Espinoza v. Montana Department of Revenue

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Chief Justice Roberts delivered the opinion of
the Court.

															The Montana Legislature established a program to
provide tuition assistance to parents who send their children to
private schools. The program grants a tax credit to anyone who
donates to certain organizations that in turn award scholarships to
selected students attending such schools. When petitioners sought
to use the scholarships at a religious school, the Montana Supreme
Court struck down the program. The Court relied on the “no-aid”
provision of the State Constitution, which prohibits any aid to a
school controlled by a “church, sect, or denomination.” The
question presented is whether the Free Exercise Clause of the
United States Constitution barred that application of the no-aid
provision.

															I

															A

															In 2015, the Montana Legislature sought “to
provide parental and student choice in education” by enacting a
scholarship program for students attending private schools. 2015
Mont. Laws p. 2168, §7. The program grants a tax credit of up to
$150 to any taxpayer who donates to a participating “student
scholarship organization.” Mont. Code Ann. §§15–30–3103(1),
–3111(1) (2019). The scholarship organizations then use the
donations to award scholarships to children for tuition at a
private school. §§15–30–3102(7)(a), –3103(1)(c).[ 1 ]

															So far only one scholarship organization, Big
Sky Scholarships, has participated in the program. Big Sky focuses
on providing scholarships to families who face financial hardship
or have children with disabilities. Scholarship organizations like
Big Sky must, among other requirements, maintain an application
process for awarding the scholarships; use at least 90% of all
donations on scholarship awards; and comply with state reporting
and monitoring requirements. §§15–30–3103(1), –3105(1),
–3113(1).

															A family whose child is awarded a scholarship
under the program may use it at any “qualified education
provider”—that is, any private school that meets certain
accreditation, testing, and safety requirements. See
§15–30–3102(7). Virtually every private school in Montana
qualifies. Upon receiving a scholarship, the family designates its
school of choice, and the scholarship organization sends the
scholarship funds directly to the school. §15–30–3104(1). Neither
the scholarship organization nor its donors can restrict awards to
particular types of schools. See §§15–30–3103(1)(b), –3111(1).

															The Montana Legislature allotted $3 million
annually to fund the tax credits, beginning in 2016.
§15–30–3111(5)(a). If the annual allotment is exhausted, it
increases by 10% the following year. Ibid. The program is
slated to expire in 2023. 2015 Mont. Laws p. 2186, §33.

															The Montana Legislature also directed that the
program be administered in accordance with Article X, section 6, of
the Montana Constitution, which contains a “no-aid” provision
barring government aid to sectarian schools. See Mont. Code Ann.
§15–30–3101. In full, that provision states:

															“ Aid prohibited to sectarian
schools . . . . The legislature, counties, cities, towns,
school districts, and public corporations shall not make any direct
or indirect appropriation or payment from any public fund or
monies, or any grant of lands or other property for any sectarian
purpose or to aid any church, school, academy, seminary, college,
university, or other literary or scientific institution, controlled
in whole or in part by any church, sect, or denomination.” Mont.
Const., Art. X, §6(1).

															Shortly after the scholarship program was
created, the Montana Department of Revenue promulgated “Rule 1,”
over the objection of the Montana Attorney General. That
administrative rule prohibited families from using scholarships at
religious schools. Mont. Admin. Rule §42.4.802(1)(a) (2015). It did
so by changing the definition of “qualified education provider” to
exclude any school “owned or controlled in whole or in part by any
church, religious sect, or denomination.” Ibid. The
Department explained that the Rule was needed to reconcile the
scholarship program with the no-aid provision of the Montana
Constitution.

															The Montana Attorney General disagreed. In a
letter to the Department, he advised that the Montana Constitution
did not require excluding religious schools from the program, and
if it did, it would “very likely” violate the United States
Constitution by discriminating against the schools and their
students. See Complaint in No. DV–15–1152A (Dist. Ct. Flathead
Cty.), Exh. 3, pp. 2, 5–6. The Attorney General is not representing
the Department in this case.

															B

															This suit was brought by three mothers whose
children attend Stillwater Christian School in northwestern
Montana. Stillwater is a private Christian school that meets the
statutory criteria for “qualified education providers.” It serves
students in prekindergarten through 12th grade, and petitioners
chose the school in large part because it “teaches the same
Christian values that [they] teach at home.” App. to Pet. for Cert.
152; see id. , at 138, 167. The child of one petitioner has
already received scholarships from Big Sky, and the other
petitioners’ children are eligible for scholarships and planned to
apply. While in effect, however, Rule 1 blocked petitioners from
using scholarship funds for tuition at Stillwater. To overcome that
obstacle, petitioners sued the Department of Revenue in Montana
state court. Petitioners claimed that Rule 1 conflicted with the
statute that created the scholarship program and could not be
justified on the ground that it was compelled by the Montana
Constitution’s no-aid provision. Petitioners further alleged that
the Rule discriminated on the basis of their religious views and
the religious nature of the school they had chosen for their
children.

															The trial court enjoined Rule 1, holding that it
was based on a mistake of law. The court explained that the Rule
was not required by the no-aid provision, because that provision
prohibits only “appropriations” that aid religious schools, “not
tax credits.” Id. , at 94.

															The injunctive relief freed Big Sky to award
scholarships to students regardless of whether they attended a
religious or secular school. For the school year beginning in fall
2017, Big Sky received 59 applications and ultimately awarded 44
scholarships of $500 each. The next year, Big Sky received 90
applications and awarded 54 scholarships of $500 each. Several
families, most with incomes of $30,000 or less, used the
scholarships to send their children to Stillwater Christian.

															In December 2018, the Montana Supreme Court
reversed the trial court. 393 Mont. 446, 435 P.3d 603. The Court
first addressed the scholarship program unmodified by Rule 1,
holding that the program aided religious schools in violation of
the no-aid provision of the Montana Constitution. In the Court’s
view, the no-aid provision “broadly and strictly prohibits aid to
sectarian schools.” Id. , at 459, 435 P. 3d, at 609. The
scholarship program provided such aid by using tax credits to
“subsidize tuition payments” at private schools that are
“religiously affiliated” or “controlled in whole or in part by
churches.” Id. , at 464–467, 435 P. 3d, at 612–613. In
that way, the scholarship program flouted the State Constitution’s
“guarantee to all Montanans that their government will not use
state funds to aid religious schools.” Id. , at 467, 435
P. 3d, at 614.

															The Montana Supreme Court went on to hold that
the violation of the no-aid provision required invalidating the
entire scholarship program. The Court explained that the program
provided “no mechanism” for preventing aid from flowing to
religious schools, and therefore the scholarship program could not
“under any circumstance” be construed as consistent with the
no-aid provision. Id. , at 466–468, 435 P. 3d, at
613–614. As a result, the tax credit is no longer available to
support scholarships at either religious or secular private
schools.

															The Montana Supreme Court acknowledged that “an
overly-broad” application of the no-aid provision “could implicate
free exercise concerns” and that “there may be a case” where
“prohibiting the aid would violate the Free Exercise Clause.” Id. , at 468, 435 P. 3d, at 614. But, the Court
concluded, “this is not one of those cases.” Ibid. Finally, the Court agreed with petitioners that
the Department had exceeded its authority in promulgating
Rule 1. The Court explained that the statute creating the
scholarship program had broadly defined qualifying schools to
include all private schools, including religious ones, and the
Department lacked authority to “transform” that definition with an
administrative rule. Id. , at 468–469, 435 P. 3d, at
614–615.

															Several Justices wrote separately. All agreed
that Rule 1 was invalid, but they expressed differing views on
whether the scholarship program was consistent with the Montana and
United States Constitutions. Justice Gustafson’s concurrence argued
that the program violated not only Montana’s no-aid provision but
also the Federal Establishment and Free Exercise Clauses. Id. , at 475–479, 435 P. 3d, at 619–621. Justice
Sandefur echoed the majority’s conclusion that applying the no-aid
provision was consistent with the Free Exercise Clause, and he
dismissed the “modern jurisprudence” of that Clause as
“unnecessarily complicate[d]” due to “increasingly value-driven
hairsplitting and overstretching.” Id. , at 482–484, 435
P. 3d, at 623–624.

															Two Justices dissented. Justice Rice would have
held that the scholarship program was permissible under the no-aid
provision. He criticized the majority for invalidating the program
“ sua sponte ,” contending that no party had challenged
it under the State Constitution. Id. , at 495, 435
P. 3d, at 631. Justice Baker also would have upheld the
program. In her view, the no-aid provision did not bar the use of
scholarships at religious schools, and free exercise concerns could
arise under the Federal Constitution if it did. Id. , at
493–494, 435 P. 3d, at 630.

															We granted certiorari. 588 U. S. ___
(2019).

															II

															A

															The Religion Clauses of the First Amendment
provide that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.” We have recognized a “ ‘play in the joints’ between what
the Establishment Clause permits and the Free Exercise Clause
compels.” Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___, ___ (2017) (slip op., at 6)
(quoting Locke v. Davey , 540
U.S. 712 , 718 (2004)). Here, the parties do not dispute that
the scholarship program is permissible under the Establishment
Clause. Nor could they. We have repeatedly held that the
Establishment Clause is not offended when religious observers and
organizations benefit from neutral government programs. See, e.g. , Locke , 540 U. S., at 719; Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S.
819 , 839 (1995). See also Trinity Lutheran , 582
U. S., at ___ (slip op., at 6) (noting the parties’ agreement
that the Establishment Clause was not violated by including
churches in a playground resurfacing program). Any Establishment
Clause objection to the scholarship program here is particularly
unavailing because the government support makes its way to
religious schools only as a result of Montanans independently
choosing to spend their scholarships at such schools. See Locke , 540 U. S., at 719; Zelman v. Simmons-Harris , 536 U.S.
639 , 649–653 (2002). The Montana Supreme Court, however, held
as a matter of state law that even such indirect government support
qualified as “aid” prohibited under the Montana Constitution.

															The question for this Court is whether the Free
Exercise Clause precluded the Montana Supreme Court from applying
Montana’s no-aid provision to bar religious schools from the
scholarship program. For purposes of answering that question, we
accept the Montana Supreme Court’s interpretation of state
law—including its determination that the scholarship program
provided impermissible “aid” within the meaning of the Montana
Constitution—and we assess whether excluding religious schools and
affected families from that program was consistent with the Federal
Constitution.[ 2 ]

															The Free Exercise Clause, which applies to the
States under the Fourteenth Amendment, “protects religious
observers against unequal treatment” and against “laws that impose
special disabilities on the basis of religious status.” Trinity
Lutheran , 582 U. S., at ___, ___ (slip op., at 6, 9)
(internal quotation marks and alterations omitted); see Cantwell v. Connecticut , 310
U.S. 296 , 303 (1940). Those “basic principle[s ]” have
long guided this Court. Trinity Lutheran , 582 U. S., at
___–___ (slip op., at 6–9). See, e.g. , Everson v. Board of Ed. of Ewing , 330 U.S.
1 , 16 (1947) (a State “cannot exclude individual Catholics,
Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers,
Presbyterians, or the members of any other faith, because of
their faith, or lack of it , from receiving the benefits of
public welfare legislation”); Lyng v. Northwest Indian
Cemetery Protective Assn. , 485 U.S.
439 , 449 (1988) (the Free Exercise Clause protects against laws
that “penalize religious activity by denying any person an equal
share of the rights, benefits, and privileges enjoyed by other
citizens”).

															Most recently, Trinity Lutheran distilled
these and other decisions to the same effect into the
“unremarkable” conclusion that disqualifying otherwise eligible
recipients from a public benefit “solely because of their religious
character” imposes “a penalty on the free exercise of religion that
triggers the most exacting scrutiny.” 582 U. S., at ___–___
(slip op., at 9–10). In Trinity Lutheran , Missouri provided
grants to help nonprofit organizations pay for playground
resurfacing, but a state policy disqualified any organization
“owned or controlled by a church, sect, or other religious entity.” Id. , at ___ (slip op., at 2). Because of that policy, an
otherwise eligible church-owned preschool was denied a grant to
resurface its playground. Missouri’s policy discriminated against
the Church “simply because of what it is—a church,” and so the
policy was subject to the “strictest scrutiny,” which it failed. Id. , at ___–___ (slip op., at 11–15). We acknowledged that
the State had not “criminalized” the way in which the Church
worshipped or “told the Church that it cannot subscribe to a
certain view of the Gospel.” Id. , at ___ (slip op., at 11).
But the State’s discriminatory policy was “odious to our
Constitution all the same.” Id. , at ___ (slip op., at
15).

															Here too Montana’s no-aid provision bars
religious schools from public benefits solely because of the
religious character of the schools. The provision also 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. This is apparent from the plain text. The provision
bars aid to any school “controlled in whole or in part by any
church, sect, or denomination.” Mont. Const., Art. X, §6(1).
The provision’s title—“Aid prohibited to sectarian
schools”—confirms that the provision singles out schools based on
their religious character. Ibid. And the Montana Supreme
Court explained that the provision forbids aid to any school that
is “sectarian,” “religiously affiliated,” or “controlled in whole
or in part by churches.” 393 Mont., at 464–467, 435 P. 3d, at
612–613. The provision plainly excludes schools from government aid
solely because of religious status. See Trinity Lutheran ,
582 U. S., at ___–___ (slip op., at 9–10).

															The Department counters that Trinity
Lutheran does not govern here because the no-aid provision
applies not because of the religious character of the recipients,
but because of how the funds would be used—for “religious
education.” Brief for Respondents 38. In Trinity Lutheran , a
majority of the Court concluded that the Missouri policy violated
the Free Exercise Clause because it discriminated on the basis of
religious status. A plurality declined to address discrimination
with respect to “religious uses of funding or other forms of
discrimination.” 582 U. S., at ___, n. 3 (slip op., at 14, n.
3). The plurality saw no need to consider such concerns because
Missouri had expressly discriminated “based on religious identity,” ibid. , which was enough to invalidate the state policy
without addressing how government funds were used.

															This case also turns expressly on religious
status and not religious use. The Montana Supreme Court applied the
no-aid provision solely by reference to religious status. The Court
repeatedly explained that the no-aid provision bars aid to “schools
controlled in whole or in part by churches,” “sectarian schools,”
and “religiously-affiliated schools.” 393 Mont., at 463–467, 435
P. 3d, at 611–613. Applying this provision to the scholarship
program, the Montana Supreme Court noted that most of the private
schools that would benefit from the program were “religiously
affiliated” and “controlled by churches,” and the Court ultimately
concluded that the scholarship program ran afoul of the Montana
Constitution by aiding “schools controlled by churches.” Id. , at 466–467, 435 P. 3d, at 613–614. The Montana
Constitution discriminates based on religious status just like the
Missouri policy in Trinity Lutheran , which excluded
organizations “owned or controlled by a church, sect, or other
religious entity.” 582 U. S., at ___ (slip op., at 2).

															The Department points to some language in the
decision below 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.” 393 Mont., at
460, 466–467, 435 P. 3d, at 609, 613–614. The Department also
contrasts what it characterizes as the “completely non-religious”
benefit of playground resurfacing in Trinity Lutheran with
the unrestricted tuition aid at issue here. Tr. of Oral Arg. 31.
General school aid, the Department stresses, could be used for
religious ends by some recipients, particularly schools that
believe faith should “ permeate [ ]” everything they do.
Brief for Respondents 39 (quoting State ex rel. Chambers v. School Dist. No. 10 , 155 Mont. 422, 438, 472 P.2d 1013 , 1021 (1970)). See also post , at 8, 13
(Breyer, J., dissenting).

