent involving classifications discriminating against groups based on race, national ancestry, gender, alienage, and the marital status of a child’s parents. We can also consider more contemporary lower court decisions adjudicating challenges to laws discriminating on the basis of sexual orientation.
One important theme running through this precedent employs a recurring set of criteria (tracing back to the famous Footnote 4 of the United States v. Carolene Products case in 1938) to determine whether rigorous scrutiny is warranted: Is the discriminated against group a discrete and insular minority? Is it politically powerless such that courts need to protect it from unfair treatment in the legislative process? Has it been historically victimized by irrational prejudice and bigotry? Is it defined by an immutable characteristic?
If we apply these criteria to religious people as a group, it would be hard to justify heightened scrutiny under equal protection doctrine. Religious folks as a category of people are neither discrete nor insular. Generally speaking, religious people live everywhere, are integrated throughout the United States, and are typically indistinguishable from their secular counterparts. Further, religious people make up a majority rather than a minority of the polity. And they are hardly politically powerless. They are one of the most powerful political constituencies in the country. There is no history of anti-religious prejudice directed at all people of faith. And religious belief and affiliation is not immutable, at least not the way race is; in the United States, people both change and lose their faith.
Accordingly, it would be difficult to argue that religious people constitute a group specially protected against discrimination by the Equal Protection Clause under these traditional, political-process-oriented criteria.
Many conservative jurists may reject the centrality of the above criteria, and in the past handful of decades have often not based rulings on them. One substitute approach conservatives may offer is an originalist analysis of the meaning of the Equal Protection Clause. In the context of Espinoza, the question would be this: what were the dominant understandings in 1868 (when the Fourteenth Amendment was adopted) concerning the public funding of religious institutions? One might argue that conservatives believing in originalism should uphold the Montana law unless an original intent or plain meaning analysis demonstrates that the Fourteenth Amendment was intended or understood at the time of enactment to prevent government from making the choice to treat religion and non-religion differently when it comes to funding private institutions.
In this vein, consider how conservative originalists have recently approached claims that state facilitation for religion is permissible rather than, as is claimed in Espinoza, required: they deduce what was allowable under the U.S. Constitution based on what government and individuals were actually doing at the time of and shortly after the enactment of the constitutional provision in question. Thus, they contend, if a government-sponsored religious practice was common at the time a constitutional amendment was adopted, that amendment cannot be interpreted to prohibit government sponsorship of such a practice. For example, conservative jurists in cases like Town of Greece v. Galloway insist that if chaplains were constitutionally offering prayers at the beginning of legislative sessions in 1791, clergy offering prayers before town board meetings cannot be held to violate the Establishment Clause today. By parity of reasoning, if states were enacting state constitutional provisions that selectively prohibited (rather than allowed) funding religious activities—and thus discriminated against religion vis a vis non-religion—at the time of and shortly after the Fourteenth Amendment’s enactment, then it should be difficult to argue, under this originalist framework, that such state law provisions are precluded by the contemporaneously adopted Equal Protection Clause.
Moving beyond a Footnote 4 framework and an originalist approach, conservative jurists and scholars have also supported a different understanding of equal protection doctrine altogether. Instead of focusing on the discriminatory treatment of a suspect class of people, such as racial minorities, they argue that the Court’s attention should be directed at the classification employed in the challenged law, such as the use of race as a general matter. Under this “classification-rather-than-class-of-persons” approach, if race is a problematic basis for sorting people (because its use historically has generated socio-political costs) in cases like Brown v. Board of Education, it is also presumptively a problematic basis to use in affirmative action programs which seek to benefit African Americans, albeit to the material detriment of other groups such as white persons. From this perspective, it is irrelevant that white people cannot reasonably be considered a group unable to take care of itself in the political process, and it also (seemingly) irrelevant whether the Framers of the Fourteenth Amendment understood they were protecting white persons and disavowed race-based affirmative action (which they did not). What is dispositive to determine the standard of review is simply that the law applies a racial classification: The use of all racial classifications requires strict scrutiny.
If one thinks that religion, like race, is an inherently socio-politically problematic criterion for government to employ, this third approach could arguably be used to support the rigorous review of laws that classify on the basis of religion, such as the Montana constitutional provision at issue in Espinoza. But if that were the path taken, it could lead to what many conservatives would consider to be very problematic ramifications. Every law that accommodates religious beliefs and practices and that exempts religious believers and institutions from regulations that their secular counterparts must obey classifies on the basis of religion. Such laws include general religious liberty statutes, like the federal and state Religious Freedom Restoration Acts (RFRA) or the Federal Religious Land Use and Institutionalized Persons Act (RLUIPA), as well as more specific accommodations for particular practices. All these laws would be subject to rigorous review. The fact that they were intended to serve the benign purpose of protecting the religious liberty of religious minorities would not support the application of a more lenient standard of review any more than the fact that affirmative action laws intended to further the benign purpose of remedying past discrimination or promoting racial diversity would support a more lenient standard of review in cases challenging such programs.
Beyond Facial Classifications—The Holy Grail of Invidious Intent
Beyond challenging the permissibility of a facial classification written into a law, plaintiffs theoretically may challenge a law’s constitutionality based on the allegedly invidious motive behind its enactment. In the context of Espinoza, the argument would be that the Montana constitutional amendment at issue in this case (and amendments like it) was adopted out of anti-Catholic animus and as such violates the Equal Protection Clause.