															Regardless, 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.
Status-based discrimination remains status based even if one of its
goals or effects is preventing religious organizations from putting
aid to religious uses.

															Undeterred by Trinity Lutheran , the
Montana Supreme Court applied the no-aid provision to hold that
religious schools could not benefit from the scholarship program.
393 Mont., at 464–468, 435 P. 3d, at 612–614. So applied, the
provision “impose[s] special disabilities on the basis of religious
status” and “condition[s] the availability of benefits upon a
recipient’s willingness to surrender [its] religiously impelled
status.” Trinity Lutheran , 582 U. S., at ___–___ (slip
op., at 9–10) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508
U.S. 520 , 533 (1993), and McDaniel v. Paty , 435 U.S.
618 , 626 (1978) (plurality opinion) (alterations omitted)). To
be eligible for government aid under the Montana Constitution, a
school must divorce itself from any religious control or
affiliation. Placing such a condition on benefits or privileges
“inevitably deters or discourages the exercise of First Amendment
rights.” Trinity Lutheran , 582 U. S., at ___ (slip op.,
at 11) (quoting Sherbert v. Verner , 374 U.S.
398 , 405 (1963) (alterations omitted)). The Free Exercise
Clause protects against even “indirect coercion,” and a State
“punishe[s] the free exercise of religion” by disqualifying the
religious from government aid as Montana did here. Trinity
Lutheran , 582 U. S., at ___–___ (slip op., at 10–11)
(internal quotation marks omitted). Such status-based
discrimination is subject to “the strictest scrutiny.” Id. ,
at ___ (slip op., at 11).

															None of this is meant to suggest that we agree
with the Department, Brief for Respondents 36–40, that some lesser
degree of scrutiny applies to discrimination against religious uses
of government aid. See Lukumi , 508 U. S., at 546
(striking down law designed to ban religious practice involving
alleged animal cruelty, explaining that a law “target[ing]
religious conduct for distinctive treatment or advanc[ing]
legitimate governmental interests only against conduct with a
religious motivation will survive strict scrutiny only in rare
cases”). Some Members of the Court, moreover, have questioned
whether there is a meaningful distinction between discrimination
based on use or conduct and that based on status. See Trinity
Lutheran , 582 U. S., at ___–___ (slip op., at 1–2)
(Gorsuch, J., joined by Thomas, J., concurring in part) (citing, e.g. , Lukumi , 508 U.S.
520 , and Thomas v. Review Bd. of Ind. Employment
Security Div. , 450 U.S.
707 (1981)). We acknowledge the point but need not examine it
here. It is enough in this case to conclude that strict scrutiny
applies under Trinity Lutheran because Montana’s no-aid
provision discriminates based on religious status.

															B

															Seeking to avoid Trinity Lutheran , the
Department contends that this case is instead governed by Locke v. Davey , 540 U.S.
712 (2004). See also post , at 5 (Breyer, J.,
dissenting); post , at 9 (Sotomayor, J., dissenting). Locke also involved a scholarship program. The State of
Washington provided scholarships paid out of the State’s general
fund to help students pursuing postsecondary education. The
scholarships could be used at accredited religious and nonreligious
schools alike, but Washington prohibited students from using the
scholarships to pursue devotional theology degrees, which prepared
students for a calling as clergy. This prohibition prevented Davey
from using his scholarship to obtain a degree that would have
enabled him to become a pastor. We held that Washington had not
violated the Free Exercise Clause. Locke differs from this case in two
critical ways. First, Locke explained that Washington had
“merely chosen not to fund a distinct category of instruction”: the
“essentially religious endeavor” of training a minister “to lead a
congregation.” Id. , at 721. Thus, Davey “was denied a
scholarship because of what he proposed to do —use the funds
to prepare for the ministry.” Trinity Lutheran , 582
U. S., at ___ (slip op., at 12). Apart from that narrow
restriction, Washington’s program allowed scholarships to be used
at “pervasively religious schools” that incorporated religious
instruction throughout their classes. Locke , 540 U. S.,
at 724–725. By contrast, Montana’s Constitution does not zero in on
any particular “essentially religious” course of instruction at a
religious school. Rather, as we have explained, the no-aid
provision bars all aid to a religious school “simply because of
what it is,” putting the school to a choice between being religious
or receiving government benefits. Trinity Lutheran , 582
U. S., at ___ (slip op., at 12). At the same time, the
provision puts families to a choice between sending their children
to a religious school or receiving such benefits.

															Second, Locke invoked a “historic and
substantial” state interest in not funding the training of clergy,
540 U. S., at 725, explaining that “opposition to
. . . funding ‘to support church leaders’ lay at the
historic core of the Religion Clauses,” Trinity Lutheran ,
582 U. S., at ___ (slip op., at 13) (quoting Locke , 540
U. S., at 722). As evidence of that tradition, the Court in Locke emphasized that the propriety of state-supported
clergy was a central subject of founding-era debates, and that most
state constitutions from that era prohibited the expenditure of tax
dollars to support the clergy. See id. , at 722–723.

															But no comparable “historic and substantial”
tradition supports Montana’s decision to disqualify religious
schools from government aid. In the founding era and the early 19th
century, governments provided financial support to private schools,
including denominational ones. “Far from prohibiting such support,
the early state constitutions and statutes actively encouraged this
policy.” L. Jorgenson, The State and the Non-Public School,
1825–1925, p. 4 (1987); e.g., R. Gabel, Public Funds for
Church and Private Schools 210, 217–218, 221, 241–243 (1937); C.
Kaestle, Pillars of the Republic: Common Schools and American
Society, 1760–1860, pp. 166–167 (1983). Local governments provided
grants to private schools, including religious ones, for the
education of the poor. M. McConnell, et al., Religion and the
Constitution 318–319 (4th ed. 2016). Even States with bans on
government-supported clergy, such as New Jersey, Pennsylvania, and
Georgia, provided various forms of aid to religious schools.
 See Kaestle, supra , at 166–167; Gabel, supra ,
at 215–218, 241–245, 372–374; cf. Locke , 540 U. S., at
723. Early federal aid (often land grants) went to religious
schools. McConnell, supra , at 319. Congress provided support
to denominational schools in the District of Columbia until 1848, ibid. , and Congress paid churches to run schools for
American Indians through the end of the 19th century, see Quick
Bear v. Leupp , 210 U.S.
50 , 78 (1908); Gabel, supra , at 521–523. After the Civil
War, Congress spent large sums on education for emancipated
freedmen, often by supporting denominational schools in the South
through the Freedmen’s Bureau. McConnell, supra , at
323.[ 3 ]

															The Department argues that a tradition against state support for religious schools arose in the
second half of the 19th century, as more than 30 States—including
Montana—adopted no-aid provisions. See Brief for Respondents 40–42
and App. D. Such a development, of course, cannot by itself
establish an early American tradition. Justice Sotomayor questions
our reliance on aid provided during the same era by the Freedmen’s
Bureau, post , at 10 (dissenting opinion), but we see no
inconsistency in recognizing that such evidence may reinforce an
early practice but cannot create one. In addition, many of the
no-aid provisions belong to a more checkered tradition shared with
the Blaine Amendment of the 1870s. That proposal—which Congress
nearly passed—would have added to the Federal Constitution a
provision similar to the state no-aid provisions, prohibiting
States from aiding “sectarian” schools. See Mitchell v. Helms , 530 U.S.
793 , 828 (2000) (plurality opinion). “[I]t was an open secret
that ‘sectarian’ was code for ‘Catholic.’ ” Ibid. ; see
Jorgenson, supra , at 70. The Blaine Amendment was “born of
bigotry” and “arose at a time of pervasive hostility to the
Catholic Church and to Catholics in general”; many of its state
counterparts have a similarly “shameful pedigree.” Mitchell ,
530 U. S., at 828–829 (plurality opinion); see Jorgenson, supra , at 69–70, 216; Jeffries & Ryan, A Political
History of the Establishment Clause, 100 Mich. L. Rev. 279, 301–305
(2001). The no-aid provisions of the 19th century hardly evince a
tradition that should inform our understanding of the Free Exercise
Clause.

															The Department argues that several States have
rejected referendums to overturn or limit their no-aid provisions,
and that Montana even re-adopted its own in the 1970s, for reasons
unrelated to anti-Catholic bigotry. See Brief for Respondents 20,
42. But, on the other side of the ledger, many States
today—including those with no-aid provisions—provide support to
religious schools through vouchers, scholarships, tax credits, and
other measures. See Brief for Oklahoma et al. as Amici
Curiae 29–31, 33–35; Brief for Petitioners 5. According to
petitioners, 20 of 37 States with no-aid provisions allow religious
options in publicly funded scholarship programs, and almost all
allow religious options in tax credit programs. Reply Brief 22, n.
9.

															All to say, we agree with the Department that
the historical record is “complex.” Brief for Respondents 41. And
it is true that governments over time have taken a variety of
approaches to religious schools. But it is clear that there is no
“historic and substantial” tradition against aiding such schools
comparable to the tradition against state-supported clergy invoked
by Locke .

															C

															Two dissenters would chart new courses.
Justice Sotomayor would grant the government “some room” to “single
. . . out” religious entities “for exclusion,” based on what she
views as “the interests embodied in the Religion Clauses.” Post, at 8, 9 (quoting Trinity Lutheran , 582
U. S., at ___, ___ (Sotomayor, J., dissenting) (slip op., at
8, 9)). Justice Breyer, building on his solo opinion in Trinity
Lutheran , would adopt a “flexible, context-specific approach”
that “may well vary” from case to case. Post , at 14, 16; see Trinity Lutheran , 582 U. S., at ___ (Breyer, J.,
concurring in judgment). As best we can tell, courts applying this
approach would contemplate the particular benefit and restriction
at issue and discern their relationship to religion and society,
taking into account “context and consequences measured in light of
[the] purposes” of the Religion Clauses. Post , at 16–17, 19
(quoting Van Orden v. Perry , 545
U.S. 677 , 700 (2005) (Breyer, J., concurring in judgment)).
What is clear is that Justice Breyer would afford much freer rein
to judges than our current regime, arguing that “there is ‘no
test-related substitute for the exercise of legal judgment.’ ” Post , at 19 (quoting Van Orden , 545 U. S., at
700 (opinion of Breyer, J.)).

															The simplest response is that these dissents
follow from prior separate writings, not from the Court’s decision
in Trinity Lutheran or the decades of precedent on which it
relied. These precedents have “repeatedly confirmed” the
straightforward rule that we apply today: When otherwise eligible
recipients are disqualified from a public benefit “solely because
of their religious character,” we must apply strict scrutiny. Trinity Lutheran , 582 U. S., at ___–___ (slip op., at
6–10). This rule against express religious discrimination is no
“doctrinal innovation.” Post , at 13 (opinion of Breyer, J.).
Far from it. As Trinity Lutheran explained, the rule is
“unremarkable in light of our prior decisions.” 582 U. S., at
___ (slip op., at 10).

															For innovation, one must look to the dissents.
Their “room[y]” or “flexible” approaches to discrimination against
religious organizations and observers would mark a significant
departure from our free exercise precedents. The protections of the
Free Exercise Clause do not depend on a “judgment-by-judgment
analysis” regarding whether discrimination against religious
adherents would somehow serve ill-defined interests. Cf. Medellín v. Texas , 552 U.S.
491 , 514 (2008).

															D

															Because the Montana Supreme Court applied the
no-aid provision to discriminate against schools and parents based
on the religious character of the school, the “strictest scrutiny”
is required. Supra , at 9, 12 (quoting Trinity
Lutheran , 582 U. S., at ___ (slip op., at 11)). That
“stringent standard,” id., at ___ (slip op., at 14), is not
“watered down but really means what it says,” Lukumi , 508
U. S., at 546 (internal quotation marks and alterations
omitted). To satisfy it, government action “must advance ‘interests
of the highest order’ and must be narrowly tailored in pursuit of
those interests.” Ibid. (quoting McDaniel , 435
U. S., at 628).

															The Montana Supreme Court asserted that the
no-aid provision serves Montana’s interest in separating church and
State “more fiercely” than the Federal Constitution. 393 Mont., at
467, 435 P. 3d, at 614. But “that interest cannot qualify as
compelling” in the face of the infringement of free exercise here. Trinity Lutheran , 582 U. S., at ___ (slip op., at 14).
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.” Ibid. (quoting Widmar v. Vincent , 454 U.S.
263 , 276 (1981)).

															The Department, for its part, asserts that the
no-aid provision actually promotes religious freedom. In the
Department’s view, the no-aid provision protects the religious
liberty of taxpayers by ensuring that their taxes are not directed
to religious organizations, and it safeguards the freedom of
religious organizations by keeping the government out of their
operations. See Brief for Respondents 17–23. An infringement of
First Amendment rights, however, cannot be justified by a State’s
alternative view that the infringement advances religious liberty.
Our federal system prizes state experimentation, but not “state
experimentation in the suppression of free speech,” and the same
goes for the free exercise of religion. Boy Scouts of
America v. Dale , 530 U.S.
640 , 660 (2000).

															Furthermore, we do not see how the no-aid
provision promotes religious freedom. As noted, this Court has
repeatedly upheld government programs that spend taxpayer funds on
equal aid to religious observers and organizations, particularly
when the link between government and religion is attenuated by
private choices. A school, concerned about government involvement
with its religious activities, might reasonably decide for itself
not to participate in a government program. But we doubt that the
school’s liberty is enhanced by eliminating any option to
participate in the first place.

															The Department’s argument is especially
unconvincing because the infringement of religious liberty here
broadly affects both religious schools and adherents. Montana’s
no-aid provision imposes a categorical ban—“broadly and strictly”
prohibiting “ any type of aid” to religious schools. 393
Mont., at 462–463, 435 P. 3d, at 611. This prohibition is far
more sweeping than the policy in Trinity Lutheran , which
barred churches from one narrow program for playground
resurfacing—causing “in all likelihood” only “a few extra scraped
knees.” 582 U. S., at ___ (slip op., at 15).

															And the prohibition before us today burdens not
only religious schools but also the families whose children attend
or hope to attend them. Drawing on “enduring American tradition,”
we have long recognized the rights of parents to direct “the
religious upbringing” of their children. Wisconsin v. Yoder , 406 U.S.
205 , 213–214, 232 (1972). Many parents exercise that right by
sending their children to religious schools, a choice protected by
the Constitution. See Pierce v. Society of Sisters , 268 U.S.
510 , 534–535 (1925). But the no-aid provision penalizes that
decision by cutting families off from otherwise available benefits
if they choose a religious private school rather than a secular
one, and for no other reason.

															The Department also suggests that the no-aid
provision advances Montana’s interests in public education.
According to the Department, the no-aid provision safeguards the
public school system by ensuring that government support is not
diverted to private schools. See Brief for Respondents 19, 25. But,
under that framing, the no-aid provision is fatally underinclusive
because its “proffered objectives are not pursued with respect to
analogous nonreligious conduct.” Lukumi , 508 U. S., at
546. On the Department’s view, an interest in public education is
undermined by diverting government support to any private
school, yet the no-aid provision bars aid only to religious ones. A law does not advance “an interest of the highest order when
it leaves appreciable damage to that supposedly vital interest
unprohibited.” Id. , at 547 (internal quotation marks and
alterations omitted). Montana’s interest in public education cannot
justify a no-aid provision that requires only religious private
schools to “bear [its] weight.” Ibid. A State need not subsidize private education.
But once a State decides to do so, it cannot disqualify some
private schools solely because they are religious.

															III

															The Department argues that, at the end of the
day, there is no free exercise violation here because the Montana
Supreme Court ultimately eliminated the scholarship program
altogether. According to the Department, now that there is no
program, religious schools and adherents cannot complain that they
are excluded from any generally available benefit.

															Two dissenters agree. Justice Ginsburg reports
that the State of Montana simply chose to “put all private school
parents in the same boat” by invalidating the scholarship program, post , at 5–6, and Justice Sotomayor describes the decision
below as resting on state law grounds having nothing to do with the
federal Free Exercise Clause, see post , at 1, 6.

															The descriptions are not accurate. The Montana
Legislature created the scholarship program; the Legislature never
chose to end it, for policy or other reasons. The program was
eliminated by a court, and not based on some innocuous principle of
state law. Rather, the Montana Supreme Court invalidated the
program pursuant to a state law provision that expressly
discriminates on the basis of religious status. The Court applied
that provision to hold that religious schools were barred from
participating in the program. Then, seeing no other “mechanism” to
make absolutely sure that religious schools received no aid, the
court chose to invalidate the entire program. 393 Mont., at
466–468, 435 P. 3d, at 613–614.

															The final step in this line of reasoning
eliminated the program, to the detriment of religious and
non-religious schools alike. But the Court’s 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. Had the Court recognized that this was, indeed, “one of
those cases” in which application of the no-aid provision “would
violate the Free Exercise Clause,” id. , at 468, 435 P. 3d,
at 614, the Court would not have proceeded to find a violation of
that provision. And, in the absence of such a state law violation,
the Court would have had no basis for terminating the program.
Because the elimination of the program flowed directly from the
Montana Supreme Court’s failure to follow the dictates of federal
law, it cannot be defended as a neutral policy decision, or as
resting on adequate and independent state law grounds.[ 4 ]

															The Supremacy Clause provides that “the Judges
in every State shall be bound” by the Federal Constitution, “any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” Art. VI, cl. 2. “[T]his Clause creates
a rule of decision” directing state courts that they “must not give
effect to state laws that conflict with federal law[ ].” Armstrong v. Exceptional Child Center, Inc. , 575 U.S.
320, 324 (2015). Given the conflict between the Free Exercise
Clause and the application of the no-aid provision here, the
Montana Supreme Court should have “disregard[ed]” the no-aid
provision and decided this case “conformably to the [C]onstitution”
of the United States. Marbury v. Madison , 1 Cranch
137, 178 (1803). That “ supreme law of the land” condemns
discrimination against religious schools and the families whose
children attend them. Id. , at 180. They are “member[s] of
the community too,” and their exclusion from the scholarship
program here is “odious to our Constitution” and “cannot stand.” Trinity Lutheran , 582 U. S., at ___, ___ (slip op., at
11, 15).[ 5 ]

															*  *  *

															The judgment of the Montana Supreme Court is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.

															It is so ordered. Notes 1 The Legislature provided
the same tax credit to taxpayers who donate to public schools for
the purpose of supporting innovative educational programs or curing
technology deficiencies at such schools. See Mont. Code Ann.
§15–30–3110 (2019). 2 Justice Sotomayor argues
that the Montana Supreme Court “expressly declined to reach any
federal issue.” Post , at 6 (dissenting opinion). Not so. As
noted, supra , at 5, the Montana Supreme Court recognized
that certain applications of the no-aid provision could “violate
the Free Exercise Clause.” 393 Mont. 446, 468, 435 P.3d 603, 614
(2018). But the Court expressly concluded that “this is not one of
those cases.” Ibid. 3 Justice Breyer sees “no
meaningful difference” between concerns animating bans on support
for clergy and bans on support for religious schools. Post ,
at 8–10. But evidently early American governments did. See supra, at 14.  Justice Breyer contests particular
examples but acknowledges that some bans on clergy support did not
bar certain “sponsorship” of religious schools. Post ,
at 10. And, central to the issue here, he certainly
does not identify a consistent early tradition, of the sort invoked
in Locke , against support for religious
schools.  Virginia’s opposition to establishing university
theology professorships and chartering theological seminaries, see ibid. , do not fit the bill. Buckley, After Disestablishment:
Thomas Jefferson’s Wall of Separation in Antebellum Virginia, 61 J.
So. Hist. 445, 452–453 (1995).  Justice Breyer also invokes
Madison’s objections to the Virginia Assessment Bill, post ,
at 8–9, but Madison objected in part because the Bill provided
special support to certain churches and clergy, thereby
“violat[ing] equality by subjecting some to peculiar burdens.”
Memorial and Remonstrance Against Religious Assessments, Art. 4,
reprinted in Everson , 330 U. S., at 66 (appendix to
dissenting opinion of Rutledge, J.); see V. Muñoz, God and the
Founders: Madison, Washington, and Jefferson 21–22, 27 (2009). It
is far from clear that the same objections extend to programs that
provide equal support to all private primary and secondary schools.
If anything, excluding religious schools from such programs would
appear to impose the “peculiar burdens” feared by
Madison. 4 Justice Sotomayor worries
that, in light of our decision, the Montana Supreme Court must
“order the State to recreate” a scholarship program that “no longer
exists.” Post , at 6 (dissenting opinion). But it was the
Montana Supreme Court that eliminated the program, in the decision
below, which remains under review. Our reversal of that decision
simply restores the status quo established by the Montana
Legislature before the Court’s error of federal law. We do not
consider any alterations the Legislature may choose to make in the
future. 5 In light of this holding,
we do not address petitioners’ claims that the no-aid provision, as
applied, violates the Equal Protection Clause or the Establishment
Clause. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Justice Thomas, with whom Justice Gorsuch
joins, concurring.

															The Court correctly concludes that Montana’s
no-aid provision expressly discriminates against religion in
violation of the Free Exercise Clause. And it properly provides
relief to Montana religious schools and the petitioners who wish to
use Montana’s scholarship program to send their children to such
schools. I write separately to explain how this Court’s
interpretation of the Establishment Clause continues to hamper free
exercise rights. Until we correct course on that interpretation,
individuals will continue to face needless obstacles in their
attempts to vindicate their religious freedom.

															I

															A

															This case involves the Free Exercise Clause,
not the Establishment Clause. But as in all cases involving a state
actor, the modern understanding of the Establishment Clause is a
“brooding omnipresence,” Southern Pacific Co. v. Jensen , 244 U.S.
205 , 222 (1917) (Holmes, J., dissenting), ever ready to be used
to justify the government’s infringement on religious freedom.
Under the modern, but erroneous, view of the Establishment Clause,
the government must treat all religions equally and treat religion
equally to nonreligion. As this Court stated in its first case
applying the Establishment Clause to the States, the government
cannot “pass laws which aid one religion, aid all religions, or
prefer one religion over another.” Everson v. Board of
Ed. of Ewing , 330 U.S.
1 , 15 (1947); see also post , at 3 (Breyer, J.,
dissenting). This “equality principle,” the theory goes, prohibits
the government from expressing any preference for religion—or even
permitting any signs of religion in the governmental realm. Thus,
when a plaintiff brings a free exercise claim, the government may
defend its law, as Montana did here, on the ground that the law’s
restrictions are required to prevent it from “establishing”
religion.

															This understanding of the Establishment Clause
is unmoored from the original meaning of the First Amendment. As I
have explained in previous cases, at the founding, the Clause
served only to “protec[t] States, and by extension their citizens,
from the imposition of an established religion by the Federal Government.” Zelman v. Simmons-Harris , 536 U.S.
639 , 678 (2002) (Thomas, J., concurring) (emphasis added); see
also, e.g. , Town of Greece v. Galloway , 572 U.S.
565 , 604–607 (2014) (Thomas, J., concurring in part and
concurring in judgment); Elk Grove Unified School Dist. v. Newdow , 542 U.S.
1 , 49–50 (2004) (Thomas, J., concurring in judgment). Under
this view, the Clause resists incorporation against the States. See Town of Greece , 572 U. S., at 604 (opinion of Thomas,
J.).

															There is mixed historical evidence concerning
whether the Establishment Clause was understood as an individual
right at the time of the Fourteenth Amendment’s ratification. Id. , at 607–608. Even assuming that the Clause creates a
right and that such a right could be incorporated, however, it
would only protect against an “establishment” of religion as
understood at the founding, i.e. , “ ‘coercion of
religious orthodoxy and of financial support by force of law and
threat of penalty.’ ” Id. , at 608 (quoting Lee v. Weisman , 505 U.S.
577 , 640 (1992) (Scalia, J., dissenting); emphasis deleted); American Legion v. American Humanist Assn. , 588
U. S. ___, ___ (2019) (Thomas, J., concurring in judgment)
(slip op., at 3); see also McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of
Religion, 44 Wm. & Mary L. Rev. 2105, 2131–2181 (2003);
McConnell, Coercion: The Lost Element of Establishment, 27 Wm.
& Mary L. Rev. 933, 936–939 (1986).[ 1 ]

															Thus, the modern view, which presumes that
States must remain both completely separate from and virtually
silent on matters of religion to comply with the Establishment
Clause, is fundamentally incorrect. Properly understood, the
Establishment Clause does not prohibit States from favoring
religion. They can legislate as they wish, subject only to the
limitations in the State and Federal Constitutions. See Muñoz, The
Original Meaning of the Establishment Clause and the Impossibility
of Its Incorporation, 8 U. Pa. J. Const. L. 585, 632
(2006).

															B

															I have previously made these points in
Establishment Clause cases to show that the Clause likely has no
application to the States or, if it is capable of incorporation,
that the Court employs a far broader test than the Clause’s
original meaning. See, e.g. , American Legion , 588
U. S., at ___ (opinion concurring in judgment) (slip op., at
1); Town of Greece , 572 U. S., at 604 (opinion
concurring in part and concurring in judgment). But the Court’s
wayward approach to the Establishment Clause also impacts its free
exercise jurisprudence. Specifically, its overly expansive
understanding of the former Clause has led to a correspondingly
cramped interpretation of the latter.

															Under this Court’s current approach, state and
local governments may rely on the Establishment Clause to justify
policies that others wish to challenge as violations of the Free
Exercise Clause. Once the government demonstrates that its policy
is required for compliance with the Constitution, any claim
that the policy infringes on free exercise cannot survive. A few
examples suffice to illustrate this practice.

															Of most relevance to this case is Locke v. Davey , 540 U.S.
712 (2004), which Montana principally relies on to justify its
discriminatory law. In Locke , the Court held that
prohibiting a student from using a generally available state
scholarship to pursue a degree in devotional theology did not
violate the student’s free exercise rights. This was so, the Court
said, in part because it furthered the State’s “antiestablishment
interests” in avoiding the education of religious ministers. Id. , at 722. But no antiestablishment interests, properly
understood, were at issue in Locke . The State neither
coerced students to study devotional theology nor conscripted
taxpayers into supporting any form of orthodoxy. Thus, as I have
explained, Locke incorrectly interpreted the Establishment
Clause and should not impact free exercise challenges. Trinity
Lutheran Church of Columbia , Inc. v. Comer , 582
U. S. ___, ___ (2017) (Thomas, J., concurring). Yet, as
Montana’s proffered justification for its law shows, governments
continue to rely on Locke ’s improper understanding of
“antiestablishment interests” to defend against free exercise
challenges. See Brief for State of Colorado et al. as Amici
Curiae 3, 10–12 (arguing that Locke justifies the 38
state constitutional provisions that are similar to Montana’s); see
also Trinity Lutheran Church of Columbia , Inc. v. Pauley , 788 F.3d 779, 785 (CA8 2015), rev’d and remanded,
582 U. S. ___; Eulitt v. Maine , 386 F.3d 344 , 354 (CA1 2004); post , at 5–8 (Breyer, J.,
dissenting); post , at 9–10 (Sotomayor, J., dissenting).

															The Court has also repeatedly stated that a
government has a compelling interest in avoiding an Establishment
Clause violation altogether, which “may justify” abridging other
First Amendment freedoms. See Good News Club v. Milford
Central School , 533 U.S.
98 , 112 (2001); Lamb’s Chapel v. Center Moriches
Union Free School Dist. , 508 U.S.
384 , 394 (1993); Widmar v. Vincent , 454 U.S.
263 , 271 (1981). Unsurprisingly, governmental employers have
relied on these pronouncements to defeat challenges from employees
who alleged violations of their First Amendment rights. See, e.g. , Berry v. Department of Social Servs. , 447 F.3d 642 , 650–651 (CA9 2006); Knight v. Connecticut Dept. of Public Health , 275 F.3d 156 , 166 (CA2 2001); Marchi v. Board of
Cooperative Ed. Servs. of Albany , 173 F.3d 469 , 475 (CA2 1999).

															Finally, this Court’s infamous test in Lemon v. Kurtzman , 403 U.S.
602 (1971), has sometimes been understood to prohibit
governmental practices that have the effect of endorsing religion.
See Lynch v. Donnelly , 465 U.S.
668 , 692 (1984) (O’Connor, J., concurring). This, too,
presupposes that the Establishment Clause prohibits the government
from favoring religion or taking steps to promote it. But as
described supra , at 2–3, the Establishment Clause does
nothing of the sort. The concern with avoiding endorsement has
nevertheless been used to prohibit voluntary practices that
potentially implicate free exercise rights, with courts and
governments going so far as to make the “remarkable” suggestion
“that even while off duty, a teacher or coach cannot engage in any
outward manifestation of religious faith.” Kennedy v. Bremerton School Dist. , 586 U. S. ___, ___ (2019) (slip
op., at 5) (Alito, J., concurring in denial of certiorari); see Santa Fe Independent School Dist. v. Doe , 530 U.S.
290 , 308 (2000) (voluntary decision to begin football games
with a prayer violated the Establishment Clause); see also Kennedy v. Bremerton School Dist. , 869 F.3d 813, 831
(CA9 2017) (M. Smith, J., concurring) (coach’s decision to lead
voluntary prayer after football games); Walz v. Egg
Harbor Twp. Bd. of Ed. , 342 F.3d 271 , 280 (CA3 2003) (student’s decision to distribute
small gifts with religious messages to classmates).

															II

															The Court’s current understanding of the
Establishment Clause actually thwarts, rather than promotes, equal
treatment of religion. Under a proper understanding of the
Establishment Clause, robust and lively debate about the role of
religion in government is permitted, even encouraged, at the state
and local level. The Court’s distorted view of the Establishment
Clause, however, removes the entire subject of religion from the
realm of permissible governmental activity, instead mandating
strict separation.

															This interpretation of the Establishment Clause
operates as a type of content-based restriction on the government.
The Court has interpreted the Free Speech Clause to prohibit
content-based restrictions because they “value some forms of speech
over others,” City of Ladue v. Gilleo , 512 U.S.
43 , 60 (1994) (O’Connor, J., concurring), thus tending to “tilt
public debate in a preferred direction,” Sorrell v. IMS
Health Inc. , 564 U.S.
552 , 578–579 (2011). The content-based restriction imposed by
this Court’s Establishment Clause jurisprudence operates no
differently. It 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.