For a variety of reasons, some of which are discussed below, courts have been generally reluctant to allow facially neutral statutes that allegedly abridge fundamental rights to be seriously challenged on the grounds of invidious motive. Motive-based challenges in the realm of free speech (as in the famous draft-card-burning case, O’Brien v. United States) have regularly been rejected. And the Court has been similarly unwilling to accept such arguments in cases involving the free exercise of religion. Over two decades ago, in Church of Lukumi Babalu Aye v. Hialeah, Justice Kennedy, the lead author in the case, was unable to gain even marginal support for the invidious-motive section of his opinion, and Justices Scalia and Rehnquist explicitly rejected an invidious motive argument. More recently, two terms ago, in the Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission case, the majority acknowledged the Court’s unwillingness to strike down neutral laws alleged to violate free exercise rights based upon invidious motive, but distinguished the case before it as involving adjudicatory proceedings, not legislation.
Invidious-motive challenges are much more common in the equal protection, as distinguished from the First Amendment, setting. Plaintiffs under equal protection doctrine can challenge even a facially unproblematic law if it has a disparate effect among different groups and was in fact motivated by a desire to hurt some class of persons. So, for example, a law or policy that requires public law schools to use the LSAT could be challenged if plaintiffs could show that racial minorities fare more poorly on the LSAT than do whites (a regrettable but undeniable reality) and that the law was itself motivated by a desire to deny ethnic minorities access to legal education.
To the extent that plaintiffs in Espinoza predicate their challenge to Montana’s constitutional provision on anti-Catholic animus at the time of its adoption, their equal protection claim thus has a greater likelihood of success that a free exercise claim grounded on invidious motive would under existing precedent.
But even equal protection claims based on invidious motive tend to be problematic and generally do not succeed. And an equal protection claim in Espinoza grounded on claims of anti-Catholic animus raises distinctive questions with which the Court, in particular conservative jurists on the Court, will have to grapple. First, anti-Catholic animus was pervasive in the United States in 1791. Prominent founders of our country were overtly anti-Catholic. Indeed, the arguments of Protestant clergy asserting the importance of religious liberty reeked of anti-Catholicism. The Catholic faith was considered to be much more of a threat to religious liberty than it was a religious minority deserving of the protection of religious freedom. And in 1868, anti-Catholic attitudes were also widespread.
How does this pervasive bias present challenges for the plaintiffs? For originalists, the prevalence of such prejudice would be very relevant to understanding the meaning of the federal constitutional provisions on which contemporary challenges to invidiously motivated laws are based. If pervasive anti-Catholic attitudes explain the widespread adoption of state constitutional provisions restricting government aid to religious schools, noted above, during the latter part of the nineteenth century, how would one contend from an originalist perspective that the drafters of the Fourteenth Amendment intended, or the plain meaning of the Equal Protection Clause was understood, to invalidate these same state restrictions on government aid to religious schools? (To be sure, all originalists must grapple with questions about the level of generality at which they understand the relevant historical consensuses, but conservatives tend to focus on the narrowest historical practices that were prevalent—in this case the laws clearly designed to deny government financial support to Catholic institutions.)
Another problem for the plaintiffs here (at least from the perspective of conservatives trying to stay consistent) is that the bigoted placement of restrictions on aid to religious schools is hardly the only important feature of constitutional law steeped in prejudice. Surely, no constitutional structure is tainted more egregiously with the stain of bias than the protection of state and local autonomy. “States’ rights,” after all, was the rallying cry of states seeking to maintain the institution of slavery, and it served as the foundation for over a century-long defense of Jim Crow segregation. Today, of course, we recognize important non-invidious rationales for supporting federalism as part of the constitutional framework. Does that recognition justify ignoring the invidious history of states’ rights doctrine in deciding contemporary federalism cases?
As with states’ rights, so too with the provision or prohibition of government aid to religious institutions. Whatever role anti-Catholic prejudice played in the adoption of decisions not to fund religion a hundred and fifty years ago, contemporary separation of church and state justifications for such restrictions no longer reflect Protestant antipathy toward Catholicism, but rather are grounded on numerous and varied non-invidious concerns. One may dispute the merits of these separationist arguments, but that is far cry from insisting that state policies in place today continue to reflect anti-Catholic prejudice.
These problems are related to several of the concerns that have made courts wary—as a more general matter—of accepting invidious motive as a basis for striking down laws as unconstitutional. One argument has been that any such judicial invalidation would be inherently futile: if a law is invalidated solely because of the invidious motives of the legislature which enacted it, there is little to prevent a legislature next year from re-enacting essentially the same law but with a different, benign rationale for doing so. If the response is that the earlier invidious motive continues to taint the new law, one may reasonably ask how long this taint will continue. At some point, surely, the original sin no longer constrains lawmaking.
These kinds of questions are obviously relevant in Espinoza. States often reform and re-adopt state constitutional provisions. If a state constitutional provision restricting state financial support for religious institutions, once motivated by anti-Catholic animus, is re-adopted in modern times through a decision-making process that seems devoid of antipathy, is this provision still vulnerable to constitutional challenge because the earlier version of the provision was invidiously motivated?
We express no opinion in this essay as to whether the courts’ often-expressed concerns about striking down invidiously motivated laws can be effectively overcome. We do contend, however, that jurists who reject invalidating invidiously motivated laws for the reasons we have discussed, and other reasons, in various other contexts would have an obligation to explain why these concerns are not persuasive in the Espinoza setting.