															Historical evidence suggests that many advocates
for this separationist view were originally motivated by hostility
toward certain disfavored religions. See P. Hamburger, Separation
of Church and State 391–454 (2002). And this Court’s adoption of a
separationist interpretation has itself sometimes bordered on
religious hostility. Justice Black, well known for his role in
formulating the Court’s modern Establishment Clause jurisprudence,
once described Catholic petitioners as “powerful sectarian
religious propagandists” “looking toward complete domination and
supremacy” of their “preferences and prejudices.” Board of Ed.
of Central School Dist. No. 1 v. Allen , 392 U.S.
236 , 251 (1968) (dissenting opinion). Other Members of the
Court have characterized religions as “divisive forces.” Edwards v. Aguillard , 482 U.S.
578 , 584 (1987) (internal quotation marks omitted); Board of
Ed. of Westside Community Schools (Dist. 66) v. Mergens , 496 U.S.
226 , 287 (1990) (Stevens, J., dissenting) (internal quotation
marks omitted); Illinois ex rel. McCollum v. Board of Ed.
of School Dist. No. 71 , Champaign Cty. , 333 U.S.
203 , 231 (1948) (Frankfurter, J., concurring). And the Court
once described a statute permitting employees to request
accommodations to avoid work on the Sabbath as “arm[ing]” religious
employees with the “absolute and unqualified right” to pursue their
religion “over all other . . . interests.” Estate of
Thornton v. Caldor , Inc. , 472
U.S. 703 , 709–711 (1985). The siren song of religion is
apparently so strong that we once held that public school teachers
cannot provide assistance at parochial schools, lest they “subtly
(or overtly) conform their instruction to the environment in which
they teach.” School Dist. of Grand Rapids v. Ball , 473 U.S.
373 , 388 (1985), overruled by Agostini v. Felton , 521 U.S.
203 , 235 (1997). In the Court’s view, “[t]he ‘atmosphere’ of a
Catholic school ha[d] such power to influence the unsuspecting mind
that it may move even public school . . . specialists to
‘conform’—though their only contact with the school is to walk down
its halls.” McConnell, Religious Freedom at a Crossroads, 59 U.
Chi. L. Rev. 115, 122 (1992).

															Although such hostility may not be overtly
expressed by the Court any longer, manifestations of this “trendy
disdain for deep religious conviction” assuredly live on. Locke , 540 U. S., at 733 (Scalia, J., dissenting). They
are evident in the fact that, unlike other constitutional rights,
the mere exposure to religion can render an “ ‘offended
observer’ ” sufficiently injured to bring suit against the
government, American Legion , 588 U. S., at ___
(Gorsuch, J., concurring in judgment) (slip op., at 2), even if he
has not been coerced in any way to participate in a religious
practice, Lee , 505 U. S., at 584; Engel v. Vitale , 370 U.S.
421 , 430 (1962).[ 2 ] We also
see them in the special privilege of taxpayer standing in
Establishment Clause challenges, even though such suits directly
contravene Article III’s restrictions on standing. See Hein v. Freedom From Religion Foundation , Inc. , 551 U.S.
587 , 618 (2007) (Scalia, J., concurring in judgment); see also Bowen v. Kendrick , 487 U.S.
589 , 618–620 (1988); Flast v. Cohen , 392 U.S.
83 , 102–104 (1968). And they persist in the repeated
denigration of those who continue to adhere to traditional moral
standards, as well as laws even remotely influenced by such
standards, as outmoded at best and bigoted at worst. See Masterpiece Cakeshop , Ltd. v. Colorado Civil
Rights Comm’n , 584 U. S. ___, ___ (2018) (Thomas, J.,
concurring in part and concurring in judgment) (slip op., at 14); Obergefell v. Hodges , 576 U.S. 644, 712 (2015)
(Roberts, C. J., dissenting). So long as this hostility
remains, fostered by our distorted understanding of the
Establishment Clause, free exercise rights will continue to
suffer.

															*  *  *

															As I have recently explained, this Court has
an unfortunate tendency to prefer certain constitutional rights
over others. See United States v. Sineneng-Smith , ante , at 6 (Thomas, J., concurring). The Free Exercise
Clause, although enshrined explicitly in the Constitution, rests on
the lowest rung of the Court’s ladder of rights, and precariously
so at that. Returning the Establishment Clause to its proper scope
will not completely rectify the Court’s disparate treatment of
constitutional rights, but it will go a long way toward allowing
free exercise of religion to flourish as the Framers intended. I
look forward to the day when the Court takes up this task in
earnest. Notes 1 A party wishing to expand
the scope of the Establishment Clause beyond its meaning at the
founding carries the burden of demonstrating that this broader
reading is historically sound. Town of Greece v. Galloway , 572 U.S.
565 , 607–608 (2014) (Thomas, J., concurring in part and
concurring in judgment). 2 This stands in striking
contrast to the Court’s view in the free speech context that “the
burden normally falls upon the viewer” to avoid offense “simply by
averting his eyes.” Hill v. Colorado , 530 U.S.
703 , 753, n. 3 (2000) (Scalia, J., dissenting) (quoting Erznoznik v. Jacksonville , 422
U.S. 205 , 210–211 (1975); quotation altered)). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Justice Alito, concurring.

															I join the opinion of the Court in full. The
basis of the decision below was a Montana constitutional provision
that, according to the Montana Supreme Court, forbids parents from
participating in a publicly funded scholarship program simply
because they send their children to religious schools. Regardless
of the motivation for this provision or its predecessor, its
application here violates the Free Exercise Clause.

															Nevertheless, the provision’s origin is relevant
under the decision we issued earlier this Term in Ramos v. Louisiana , 590 U. S. ___ (2020). The question in Ramos was whether Louisiana and Oregon laws allowing
non-unanimous jury verdicts in criminal trials violated the Sixth
Amendment. The Court held that they did, emphasizing that the
States originally adopted those laws for racially discriminatory
reasons. See id. , at ___–___ (slip op., at 1–3). The role of
the Ku Klux Klan was highlighted. See ibid .; see also id. , at ___ (Sotomayor, J., concurring in part) (slip op.,
at 4); id. , at ___ (Kavanaugh, J., concurring in part) (slip
op., at 12).

															I argued in dissent that this original
motivation, though deplorable, had no bearing on the laws’
constitutionality because such laws can be adopted for
non-discriminatory reasons, and “both States readopted their rules
under different circumstances in later years.” Id. , at ___
(slip op., at 3). But I lost, and Ramos is now precedent. If
the original motivation for the laws mattered there, it certainly
matters here.

															The origin of Montana’s “no-aid” provision,
Mont. Const., Art. X, §6(1) (1972), is emphasized in
petitioners’ brief and in the briefs of numerous supporting amici . See Brief for Petitioners 31–45; Brief for United
States as Amicus Curiae 1–2, 25; Brief for Center for
Constitutional Jurisprudence as Amicus Curiae 10–12; Brief
for Pioneer Institute, Inc., as Amicus Curiae 5–17; Brief
for Cato Institute as Amicus Curiae 2; Brief for State of
Oklahoma et al. as Amici Curiae 16; Brief for Montana
Catholic School Parents et al. as Amici Curiae 21–25;
Brief for Senator Steve Daines et al. as Amici Curiae 1–27 (Sen. Daines Brief ); Brief for Becket Fund for Religious
Liberty as Amicus Curiae 4–20 (Becket Fund Brief );
Brief for the Rutherford Institute as Amicus Curiae 2–10;
Brief for Georgia Goal Scholarship Program, Inc., as Amicus
Curiae 1–5, 16–21; Brief for Liberty Justice Center et al.
as Amici Curiae 16–17; Brief for Alliance for Choice in
Education as Amicus Curiae 4–8; Brief for Independence
Institute as Amicus Curiae 4–26 (Independence Institute
Brief ); Brief for Jewish Coalition for Religious Liberty as Amicus Curiae 1–5; Brief for Rusty Bowers et al. as Amici Curiae 8–9; Brief for Center for Education Reform
et al. as Amici Curiae 21–27 (CER Brief ); Brief
for Montana Family Foundation as Amicus Curiae 9–13; Brief
for Arizona Christian School Tuition Organization et al. as Amici Curiae 14–22; Brief for Justice and Freedom Fund
et al. as Amici Curiae 22–23; Brief for 131 Current and
Former State Legislators as Amici Curiae 2–10.

															These briefs, most of which were not filed by
organizations affiliated with the Catholic Church, point out that
Montana’s provision was modeled on the failed Blaine Amendment to
the Constitution of the United States. Named after House Speaker
James Blaine, the Congressman who introduced it in 1875, the
amendment was prompted by virulent prejudice against immigrants,
particularly Catholic immigrants. In effect, the amendment would
have “bar[red] any aid” to Catholic and other “sectarian” schools. Mitchell v. Helms , 530 U.S.
793 , 828 (2000) (plurality opinion). As noted in a publication
from the United States Commission on Civil Rights, a prominent
supporter of this ban was the Ku Klux Klan.[ 1 ]

															The Blaine Amendment was narrowly defeated,
passing in the House but falling just short of the two-thirds
majority needed in the Senate to refer the amendment to the States.
See 4 Cong. Rec. 5191–5192 (1876) (House vote); id. , at 5595
(28 yeas, 16 nays in the Senate). Afterwards, most States adopted
provisions like Montana’s to achieve the same objective at the
state level, often as a condition of entering the Union.
Thirty-eight States still have these “little Blaine Amendments”
today. See App. D to Brief for Respondents.

															This history is well-known and has been
recognized in opinions of this Court. See, e.g. , Locke v. Davey , 540 U.S.
712 , 723, n. 7 (2004); Mitchell , 530 U. S., at
828–829 (plurality opinion); see also ante , at 15–16; Zelman v. Simmons- Harris , 536
U.S. 639 , 720–721 (2002) (Breyer, J., dissenting). But given
respondents’ and one dissent’s efforts to downplay it in
contravention of Ramos , see Brief for Respondents 16–23; post , at 4–5, n. 2 (Sotomayor, J., dissenting), it
deserves a brief retelling.

															A wave of immigration in the mid-19th century,
spurred in part by potato blights in Ireland and Germany,
significantly increased this country’s Catholic
population.[ 2 ] Nativist fears
increased with it. An entire political party, the Know Nothings,
formed in the 1850s “to decrease the political influence of
immigrants and Catholics,” gaining hundreds of seats in Federal and
State Government.[ 3 ]

															Catholics were considered by such groups not as
citizens of the United States, but as “soldiers of the Church of
Rome,”[ 4 ] who “would attempt to
subvert representative government.”[ 5 ] Catholic education was a particular concern. As one
series of newspaper articles argued, “ ‘Popery is the natural
enemy of general education. . . . If it is
establishing schools, it is to make them prisons of the
youthful intellect of the country.’ ” C. Glenn, The Myth of
the Common School 69 (1988) (Glenn) (quoting S. Morse, Foreign
Conspiracy Against the Liberties of the United States (1835)). With
a Catholic school breaking ground in New York City, the New York
Times ran an article titled “Sectarian Education. Anti-Public
School Crusade. Aggressive Attitude of the Roman Catholic
Clergy—The Terrors of the Church Threatened.” N. Y. Times,
Aug. 24, 1873, p. 8. The project, the article concluded, would
cause “intense anxiety by all who are interested in upholding the
admirable system of public school education.” Ibid .

															The feelings of the day are perhaps best
encapsulated by this famous cartoon, published in Harper’s Weekly
in 1871, which depicts Catholic priests as crocodiles slithering
hungrily toward American children as a public school crumbles in
the background:

															The resulting wave of state laws withholding
public aid from “sectarian” schools cannot be understood outside
this context. Indeed, there are stronger reasons for considering
original motivations here than in Ramos because, unlike the
neutral language of Louisiana’s and Oregon’s non- unanimity rules,
Montana’s no-aid provision retains the bigoted code language used
throughout state Blaine Amendments.

															The failed Blaine Amendment would have
prohibited any public funds or lands devoted to schooling from
“ever be[ing] under the control of any religious sect.” 4 Cong.
Rec. 205 (1875). As originally adopted, Montana’s Constitution
prohibited the state and local governments from “ever mak[ing,]
directly or indirectly, any appropriation” for “any sectarian
purpose” or “to aid in the support of any school . . .
controlled in whole or in part by any church, sect or denomination
whatever.” Mont. Const., Art. XI, §8 (1889). At the time, “it was
an open secret that ‘sectarian’ was code for ‘Catholic.’ ” Mitchell , 530 U. S., at 828 (plurality opinion).
Dictionaries defined a “sectarian” as a member “of a party in
religion which has separated itself from the established church, or
which holds tenets different from those of the prevailing
denomination in a kingdom or state”—a heretic. N. Webster, An
American Dictionary of the English Language (1828); see also
Independence Institute Brief 9–16 (collecting several similar
definitions). Newspapers throughout the country, including in
Montana, used the word in similarly pejorative fashion. See id., at 17–26 (collecting several articles). The term was
likewise used against Mormons and Jews.[ 6 ]

															Backers of the Blaine Amendment either held
nativist views or capitalized on them. When Blaine introduced the
amendment, The Nation reported that it was “a Constitutional
amendment directed against the Catholics”—while surmising that
Blaine, whose Presidential ambitions were known, sought “to use it
in the campaign to catch anti- Catholic votes.”[ 7 ] The amendment had its intended galvanizing
effect. “Its popularity was so great” that “even congressional
Democrats,” who depended on Catholic votes, “were expected to
support it,” and the congressional floor debates were rife with
anti-Catholic sentiment, including “a tirade against Pope Pius
IX.”[ 8 ]

															Montana’s no-aid provision was the result of
this same prejudice. When Congress allowed Montana into the Union
in 1889, it still included prominent supporters of the failed
Blaine Amendment. See Sen. Daines Brief 10–13. The Act enabling
Montana to become a State required “[t]hat provision shall be made
for the establishment and maintenance of systems of public schools
. . . free from sectarian control.” Act of Feb. 22, 1889,
§4, 25Stat. 677; see also Becket Fund Brief 17–18 (quoting one
Senator’s description of the Act as “ ‘completing the
unfinished work of the failed Blaine Amendment’ ”). Montana
thereafter adopted its constitutional rule against public funding
for any school “controlled” by a “sect.” Mont. Const., Art. XI, §8
(1889). There appears to have been no doubt which schools that
meant. As petitioners show, Montana’s religious schools—and its
private schools in general—were predominantly Catholic, see Brief
for Petitioners 42, and n. 41, and anti-Catholicism was alive in
Montana too. See, e.g. , Sen. Daines Brief 1–3 (describing a
riot over an anti-Catholic sign hung over a Butte saloon on
Independence Day, 1894).

															Respondents argue that Montana’s no-aid
provision merely reflects a state interest in “preserv[ing] funding
for public schools,” Brief for Respondents 7, known as “common
schools” during the Blaine era. Yet just as one cannot separate the
Blaine Amendment from its context, “[o]ne cannot separate the
founding of the American common school and the strong nativist
movement.”[ 9 ]

															Spearheaded by Horace Mann, Secretary of the
Massachusetts Board of Education from 1837 to 1848, the
common-school movement did not aim to establish a system that was
scrupulously neutral on matters of religion. (In a country like
ours, that would have been exceedingly difficult, if not
impossible.) Instead the aim was to establish a system that would
inculcate a form of “least-common- denominator
Protestantism.”[ 10 ] This was
accomplished with

															daily reading from the King James Bible, a
curriculum that, Mann said, let the book “speak for itself.”
4 Life and Works of Horace Mann 312 (1891) (Mann’s 12th annual
report on the Massachusetts schools; emphasis deleted). Yet it was
an affront to many Christians and especially Catholics, not to
mention non-Christians.[ 11 ]

															Mann’s goal was to “Americanize” the incoming
Catholic immigrants. In fact, he and other proponents of the
common-school movement used language and made insinuations that
today would be considered far more inflammatory. In his 10th annual
report on the Massachusetts schools, Mann described the State as
“parental,” assuming the responsibility of weaning children
“[f ]or the support of the poor, nine-tenths of whose cost
originate with foreigners or come from one prolific vice,” meaning
alcohol. 4 Life and Works of Horace Mann, at 132, 134 (emphasis
deleted). In other writing, he described the common-school movement
as “ ‘laboring to elevate mankind into the upper and purer
regions of civilization, Christianity, and the worship of the true
God; all those who are obstructing the progress of this cause are
impelling the race backwards into barbarism and idolatry.’ ”
Glenn 171–172 (quoting an 1846 article by Mann in the Common School
Journal).

															These “obstructers” were Catholic and other
religious groups and families who objected to the common schools’
religious programming, which, as just seen, was not neutral on
matters of religion. Objections met violent response. In
Massachusetts and elsewhere, Catholic students were beaten and
expelled for refusing to read from the King James Bible.[ 12 ] In New York, a mob destroyed the
residence of Bishop John Hughes, who had argued that, if the
State

															was going to fund religious public education, it
should also support church schools. The militia needed to be called
to protect St. Patrick’s Cathedral.[ 13 ] Most notorious were the Philadelphia Bible Riots. In
1844, a rumor circulated in the city’s nativist newspapers that a
school director, who was Catholic, had ordered that Bible reading
be stopped.[ 14 ] Months of
scaremongering broke out into riots that left two of the city’s
Catholic churches burned and several people dead. Only by calling
out the militia and positioning a cannon in front of a Catholic
church—which itself had been taking cannon fire—were the riots
ultimately quelled.[ 15 ]

															Catholic and Jewish schools sprang up because
the common schools were not neutral on matters of religion. “Faced
with public schools that were culturally Protestant and with
curriculum[s] and textbooks that were, consequently, rife with
material that Catholics and Jews found offensive, many Catholics
and Orthodox Jews created separate schools,” and those “who could
afford to do so sent their children to” those schools.[ 16 ]

															But schools require significant funding, and
when religious organizations requested state assistance, Mann and
others labeled them “sectarian”—that is, people who had separated
from the prevailing orthodoxy. See, e.g. , Jeffries &
Ryan 298, 301. The Blaine movement quickly followed.

															In 1854, the Know Nothing party, in many ways a
forerunner of the Ku Klux Klan,[ 17 ] took control of the legislature in Mann’s State of
Massachusetts and championed one of the first constitutional bans
on aid to “sectarian” schools (along with attempting to limit the
franchise to native-born people). See Viteritti, Blaine’s Wake
669–670.

															Respondents and one dissent argue that Montana’s
no-aid provision was cleansed of its bigoted past because it was
readopted for non-bigoted reasons in Montana’s 1972 constitutional
convention. See post , at 4–5, n. 2 (opinion of
Sotomayor, J.); see also Brief for Respondents 18; Tr. of Oral Arg.
22–23. They emphasize that the convention included Catholics, just
as the constitutional convention that readopted Louisiana’s
purportedly racist non-unanimous jury provision included black
delegates. As noted, a virtually identical argument was rejected in Ramos , even though “ ‘no mention was made of
race’ ” during the Louisiana convention debates. 590
U. S., at ___ (Alito, J., dissenting) (slip op., at 3)
(quoting State v. Hankton , 2012–0375, p. 19 (La.
App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038). Under Ramos , it
emphatically does not matter whether Montana readopted the no-aid
provision for benign reasons. The provision’s “uncomfortable past”
must still be “[e]xamined.” 590 U. S., at ___, n. 44
(opinion of the Court) (slip op., at 14, n. 44). And here, it
is not so clear that the animus was scrubbed.

															Delegates at Montana’s constitutional convention
in 1972 acknowledged that the no-aid provision was “a badge of
bigotry,” with one Catholic delegate recalling “being let out of
school in the fourth grade to erase three ‘Ks’ on the front doors
of the Catholic church in Billings.”[ 18 ] Nevertheless the convention proposed, and the State
adopted, a provision with the same material language,
prohibiting public aid “for any sectarian purpose or to aid
any . . . school . . . controlled in whole or
in part by any church, sect , or denomination.” Mont. Const.,
Art. X, §6(1) (1972) (emphasis added). A leading definition of
“sect” at the time, as during the Blaine era, was “a dissenting
religious body; esp: one that is heretical in the eyes of other
members within the same communion .” Webster’s Third New
International Dictionary 2052 (1971) (emphasis added).

															Given the history above, the terms “sect” and
“sectarian” are disquieting remnants. And once again, there appears
to have been little doubt which schools this provision would
predominantly affect. In 1970, according to the National Center for
Educational Statistics, Montana had 61 religiously affiliated
schools. Forty-five were Roman Catholic.[ 19 ] Not only did the convention delegates acknowledge
the no-aid provision’s original anti-Catholic intent, but the
Montana Supreme Court had only ever applied the provision once—to a
Catholic school, and one that had “carrie[d] a sizeable portion of
the total educational load” in Anaconda, Montana. State
ex rel. Chambers v. School Dist. No. 10 of Deer Lodge
Cty. , 155 Mont. 422, 430, 472 P.2d 1013 , 1017 (1970) ( per curiam ). The
Montana Catholic Conference also voiced concerns about access to
school funds, and a convention delegate proposed removing the
no-aid provision’s restriction on “indirect” aid. See Convention
Tr. 2010, 2027. That amendment was rejected.

															Thus, the no-aid provision’s terms keep it
“[t]ethered” to its original “bias,” and it is not clear at all
that the State “actually confront[ed]” the provision’s “tawdry past
in reenacting it.” Ramos , 590 U. S., at ___ (Sotomayor,
J., concurring in part) (slip op., at 4). After all, whereas the
no-aid provision had originally been foisted on Montana, the State
readopted it voluntarily—“sectarian” references included. Whether
or not the State did so for any reason that could be called
legitimate, the convention delegates recognized that the provision
would “continue to mean and do whatever it does now,” Convention
Tr. 2014 (statement of Delegate Loendorf ), and the
discrimination in this case shows that the provision continues to
have its originally intended effect. And even if Montana had done
more to address its no-aid provision’s past, that would of course
do nothing to resolve the bias inherent in the Blaine Amendments
among the 17 States, by respondents’ count, that have not readopted
or amended them since around the turn of the 20th century.[ 20 ]

															Today’s public schools are quite different from
those envisioned by Horace Mann, but many parents of many different
faiths still believe that their local schools inculcate a worldview
that is antithetical to what they teach at home. Many have turned
to religious schools, at considerable expense, or have undertaken
the burden of homeschooling. The tax-credit program adopted by the
Montana Legislature but overturned by the Montana Supreme Court
provided necessary aid for parents who pay taxes to support the
public schools but who disagree with the teaching there. The
program helped parents of modest means do what more affluent
parents can do: send their children to a school of their choice.
The argument that the decision below treats everyone the same is
reminiscent of Anatole France’s sardonic remark that “ ‘[t]he
law, in its majestic equality, forbids the rich as well as the poor
to sleep under bridges, to beg in the streets, and to steal
bread.’ ” J. Cournos, A Modern Plutarch 35 (1928). Notes 1 See U. S. Commission
on Civil Rights, School Choice: The Blaine Amendments &
Anti-Catholicism 36 (2007). 2 See T. Anbinder, Nativism
and Slavery: The Northern Know Nothings and the Politics of the
1850s, pp. 6–8 (1992). 3 Id. , at 127–128,
135. 4 Id. , at 110
(emphasis deleted). 5 P. Hamburger, Separation
of Church and State 206 (2002). 6 See Natelson, Why
Nineteenth Century Bans on “Sectarian” Aid Are Facially
Unconstitutional: New Evidence on Plain Meaning, 19 Federalist Soc.
Rev. 98, 104 (2018). 7 Green, The Blaine
Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992)
(quoting article; internal quotation marks omitted). 8 DeForrest, An Overview
and Evaluation of State Blaine Amendments: Origins, Scope, and
First Amendment Concerns, 26 Harv. J. L. & Pub. Pol’y 551,
566, 570 (2003); see also, e.g. , Becket Fund Brief
5–11. 9 Viteritti, Blaine’s Wake:
School Choice, the First Amendment, and State Constitutional Law,
21 Harv. J. L. & Pub. Pol’y 657, 667 (1998) (Viteritti,
Blaine’s Wake). 10 Jeffries & Ryan, A Political
History of the Establishment Clause, 100 Mich. L. Rev. 279,
298 (2001) (Jeffries & Ryan); see also, e.g. , CER Brief
23–26. 11 See
Glenn 166; Lain, God, Civic Virtue, and the American Way:
Reconstructing Engel , 67 Stan. L. Rev. 479, 487–488
(2015). 12 See
Jeffries & Ryan 300. 13 See
Viteritti, Choosing Equality: School Choice, the Constitution, and
Civil Society 151 (1999). 14 See
Sekulow & Tedesco, The Story Behind Vidal v. Girard ’s Executors: Joseph Story, the Philadelphia Bible
Riots, and Religious Liberty, 32 Pepperdine L. Rev. 605, 630
(2005). 15 See id. , at 633–638. 16 Brief
for Union of Orthodox Jewish Congregations of America as Amicus
Curiae in Trinity Lutheran Church of Columbia, Inc. v. Comer , O. T. 2016, No. 15–577, p. 15 (internal
quotation marks, citation, and brackets omitted). 17 See
generally Myers, Know Nothing and Ku Klux Klan, 219 North American
Rev. 1 (Jan. 1924). 18 6
Montana Constitutional Convention 1971–1972, Proceedings and
Transcript, p. 2012 (Mont. Legislature and Legislative Council)
(Convention Tr.) (statement of Delegate Schiltz); see also, e.g. , id., at 2010 (statement of Delegate Harbaugh)
(recognizing the provision as a Blaine Amendment, which “espoused
the purpose of the Know-nothing Party”); id. , at 2011
(statement of Delegate Toole) (recognizing the provision as a
Blaine Amendment); id. , at 2013 (statement of Chairman
Graybill) (same); id. , at 2027 (statement of Delegate
Campbell) (same); id. , at 2030 (statement of Delegate
Champoux) (same). 19 See
Nat. Center for Educational Statistics, Statistics of
NonpublicElementary and Secondary Schools 1970–71, pp. 32–33 (1973)
(Table 1). 20 Ala.
Const., Art. XIV, §263 (1901); Ariz. Const., Art. II, §12,
Art. IX, §10 (1912); Colo. Const., Art. V, §34,
Art. IX, §7 (1876); Del. Const., Art. X, §3 (1897); Ind.
Const., Art. I, §6 (1851); Ky. Const. §189 (1891); Miss. Const.,
Art. 8, §208 (1890); Nev. Const., Art. XI, §10 (1880); N. H.
Const., Pt. II, Art. 83 (1877); N. M. Const., Art. XII, §3
(1911); N. D. Const., Art. VIII, §152 (1889); Ohio
Const., Art. VI, §2 (1851); Okla. Const., Art. II, §5
(1907); Ore. Const., Art. I, §5 (1857); S. D. Const.,
Art. VIII, §16 (1889); Wis. Const., Art. I, §18, Art. X,
§3 (1848); Wyo. Const., Art. I, §19, Art. VII, §8
(1889). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Justice Gorsuch, concurring.

															The people of Montana, acting through their
legislature, adopted a school choice program. It provided a modest
tax credit to individuals and businesses who donated to nonprofit
scholarship organizations. As the program began to take root,
Montana had just one scholarship organization. It granted
scholarships to families who were struggling financially or had
children with disabilities. Recipients were free to use the
scholarships at the schools of their choice. Some families chose
secular schools, others religious ones.

															Kendra Espinoza, the lead petitioner in this
case, is a single mother who works three jobs. She planned to use
scholarships to help keep her daughters at an accredited religious
school. That is, until the Montana Supreme Court struck down the
tax credit program. Those seeking a tax credit were free to choose
whether to direct their donations to the independent scholarship
organization; the organization was then free to choose scholarship
recipients; and, after that, parents were free to choose where to
use those scholarships. But, the Montana Supreme Court held, this
arrangement impermissibly allowed state funds to find their way to
religious schools, in violation of a state constitutional
provision. By way of remedy, the court ordered an end to the tax
credit program, effectively killing Montana’s school choice
experiment: Without tax credits, donations dry up, and so do the
scholarships enabling school choice.

															Today, the Court explains how the Montana
Constitution, as interpreted by the State Supreme Court, violates
the First Amendment by discriminating against parents and schools
based on their religious status or identity. The Court explains,
too, why the State Supreme Court’s decision to eliminate the tax
credit program fails to mask the discrimination. But for the
Montana Constitution’s impermissible discrimination, after all, the
legislature’s tax credit and scholarship program would be still
operating for the benefit of Ms. Espinoza and everyone else. I
agree with all the Court says on these scores and join its opinion
in full. I write separately only to address an additional
point.

															The Court characterizes the Montana Constitution
as discriminating against parents and schools based on “religious
status and not religious use.” Ante, at 10. No doubt, the
Court proceeds as it does to underscore how the outcome of this
case follows from Trinity Lutheran Church of Columbia, Inc. v. Comer , 582 U. S. ___ (2017), where the Court struck
down a similar public benefits restriction that, it held,
discriminated on the basis of religious status. No doubt, too,
discrimination on the basis of religious status raises grave
constitutional questions for the reasons the Court describes. But I
was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I
am even less sure about characterizing the State’s discrimination
here that way. See id., at ___–___ (slip op., at 1–2)
(Gorsuch, J., concurring in part).

															In the first place, discussion of religious
activity, uses, and conduct—not just status—pervades this record.
The Montana Constitution forbids the use of public funds “for any
sectarian purpose,” including to “aid” sectarian schools.
Art. X, §6(1). Tracking this directive, the State Supreme
Court reasoned that the legislature’s tax credit program could be
used to “subsidiz[e] the sectarian school’s educational program”
and thereby “strengthen . . . religious education.” 393 Mont. 446,
466, 467, 435 P.3d 603, 613, 614 (2018). Meanwhile, Ms. Espinoza
admits that she would like to use scholarship funds to enable her
daughters to be taught in school the “same Christian values” they
are taught at home. App. to Pet. for Cert. 152. Finally, in its
briefing before this Court, Montana has represented that its
Constitution focuses on preventing the use of tax credits to
subsidize religious activity.

															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. 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)? Maybe it’s possible to describe what
happened here as status-based discrimination. But it seems equally,
and maybe more, natural to say that the State’s discrimination
focused on what religious parents and schools do —teach
religion. Nor are the line-drawing challenges here unique; they
have arisen before and will again. See Trinity Lutheran , 582
U. S., at ___–___ (slip op., at 1–2) (opinion of Gorsuch,
J.).

															Most importantly, though, it is not as if the
First Amendment cares. The Constitution forbids laws that prohibit
the free exercise of religion. That 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. At the time of the First Amendment’s
adoption, the word “exercise” meant (much as it means today) some
“[l]abour of the body,” a “[u]se,” as in the “actual application of
any thing,” or a “[p]ractice,” as in some “outward performance.” 1
S. Johnson, A Dictionary of the English Language (4th ed. 1773);
see also ibid. (5th ed. 1784). By speaking of a right to
“free exercise,” rather than a right “of conscience,” an
alternative the framers considered and rejected, our Constitution
“extended the broader freedom of action to all believers.”
McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409, 1490 (1989). So
whether the Montana Constitution 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 its law serves some compelling and narrowly
tailored governmental interest, conditions absent here for reasons
the Court thoroughly explains.

															Our cases have long recognized the importance of
protecting religious actions, not just religious status. In its
very first decision applying the Free Exercise Clause to the
States, the Court explained that the First Amendment protects the
“freedom to act” as well as the “freedom to believe.” Cantwell v. Connecticut , 310
U.S. 296 , 303 (1940). The Court then reversed a criminal
conviction against Newton Cantwell and his sons, Jehovah’s
Witnesses who were prosecuted not because of who they were but
because of what they did—proselytize door-to-door without a
license. See id. , at 300–301, 307, 311. In fact, this Court
has already recognized that parents’ decisions about the education
of their children—the very conduct at issue here—can constitute
protected religious activity. In Wisconsin v. Yoder , 406 U.S.
205 (1972), the Court held that Amish parents could not be
compelled to send their children to a public high school if doing
so would conflict with the dictates of their faith. See id .,
at 214–215, 220, 234–235.

															Even cases that seemingly focus on religious
status do so with equal respect for religious actions. In McDaniel v. Paty , 435 U.S.
618 (1978) (plurality opinion), for example, a State had barred
the clergy from serving in the state legislature or at the state
constitutional convention. See id., at 620–622. Some have
described the discrimination there as focused on religious
“ ‘ status.’ ” Trinity Lutheran , 582
U. S., at ___ (slip op., at 7) (quoting McDaniel , 435
U. S., at 627) (emphasis deleted). But no one can question
that conduct lurked just beneath the surface. After all, the State
identified clergy based on their “conduct and activity,” and the
plurality opinion concluded that the State’s prohibition was based
on “status, acts, and conduct.” 435 U. S., at 627; see also id., at 630–633 (Brennan, J., concurring in judgment); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S.
520 (1993).

															Consistently, too, we have recognized the First
Amendment’s protection for religious conduct in public benefits
cases. When the government chooses to offer scholarships,
unemployment benefits, or other affirmative assistance to its
citizens, those benefits necessarily affect the “baseline against
which burdens on religion are measured.” Locke v. Davey , 540 U.S.
712 , 726 (2004) (Scalia, J., dissenting) (citing Everson v. Board of Ed. of Ewing , 330 U.S.
1 , 16 (1947)). So, as we have long explained, the government
“penalize[s] religious activity” whenever it denies to religious
persons an “equal share of the rights, benefits, and privileges
enjoyed by other citizens.” Lyng v. Northwest Indian
Cemetery Protective Assn. , 485 U.S.
439 , 449 (1988). What benefits the government decides to give,
whether meager or munificent, it must give without discrimination
against religious conduct.

															Our cases illustrate the point. In Sherbert v. Verner , 374 U.S.
398 (1963), for example, a State denied unemployment benefits
to Adell Sherbert not because she was a Seventh Day Adventist but
because she had put her faith into practice by refusing to labor on
the day she believed God had set aside for rest. See id. , at
399–401. Recognizing her right to exercise her religion freely, the
Court held that Ms. Sherbert was entitled to benefits. See id. , at 410. Similarly, in Thomas v. Review Bd. of
Ind. Employment Security Div. , 450 U.S.
707 (1981), the Court held that Eddie Thomas had the right to
resign from his job and still collect an unemployment check after
he decided he could not assemble military tank turrets consistent
with the teachings of his faith. See id ., at 709–712, 720.
In terms that speak equally to our case, the Court explained that
the government tests the Free Exercise Clause whenever it
“conditions receipt of an important benefit upon conduct proscribed
by a religious faith, or . . . denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial
pressure on an adherent to modify his behavior and to violate his
beliefs.” Id. , at 717–718.

															The First Amendment protects religious uses and
actions for good reason. What point is it to tell a person that he
is free to be Muslim but he may be subject to discrimination
for doing what his religion commands, attending Friday
prayers, living his daily life in harmony with the teaching of his
faith, and educating his children in its ways? What does it mean to
tell an Orthodox Jew that she may have her religion but may be
targeted for observing her religious calendar? 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.

															If the government could intrude so much in
matters of faith, too, winners and losers would soon emerge. Those
apathetic about religion or passive in its practice would suffer
little in a world where only inward belief or status is protected.
But what about those with a deep faith that requires them to do
things passing legislative majorities might find unseemly or
uncouth—like knocking on doors to spread their beliefs, refusing to
build tank turrets during wartime, or teaching their children at
home? “[T]hose who take their religion seriously, who think that
their religion should affect the whole of their lives,” and those
whose religious beliefs and practices are least popular, would face
the greatest disabilities. Mitchell v. Helms , 530 U.S.
793 , 827–828 (2000) (plurality opinion). A right meant to
protect minorities instead could become a cudgel to ensure
conformity.

															It doesn’t take a long or searching look through
history or around the world to see how this can go. In the century
before our Nation’s founding, Oliver Cromwell promised to Catholics
in Ireland: “ ‘As to freedom of conscience, I meddle with no
man’s conscience; but if you mean by that, liberty to celebrate the
Mass, I would have you understand that in no place where the power
of the Parliament of England prevails shall that be
permitted.’ ” McDaniel , 435 U. S., at 631, n. 2
(opinion of Brennan, J.) (quoting S. Hook, Paradoxes of Freedom 23
(1962)); see also 1 T. Carlyle, Oliver Cromwell’s Letters and
Speeches 395 (1845) (recording Cromwell’s October 19, 1649, letter
to the Governor of Ross). Even today, in fiefdoms small and large,
people of faith are made to choose between receiving the protection
of the State and living lives true to their religious
convictions.

															Of course, in public benefits cases like the one
before us the stakes are not so dramatic. Individuals are forced
only to choose between forgoing state aid or pursuing some aspect
of their faith. The government does not put a gun to the head, only
a thumb on the scale. But, as so many of our cases explain, the
Free Exercise Clause doesn’t easily tolerate either; any
discrimination against religious exercise must meet the demands of
strict scrutiny. In this way, the Clause seeks to ensure that
religion remains “a matter of voluntary choice by individuals and
their associations, [where] each sect ‘ flourish[es] according
to the zeal of its adherents and the appeal of its dogma,’ ”
influenced by neither where the government points its gun nor where
it places its thumb. McDaniel , 435 U. S., at 640
(opinion of Brennan J.) (quoting Zorach v. Clauson , 343 U.S.
306 , 313 (1952)).

															Montana’s Supreme Court disregarded these
foundational principles. Effectively, the court told the state
legislature and parents of Montana like Ms. Espinoza: You can have
school choice, but if anyone dares to choose to send a child to an
accredited religious school, the program will be shuttered. That
condition on a public benefit discriminates against the free
exercise of religion. Calling it discrimination on the basis of
religious status or religious activity makes no difference: It is
unconstitutional all the same. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Justice Breyer, with whom Justice Kagan joins
as to Part I, dissenting.

															The First Amendment’s Free Exercise Clause
guarantees the right to practice one’s religion. At the same time,
its Establishment Clause forbids government support for religion.
Taken together, the Religion Clauses have helped our Nation avoid
religiously based discord while securing liberty for those of all
faiths.

															This Court has long recognized that an overly
rigid application of the Clauses could bring their mandates into
conflict and defeat their basic purpose. See, e.g. , Walz v. Tax Comm’n of City of New York , 397 U.S.
664 , 668–669 (1970). And this potential conflict is nowhere
more apparent than in cases involving state aid that serves
religious purposes or institutions. In such cases, the Court has
said, there must be constitutional room, or “ ‘play in the
joints,’ ” between “what the Establishment Clause permits and
the Free Exercise Clause compels.” Trinity Lutheran Church of
Columbia , Inc. v. Comer , 582 U. S. ___, ___
(2017) (slip op., at 6) (quoting Locke v. Davey , 540
U.S. 712 , 718 (2004)). Whether a particular state program falls
within that space depends upon the nature of the aid at issue,
considered in light of the Clauses’ objectives.

															The majority barely acknowledges the
play-in-the-joints doctrine here. It holds that the Free Exercise
Clause forbids a State to draw any distinction between secular and
religious uses of government aid to private schools that is not
required by the Establishment Clause. The majority’s approach and
its conclusion in this case, I fear, risk the kind of entanglement
and conflict that the Religion Clauses are intended to prevent. I
consequently dissent.

															I

															In 2015, Montana’s Legislature enacted a
statute giving a $150 tax credit to any person who contributes at
least that amount to an organization that provides scholarships for
students who attend non-public schools. See Mont. Code Ann.
§15–30–3111 (2019). The overwhelming majority of these schools are
religious. (In 2018, 94% of the scholarships awarded helped to pay
religious-school tuition. 393 Mont. 446, 466, 478–479, and
n. 6, 435 P.3d 603, 613, 621, and n. 6; App to Pet. for
Cert. 123, 125.) The Montana Supreme Court held that this program
violated a state constitutional provision that forbids the
legislature to make “any direct or indirect appropriation or
payment” for “any sectarian purpose or to aid any church, school,
academy . . . controlled in whole or in part by any
church, sect, or denomination.” Mont. Const., Art. X, §6.

															Petitioners are the parents of students who
attend one of Montana’s Christian private schools. They believe
that the tenets of their faith require them to send their children
to a religious school. And they claim that, by preventing them from
using state-supported scholarships at those schools, the Montana
Supreme Court’s interpretation of Montana’s Constitution violates
their First Amendment right to free exercise. I shall assume, for
purposes of this opinion, that petitioners’ free exercise claim
survived the Montana Supreme Court’s wholesale invalidation of the
tax credit program. Cf. ante , at 2 (Ginsburg, J.,
dissenting); post , at 2–3 (Sotomayor, J., dissenting).

															A

															We all recognize that the First Amendment
prohibits discrimination against religion. At the same time, our
history and federal constitutional precedent reflect a deep concern
that state funding for religious teaching, by stirring fears of
preference or in other ways, might fuel religious discord and
division and thereby threaten religious freedom itself. See, e.g. , Committee for Public Ed. & Religious
Liberty v. Nyquist , 413 U.S.
756 , 794–796 (1973). The Court has consequently made it clear
that the Constitution commits the government to a “position of
neutrality” in respect to religion. School Dist. of Abington
Township v. Schempp , 374 U.S.
203 , 226 (1963).

															The inherent tension between the Establishment
and Free Exercise Clauses means, however, that the “course of
constitutional neutrality in this area cannot be an absolutely
straight line.” Walz , 397 U. S., at 669. Indeed,
“rigidity could well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored or favored, none
commanded, and none inhibited.” Ibid. That, in significant part, is why the Court has
held that “there is room for play in the joints” between the
Clauses’ express prohibitions that is “productive of a benevolent
neutrality,” allowing “religious exercise to exist without
sponsorship and without interference.” Ibid. It has held
that there “are some state actions permitted by the Establishment
Clause but not required by the Free Exercise Clause.” Locke ,
540 U. S., at 719; see Cutter v. Wilkinson , 544 U.S.
709 , 719 (2005). And that “play in the joints” should, in my
view, play a determinative role here.

															It may be that, under our precedents, the
Establishment Clause does not forbid Montana to subsidize
the education of petitioners’ children. But, the question here is
whether the Free Exercise Clause requires it to do so. The
majority believes that the answer to that question is “yes.” It
writes that “once a State decides” to support nonpublic education,
“it cannot disqualify some private schools solely because they are
religious.” Ante , at 20. I shall explain why I disagree.

															B

															As the majority acknowledges, two cases are
particularly relevant: Trinity Lutheran Church of Columbia , Inc. v. Comer , 582 U. S. ___, and Locke v. Davey , 540 U.S.
712 . In Trinity Lutheran , we considered whether Missouri
could exclude a church-owned preschool from applying for a grant to
renovate its playground. The Court assumed that the Establishment
Clause permitted the State to make grants of this kind to
church-affiliated schools. See 582 U. S., at ___ (slip op., at
6). But, the Court added, this did not “answer the question”
because there is “ ‘play in the joints’ between what the
Establishment Clause permits and the Free Exercise Clause compels.” Ibid . The Court therefore went on to consider the burdens
that Missouri’s law imposed upon the church’s right to free
exercise.

															By excluding schools with ties to churches, the
Court wrote, the State’s law put the church “to a choice: It may
participate in an otherwise available benefit program or remain a
religious institution.” Id. , at ___ (slip op., at 10). That
kind of “ ‘indirect coercion,’ ” the Court explained,
“imposes a penalty on the free exercise of religion that triggers
the most exacting scrutiny.” Id. , at ___, ___ (slip op., at
10, 11). Finding that a State’s “policy preference for skating as
far as possible from religious establishment concerns” could not
satisfy that standard, the Court held that the Free Exercise Clause required Missouri to include church-affiliated schools as
candidates for playground renovation grants. Id. , at ___
(slip op., at 14).

															We confronted a different kind of aid program,
and came to a different conclusion, in Locke . There, we
reviewed a Washington law that offered taxpayer-funded scholarships
to college students on the express condition that they not pursue
degrees that were “ ‘devotional in nature or designed to
induce religious belief.’ ” 540 U. S., at 716; see id. , at 719, n. 2 (quoting Wash. Const., Art. II, §11).
Again, the Court assumed that the Establishment Clause permitted the State to support students seeking such
degrees. 540 U. S., at 719. But the Court concluded that the
Free Exercise Clause did not require it to do so.

															The Court observed that the State’s decision not
to fund devotional degrees did not penalize religious exercise or
require anyone to choose between their faith and a “government
benefit.” Id. , at 721. Rather, the State had “merely chosen
not to fund a distinct category of instruction” that was
“essentially religious.” Ibid. Although Washington’s
Constitution drew “a more stringent line than that drawn by the
United States Constitution,” the Court found that the State’s
position was consistent with the widely shared view, dating to the
founding of the Republic, that taxpayer-supported religious
indoctrination poses a threat to individual liberty. Id. , at
722. Given this “historic and substantial state interest,” the
Court concluded, it would be inappropriate to subject Washington’s
law to a “presumption of unconstitutionality.” Id. , at 725.
And, without such a presumption, the claim that the exclusion of
devotional studies violated the Free Exercise Clause “must fail,”
for “[i]f any room exists between the two Religion Clauses, it must
be here.” Ibid. ; see id. , at 721, n. 3.

															C

															The majority finds that the school-playground
case, Trinity Lutheran , and not the religious-studies case, Locke , controls here. I disagree. In my view, the program at
issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found
unconstitutional in Trinity Lutheran . Like the State of
Washington in Locke , Montana has chosen not to fund (at a
distance) “an essentially religious endeavor”—an education designed
to “ ‘induce religious faith.’ ” Locke , 540
U. S., at 716, 721. That kind of program simply cannot be
likened to Missouri’s decision to exclude a church school from
applying for a grant to resurface its playground.

															The Court in Locke recognized that the
study of devotional theology can be “akin to a religious calling as
well as an academic pursuit.” Id. , at 721. Indeed, “the
shaping, through primary education, of the next generation’s minds
and spirits” may be as critical as training for the ministry, which
itself, after all, is but one of the activities necessary to help
assure a religion’s survival. Zelman v. Simmons-Harris , 536 U.S.
639 , 725 (2002) (Breyer, J., dissenting). That is why many
faith leaders emphasize the central role of schools in their
religious missions. See, e.g. , Southern Baptist Convention,
Resolution on the Importance of Christ-Centered Education (2014)
(underscoring the power of Christian schools to “win students to
salvation through evangelism, make disciples, and foster spiritual
development”); The Holy See, John Paul II, Catechesi Tradendae ¶69
(Oct. 16, 1979) (explaining that “the underlying reason for” the
Catholic school “is precisely the quality of the religious
instruction integrated into the education of the pupils”). It is
why at least some teachers at religious schools see their work as a
form of ministry. See, e.g. , Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC , 565 U.S.
171 , 192 (2012). And petitioners have testified that it is a
“major reason” why they chose religious schools for their children.
App. to Pet. for Cert. 152 (the school teaches “the same Christian
values that I teach at home”).

															Nothing in the Constitution discourages this
type of instruction. To the contrary, the Free Exercise Clause
draws upon a history that places great value upon the freedom of
parents to teach their children the tenets of their faith. Cf. Wisconsin v. Yoder , 406 U.S.
205 , 213–214 (1972). The leading figures of America’s
Enlightenment followed in the footsteps of those who, after the
English civil wars, came to believe “with a passionate conviction
that they were entitled to worship God in their own way and to
teach their children and to form their characters in the way that
seemed to them calculated to impress the stamp of the God-fearing
man.” C. Radcliffe, The Law & Its Compass 71 (1960). But the
bitter lesson of religious conflict also inspired the Establishment
Clause and the state-law bans on compelled support the Court cited
in Locke . Cf., e.g. , J. Madison, Memorial and
Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing , 330 U.S.
1 , 69 (1947) (appendix to dissent of Rutledge, J.) (recalling
the “[t]orrents of blood” shed in efforts to establish state
religion).

															What, then, is the difference between Locke and the present case? And what is it that leads the
majority to conclude that funding the study of religion is more
like paying to fix up a playground ( Trinity Lutheran ) than
paying for a degree in theology ( Locke )? The majority’s
principal argument appears to be that, as in Trinity
Lutheran , Montana has excluded religious schools from its
program “solely because of the religious character of the schools.” Ante , at 9. The majority seeks to contrast this status -based discrimination with the program at issue in Locke , which it says denied scholarships to divinity
students based on the religious use to which they put the
funds— i.e. , training for the ministry, as opposed to secular
professions. See ante , at 11 (citing Trinity
Lutheran , 582 U. S., at ___–___ (slip op., at 9–10)).

															It is true that Montana’s no-aid provision
broadly bars state aid to schools based on their religious
affiliation. But this case does not involve a claim of status-based
discrimination. The schools do not apply or compete for
scholarships, they are not parties to this litigation, and no one
here purports to represent their interests. We are instead faced
with a suit by parents who assert that their free
exercise rights are violated by the application of the no-aid
provision to prevent them from using taxpayer-supported
scholarships to attend the schools of their choosing. In other
words, the problem, as in Locke , is what petitioners
“ ‘propos[e] to do —use the funds to’ ”
obtain a religious education. Ante , 13 (quoting Trinity
Lutheran , 582 U. S., at ___ (slip op., at 12)).

															Even if the schools’ status were relevant, I do
not see what bearing the majority’s distinction could have here.
There is no dispute that religious schools seek generally to
inspire religious faith and values in their students. How else
could petitioners claim that barring them from using state aid to
attend these schools violates their free exercise rights? Thus, the
question in this case—unlike in Trinity Lutheran —boils down
to what the schools would do with state support. And the
upshot is that here, as in Locke , we confront a State’s
decision not to fund the inculcation of religious truths.

															The majority next contends that there is no
“ ‘historic and substantial’ tradition against aiding”
religious schools “comparable to the tradition against
state-supported clergy invoked by Locke .” Ante , at
16. But the majority ignores the reasons for the founding era bans
that we relied upon in Locke .

															“Perhaps the most famous example,” Locke ,
540 U. S., at 722, n. 6, is the 1786 defeat of a Virginia
bill (often called the Assessment Bill) that would have levied a
tax in support of “learned teachers” of “the Christian Religion.” A
Bill Establishing a Provision for Teachers of the Christian
Religion, reprinted in Everson , 330 U. S., at 72
(supplemental appendix to dissent of Rutledge, J.). In his Memorial
and Remonstrance against that proposal, James Madison argued that
compelling state sponsorship of religion in this way was “a signal
of persecution” that “degrades from the equal rank of citizens all
those whose opinions in religion do not bend to those of the
Legislative authority.” Id. , at 68–69. Even among those who
might benefit from such a tax, Madison warned, the bill threatened
to “destroy that moderation and harmony which the forbearance of
our laws to intermeddle with Religion, has produced among its
several sects.” Id. , at 69.

															The opposition galvanized by Madison’s
Remonstrance not only scuttled the Assessment Bill; it spurred
Virginia’s Assembly to enact a very different law, the Bill for
Religious Liberty drafted by Thomas Jefferson. See Brant, Madison:
On the Separation of Church and State, 8 Wm. & Mary Q. 3, 11
(1951); Drakeman, Religion and the Republic: James Madison and the
First Amendment, 25 J. Church & St. 427, 436 (1983); Everson , 330 U. S., at 12.

															Like the Remonstrance, Jefferson’s bill
emphasized the risk to religious liberty that state-supported
religious indoctrination threatened. “[T]o compel a man to furnish
contributions of money for the propagation of opinions which he
disbelieves,” the preamble declared, “is sinful and tyrannical.” A
Bill for Establishing Religious Freedom (1779), in 2 The Papers of
Thomas Jefferson 545 (J. Boyd ed. 1950). The statute accordingly
provided “that no man shall be compelled to frequent or support any
religious worship, place, or ministry whatsoever.” Id. , at
546. Similar proscriptions were included in the early constitutions
of many States. See Locke , 540 U. S., at 723
(collecting examples).

															I see no meaningful difference between the
concerns that Madison and Jefferson raised and the concerns
inevitably raised by taxpayer support for scholarships to religious
schools. In both instances state funds are sought for those who
would “instruc[t] such citizens, as from their circumstances and
want of education, cannot otherwise attain such knowledge” in the
tenets of religious faith. A Bill Establishing a Provision for
Teachers of the Christian Religion, reprinted in Everson ,
330 U. S., at 72. In both cases, that would compel taxpayers
“to support the propagation of opinions” on matters of religion
with which they may disagree, by teachers whom they have not
chosen. A Bill for Establishing Religious Freedom, supra , at
545. And, in both cases, the allocation of state aid to such
purposes threatens to “destroy that moderation and harmony which
the forbearance of our laws to intermeddle with Religion, has
produced among its several sects.” Memorial and Remonstrance,
reprinted in Everson , 330 U. S., at 69.

															The majority argues that at least some early
American governments saw no contradiction between bans on compelled
support for clergy and taxpayer support for religious schools or
universities. See ante , at 14, n. 3. That some States
appear not to have read their prohibitions on compelled support to
bar this kind of sponsorship, however, does not require us to blind
ourselves to the obvious contradiction between the reasons for prohibiting compelled support and the effect of taxpayer
funding for religious education. Madison and Jefferson saw it
clearly. They opposed including theological professorships in their
plans for the public University of Virginia and the Commonwealth
hesitated even to grant charters to religiously affiliated schools.
See Buckley, After Disestablishment: Thomas Jefferson’s Wall of
Separation in Antebellum Virginia, 61 J. So. Hist. 445, 453 (1995);
Brant, supra, at 19–20.

															As for the majority’s examples, it suffices to
say that the record is not so simple. In Georgia, the Governor
advocated for school funding legislation in terms that mirrored the
language of Virginia’s Assessment Bill. See R. Gabel, Public Funds
for Church and Private Schools 241–242 (1937). And the general
levies the majority cites from Pennsylvania and New Jersey were not
adopted until after the founding. See id., at 215–216; see
C. Kaestle, Pillars of the Republic: Common Schools and American
Society, 1780–1860, pp. 166–167 (1983).

															That is not to deny that the history of state
support for denominational schools is “ ‘complex.’ ” Ante , at 16. But founding era attitudes toward compelled
support of clergy were no less complex. Many prominent members of
the founding generation, including George Washington, Patrick
Henry, and John Marshall, supported Virginia’s Assessment Bill. See
Dreisbach, George Mason’s Pursuit of Religious Liberty in
Revolutionary Virginia, 108 Va. Mag. Hist. & Biography 5, 31
(2000). Some who supported this kind of government aid thought it
posed no threat to freedom of conscience; others denied that
provisions for aid to religion amounted to an “establishment” at
all. See id., at 34–35; D. Drakeman, Church, State, and
Original Intent 224–225 (2010). Indeed, at least one historian has
persuasively argued that it is next to impossible to attribute to
the Founders any uniform understanding as to what constitutes, in
the Constitution’s phrase, “an Establishment of religion.” Id. , at 216–229, 260–262.

															This diversity of opinion made no difference in Locke and it makes no difference here. For our purposes it
is enough to say that, among those who gave shape to the young
Republic were people, including Madison and Jefferson, who
perceived a grave threat to individual liberty and communal harmony
in tax support for the teaching of religious truths. These
“historic and substantial” concerns have consistently guided the
Court’s application of the Religion Clauses since. Locke ,
540 U. S., at 725; see, e.g. , Nyquist , 413
U. S., at 794–798; Walz , 397 U. S., at 695
(Harlan, J., concurring); Schempp , 374 U. S., at 307
(Goldberg, J., joined by Harlan, J., concurring). The Court’s
special attention to these views should come as no surprise, for
the risks the Founders saw have only become more apparent over
time. In the years since the Civil War, the number of religions
practiced in our country has grown to scores. And that has made it
more difficult to avoid suspicions of favoritism—or worse—when
government becomes entangled with religion.

															Nor can I see how it could make a difference
that the Establishment Clause might permit the State to
subsidize religious education through a program like Montana’s. The
tax benefit here inures to donors, who choose to support a
particular scholarship organization. That organization, in turn,
awards scholarships to students for the qualifying school of their
choice. The majority points to cases in which we have upheld
programs where, as here, state funds make their way to religious
schools by means of private choices. Ante , at 7 (citing Zelman , 536 U. S., at 649–653). As the Court
acknowledged in Trinity Lutheran , however, that does not
answer the question whether providing such aid is required .
582 U. S., at ___ (slip op., at 6).

															Neither does it address related concerns that I
have previously described. Private choice cannot help the taxpayer
who does not want to finance the propagation of religious beliefs,
whether his own or someone else’s. It will not help religious
minorities too few in number to support a school that teaches their
beliefs. And it will not satisfy those whose religious beliefs
preclude them from participating in a government-sponsored program.
Some or many of the persons who fit these descriptions may well
feel ignored—or worse—when public funds are channeled to religious
schools. See Zelman , 536 U. S., at 728 (Breyer, J.,
dissenting). These feelings may, in turn, sow religiously inspired
political conflict and division—a risk that is considerably greater
where States are required to include religious schools in
programs like the one before us here. And it is greater still
where, as here, those programs benefit only a handful of a State’s
many religious denominations. See ibid .; Big Sky
Scholarships, Schools (2019),
www.bigskyscholarships.org/schools.

															Indeed, the records of Montana’s constitutional
convention show that these concerns were among the reasons that a
religiously diverse group of delegates, including faith leaders of
different denominations, supported the no-aid provision. See Brief
for Respondents 18–23; Brief for Montana Constitutional Convention
Delegates as Amici Curiae 19–21, 22, 24–25 (noting support
for the provision from a Congregationalist minister, the Roman
Catholic priest responsible for Catholic schools in the Diocese of
Great Falls, a Methodist pastor, a Presbyterian minister, and the
Montana Catholic Conference, among others).

															In an effort to downplay this risk and further
distinguish this case from Locke , the majority contends that
“Montana’s Constitution does not zero in on any particular
‘essentially religious’ course of instruction.” Ante , at 13
(quoting Locke , 540 U. S., at 721). But this is not a
facial challenge to the no-aid provision. See Reply Brief 8. As
applied, the provision affects only a scholarship program that, in
effect, uses taxpayer funds to help pay for student tuition at
religious schools. We have long recognized that unrestricted cash
payments of this kind raise special establishment concerns. Cf. Mitchell v. Helms , 530 U.S.
793 , 818–819 (2000) (plurality opinion); see id. , at
848–849 (O’Connor, J., concurring in judgment). And for good
reason: The subsidy petitioners demand would go to pay for, among
other things, the salaries of teachers and administrators who have
been found in at least some instances to so “personify [the]
beliefs” of the churches that employ them that they are quite
literally “ministers” within the meaning of the First Amendment. Hosanna-Tabor , 565 U. S., at 188.

															If, for 250 years, we have drawn a line at
forcing taxpayers to pay the salaries of those who teach their
faith from the pulpit, I do not see how we can today require
Montana to adopt a different view respecting those who teach it in
the classroom.

															II

															In reaching its conclusion that the Free
Exercise Clause requires Montana to allow petitioners to use
taxpayer- supported scholarships to pay for their children’s
religious education, the majority makes several doctrinal
innovations that, in my view, are misguided and threaten adverse
consequences.

															Although the majority refers in passing to the
“play in the joints” between that which the Establishment Clause
forbids and that which the Free Exercise Clause requires, its
holding leaves that doctrine a shadow of its former self. See, e.g. , Cutter , 544 U. S., at 719; Walz ,
397 U. S., at 669. Having concluded that there is no obstacle
to subsidizing a religious education under our Establishment Clause
precedents, the majority says little more about Montana’s
antiestablishment interests or the reasoning that underlies them.
It does not engage with the State’s concern that its funds not be
used to support religious teaching. Instead, the Court holds that
it need not consider how Montana’s funds would be used because, in
its view, all distinctions on the basis of religion—whether in
respect to playground grants or devotional teaching—are similarly
and presumptively unconstitutional. See ante , at 10.

															Setting aside the problems with the majority’s
characterization of this case, supra , at 7–8, I think the
majority is wrong to replace the flexible, context-specific
approach of our precedents with a test of “strict” or “rigorous”
scrutiny. And it is wrong to imply that courts should use that same
heightened scrutiny whenever a government benefit is at issue. See ante , at 9, 11–12.

															Experience has taught us that “we can only dimly
perceive the boundaries of permissible government activity in this
sensitive area of constitutional adjudication.” Tilton v. Richardson , 403 U.S.
672 , 678 (1971) (plurality opinion); see also Schempp ,
374 U. S., at 306 (opinion of Goldberg, J., joined by Harlan,
J.) (there is “no simple and clear measure which by precise
application can readily and invariably demark the permissible from
the impermissible”); Walz , 397 U. S., at 669
(“[R]igidity could well defeat the basic purpose of these
provisions, which is to insure that no religion be sponsored or
favored, none commanded, and none inhibited”). If the Court has
found it possible to walk what we have called the “ ‘tight
rope’ ” between the two Religion Clauses, it is only by
“preserving doctrinal flexibility and recognizing the need for a
sensible and realistic application” of those provisions. Yoder , 406 U. S., at 221.

															The Court proceeded in just this way in Locke . It considered the same precedents the majority today
cites in support of its presumption of unconstitutionality. But it
found that applying the presumption set forth in those cases to
Washington’s decision not to fund devotional degrees would “extend”
them “well beyond not only their facts but their reasoning.” 540
U. S., at 720. In my view, that analysis applies equally to
this case.

															Montana’s law does not punish religious
exercise. Cf. Locke , 540 U. S., at 720 (citing Church of Lukumi Babalu Aye , Inc. v. Hialeah , 508 U.S.
520 , 535 (1993)); see ante , at 11. It does not deny
anyone, because of their faith, the right to participate in
political affairs of the community. Cf. Locke , 540
U. S., at 720–721 (citing McDaniel v. Paty , 435 U.S.
618 , 626 (1978)); see ante , at 11–12. And it does not
require students to choose between their religious beliefs and
receiving secular government aid such as unemployment benefits. Cf. Locke , 540 U. S., at 720 (citing Sherbert v. Verner , 374 U.S.
398 , 403–404 (1963)); see ante , at 11–12. The State has
simply chosen not to fund programs that, in significant part,
typically involve the teaching and practice of religious devotion.
And “a legislature’s decision not to subsidize the exercise of a
fundamental right does not infringe the right, and thus is not
subject to strict scrutiny.” Regan v. Taxation With
Representation of Wash. , 461 U.S.
540 , 549 (1983); see also Lyng v. Automobile
Workers , 485 U.S.
360 , 368 (1988).

															I disagree, then, with what I see as the
majority’s doctrinal omission, its misplaced application of a legal
presumption, and its suggestion that this presumption is
appropriate in many, if not all, cases involving government
benefits. As I see the matter, our differences run deeper than a
simple disagreement about the application of prior case law.

															The Court’s reliance in our prior cases on the
notion of “play in the joints,” our hesitation to apply
presumptions of unconstitutionality, and our tendency to confine
benefit- related holdings to the context in which they arose all
reflect a recognition that great care is needed if we are to
realize the Religion Clauses’ basic purpose “to promote and assure
the fullest scope of religious liberty and religious tolerance for
all and to nurture the conditions which secure the best hope of
attainment of that end.” Schempp , 374 U. S., at 305
(opinion of Goldberg, J., joined by Harlan, J.); see Van
Orden v. Perry , 545 U.S.
677 , 698 (2005) (Breyer, J., concurring in judgment).

															For one thing, government benefits come in many
shapes and sizes. The appropriate way to approach a State’s
benefit-related decision may well vary depending upon the relation
between the Religion Clauses and the specific benefit and
restriction at issue. For another, disagreements that concern
religion and its relation to a particular benefit may prove
unusually difficult to resolve. They may involve small but
important details of a particular benefit program. Does one detail
affect one religion negatively and another positively? What about a
religion that objects to the particular way in which the government
seeks to enforce mandatory (say, qualification-related) provisions
of a particular benefit program? See, e.g. , New Life
Baptist Church Academy v. East Longmeadow , 885 F.2d 940
(CA1 1989) (Breyer, J., for the court). Or the religious group that
for religious reasons cannot accept government support? See Brief
for Respondents 20–21 (noting, inter alia , Seventh-day
Adventists’ support for Montana’s no-aid provision on this ground).
And what happens when qualification requirements mean that
government money flows to one religion rather than another? Courts
are ill equipped to deal with such conflicts. Yet, in a Nation with
scores of different religions, many such disagreements are
possible. And I have only scratched the surface.

															The majority claims that giving weight to these
considerations would be a departure from our precedent and give
courts too much discretion to interpret the Religion Clauses. See ante , at 16–18. But we have long understood that the
“application” of the First Amendment’s mandate of neutrality
“requires interpretation of a delicate sort.” Schempp , 374
U. S., at 226. “Each value judgment under the Religion
Clauses,” we have explained, must “turn on whether particular acts
in question are intended to establish or interfere with religious
beliefs and practices or have the effect of doing so.” Walz ,
397 U. S., at 669.

															Nor does the majority’s approach avoid judicial
entanglement in difficult and sensitive questions. To the contrary,
as I have just explained, it burdens courts with the still more
complex task of untangling disputes between religious organizations
and state governments, instead of giving deference to state
legislators’ choices to avoid such issues altogether. At the same
time, it puts States in a legislative dilemma, caught between the
demands of the Free Exercise and Establishment Clauses, without
“breathing room” to help ameliorate the problem.

															I agree with the majority that it is preferable
in some areas of the law to develop generally applicable tests. The
problem, as our precedents show, is that the interaction of the
Establishment and Free Exercise Clauses makes it particularly
difficult to design a test that vindicates the Clauses’ competing
interests in all—or even most—cases. That is why, far from
embracing mechanical formulas, our precedents repeatedly and
frankly acknowledge the need for precisely the kind of
“ ‘judgment-by-judgment analysis’ ” the majority rejects. Ante , at 17; see, e.g. , Walz , 397 U. S.,
at 669. “The standards” of our prior decisions, we have said,
“should rather be viewed as guidelines with which to identify
instances in which the objectives of the Religion Clauses have been
impaired.” Tilton , 403 U. S., at 678 (plurality
opinion); accord, Nyquist , 413 U. S., at 773,
n. 31.

															The Court’s occasional efforts to declare rules
in spite of this experience have failed to produce either coherence
or consensus in our First Amendment jurisprudence. See Van
Orden , 545 U. S., at 697 (Breyer, J., concurring in
judgment) (listing examples). The persistence of such disagreements
bears out what I have said—namely, that rigid, bright-line rules
like the one the Court adopts today too often work against the
underlying purposes of the Religion Clauses. And a test that fails
to advance the Clauses’ purposes is, in my view, far worse than no
test at all.

															Consider some of the practical problems that may
arise from the Court’s holding. The States have taken advantage of
the “play in the joints” between the Religion Clauses to craft
programs of public aid to education that address their local needs.
Many provide assistance to families with students in nonpublic
schools, ranging from scholarships to tax credits and deductions
that reimburse tuition expenses. See Dept. of Ed., A Duncan
et al., Education Options in the States 3–6 (2009). Although
most state constitutions today have no-aid provisions like
Montana’s, those provisions are only one part of a broader system
of local regulation. See App. D to Brief for Respondents. Some
States have concluded that their no-aid provisions do not bar
scholarships to students at religious schools, while others without
such clauses have nevertheless chosen not to fund religious
education. See Brief for State of Colorado et al. as Amici
Curiae 6–7; Brief for State of Maine as Amicus Curiae 10–15. Today’s decision upends those arrangements without stopping
to ask whether they might actually further the objectives of the
Religion Clauses in some or even many cases.

															And what are the limits of the Court’s holding?
The majority asserts that States “need not subsidize private
education.” Ante , at 20. But it does not explain why that is
so. If making scholarships available to only secular nonpublic
schools exerts “coercive” pressure on parents whose faith impels
them to enroll their children in religious schools, then how is a
State’s decision to fund only secular public schools any
less coercive? Under the majority’s reasoning, the parents in both
cases are put to a choice between their beliefs and a
taxpayer-sponsored education.

															Accepting the majority’s distinction between
public and nonpublic schools does little to address the uncertainty
that its holding introduces. What about charter schools? States
vary widely in how they permit charter schools to be structured,
funded, and controlled. See Mead, Devilish Details: Exploring
Features of Charter School Statutes That Blur the Public/Private
Distinction, 40 Harv. J. Legis. 349, 353–357, 367–368 (2003). How
would the majority’s rule distinguish between those States in which
support for charter schools is akin to public school funding and
those in which it triggers a constitutional obligation to fund
private religious schools? The majority’s rule provides no
guidance, even as it sharply limits the ability of courts and
legislatures to balance the potentially competing interests that
underlie the Free Exercise and Antiestablishment Clauses.

															*  *  *

															It is not easy to discern “the boundaries of
the neutral area between” the two Religion Clauses “within which
the legislature may legitimately act.” Tilton , 403
U. S., at 677 (plurality opinion). And it is more difficult
still in cases, such as this one, where the Constitution’s policy
in favor of free exercise, on one hand, and against state
sponsorship, on the other, are in conflict. In such cases, I
believe there is “no test-related substitute for the exercise of
legal judgment.” Van Orden , 545 U. S., at 700 (opinion
of Breyer, J.). That judgment “must reflect and remain faithful to
the underlying purposes of the Clauses, and it must take account of
context and consequences measured in light of those purposes.” Ibid. Here, those purposes, along with the examples set by
our decisions in Locke and Trinity Lutheran , lead me
to believe that Montana’s differential treatment of religious
schools is constitutional. “If any room exists between the two
Religion Clauses, it must be here.” Locke , 540 U. S.,
at 725. For these reasons, I respectfully dissent from the Court’s
contrary conclusion. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Justice Ginsburg, with whom Justice Kagan
joins, dissenting.

															The Montana Legislature enacted a scholarship
program to fund tuition for students attending private secondary
schools. See Mont. Code Ann. §15–30–3111 (2019). In the decision
below, the Montana Supreme Court struck down that program in its
entirety. The program, the state court ruled, conflicted with the
State Constitution’s no-aid provision, which forbids government
appropriations to religious schools. Mont. Const., Art. X, §6(1).
Parents who sought to use the program’s scholarships to fund their
children’s religious education challenged the state court’s ruling.
They argue in this Court that the Montana court’s application of
the no-aid provision violated the Free Exercise Clause of the
Federal Constitution. Importantly, the parents, petitioners here,
disclaim any challenge to the no-aid provision on its face. They
instead argue—and this Court’s majority accepts—that the provision
is unconstitutional as applied because the First Amendment
prohibits discrimination in tuition-benefit programs based on a
school’s religious status. Because the state court’s decision does
not so discriminate, I would reject petitioners’ free exercise
claim.

															The First Amendment prohibits the government
from “mak[ing a] law . . . prohibiting the free exercise”
of religion. U. S. Const., Amdt. 1. This Court’s decisions have
recognized that a burden on religious exercise may occur both when
a State proscribes religiously motivated activity and when a law
pressures an adherent to abandon her religious faith or practice. Sherbert v. Verner , 374 U.S.
398 , 406 (1963); Hobbie v. Unemployment Appeals
Comm’n of Fla. , 480 U.S.
136 , 140–141 (1987). The Free Exercise Clause thus protects
against “indirect coercion or penalties on the free exercise of
religion.” Lyng v. Northwest Indian Cemetery Protective
Assn. , 485 U.S.
439 , 450 (1988). Invoking that principle in Trinity Lutheran
Church of Columbia, Inc. v. Comer , 582 U. S. ___
(2017), the Court observed that disqualifying an entity from a
public benefit “solely because of [the entity’s] religious
character” can impose “a penalty on the free exercise of religion.” Id. , at ___–___ (slip op., at 9–10). The Court then
concluded that a Missouri law making churches ineligible for a
government playground-refurbishing grant impermissibly burdened the
church’s religious exercise by “put[ting it] to the choice between
being a church and receiving a government benefit.” Id. , at
___ (slip op., at 13).

															Petitioners argue that the Montana Supreme
Court’s decision fails when measured against Trinity
Lutheran . I do not see how. Past decisions in this area have
entailed differential treatment occasioning a burden on a
plaintiff ’s religious exercise. Lyng , 485 U. S.,
at 450–451; Trinity Lutheran , 582 U. S., at ___ (slip
op., at 11). This case is missing that essential component. Recall
that the Montana court remedied the state constitutional violation
by striking the scholarship program in its entirety. Under that
decree, secular and sectarian schools alike are ineligible for
benefits, so the decision cannot be said to entail differential
treatment based on petitioners’ religion. Put somewhat differently,
petitioners argue that the Free Exercise Clause requires a State to
treat institutions and people neutrally when doling out a
benefit—and neutrally is how Montana treats them in the wake of the
state court’s decision.

															Accordingly, the Montana Supreme Court’s
decision does not place a burden on petitioners’ religious
exercise. Petitioners may still send their children to a religious
school. And the Montana Supreme Court’s decision does not pressure
them to do otherwise. Unlike the law in Trinity Lutheran ,
the decision below puts petitioners to no “choice”: Neither giving
up their faith, nor declining to send their children to sectarian
schools, would affect their entitlement to scholarship funding. 582
U. S., at ___ (slip op., at 10). There simply are no
scholarship funds to be had.

															True, petitioners expected to be eligible for
scholarships under the legislature’s program, and to use those
scholarships at a religious school. And true, the Montana court’s
decision disappointed those expectations along with those of
parents who send their children to secular private schools. But, as
Justice Sotomayor observes, see post, at 3 (dissenting
opinion), this Court has consistently refused to treat neutral
government action as unconstitutional solely because it fails to
benefit religious exercise. See Sherbert , 374 U. S., at
412 (Douglas, J., concurring) (“[T]he Free Exercise Clause is
written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from the
government.”).

															These considerations should be fatal to
petitioners’ free exercise claim, yet the Court does not confront
them. Instead, the Court decides a question that, in my view, this
case does not present: “[W]hether excluding religious schools and
affected families from [the scholarship] program was consistent
with the Federal Constitution.” Ante , at 7 (majority
opinion). The Court goes on to hold that the Montana Supreme
Court’s application of the no-aid provision violates the Free
Exercise Clause because it “ ‘condition[s] the availability of
benefits upon a recipient’s willingness to surrender [its]
religiously impelled status.’ ” Ante , at 11 (quoting Trinity Lutheran , 582 U. S., at ___–___ (slip op., at
9–10); alterations in original). As I see it, the decision
below—which maintained neutrality between sectarian and
nonsectarian private schools—did no such thing.

															Finding the “beginning” of the Montana Supreme
Court’s decision erroneous, this Court regards the state court’s
ultimate judgment as irrelevant. Ante, at 20–22. In the
Court’s recounting, the Montana court first held that religious
schools must be excluded from the scholarship program—necessarily
determining that the Free Exercise Clause permitted that result—and
only subsequently struck the entire program as a way of carrying
out its holding. See ante, at 21 (“When the [Montana
Supreme] 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.”).
But the initial step described by this Court is imaginary. The
Montana court determined that the scholarship program violated the
no-aid provision because it resulted in aid to religious schools.
Declining to rewrite the statute to exclude those schools, the
state court struck the program in full. 393 Mont. 446, 463–468, 435
P.3d 603, 612–614 (2018). In doing so, the court never made
religious schools ineligible for an otherwise available benefit,
and it never decided that the Free Exercise Clause would allow that
outcome.[ 1 ]

															Thus, contrary to this Court’s assertion, see ante, at 21, the no-aid provision did not require the
Montana Supreme

															Court to “exclude” religious schools from the
scholarship program. The provision mandated only that the state
treasury not be used to fund religious schooling. As this case
demonstrates, that mandate does not necessarily require
differential treatment. The no-aid provision can be implemented in
two ways. A State may distinguish within a benefit program between
secular and sectarian schools, or it may decline to fund all
private schools. The Court agrees that the First Amendment permits
the latter course. See ante, at 20. Because that is the path
the Montana Supreme Court took in this case, there was no reason
for this Court to address the alternative.

															By urging that it is impossible to apply the
no-aid provision in harmony with the Free Exercise Clause, the
Court seems to treat the no-aid provision itself as
unconstitutional. See ante, at 21. Petitioners, however,
disavowed a facial First Amendment challenge, and the state courts
were never asked to address the constitutionality of the no-aid
provision divorced from its application to a specific government
benefit. See, e.g ., Reply Brief 8, 20, 21–22. This Court
therefore had no call to reach that issue. See Adams v. Robertson , 520 U.S.
83 , 90 (1997) ( per curiam ) (“ ‘[I]t would be
unseemly in our dual system of government’ to disturb the finality
of state judgments on a federal ground that the state court did not
have occasion to consider.” (quoting Webb v. Webb , 451 U.S.
493 , 500 (1981))). The only question properly raised is whether
application of the no-aid provision to bar all state-sponsored
private-school funding violates the Free Exercise Clause. For the
reasons stated, supra, at 2–3, it does not.

															Nearing the end of its opinion, the Court
writes: “A State need not subsidize private education. But once a
State decides to do so, it cannot disqualify some private schools
solely because they are religious.” Ante , at 20. Because
Montana’s Supreme Court did not make such a decision—its judgment
put all private school parents in the same boat—this Court had no
occasion to address the matter.[ 2 ] On that sole ground, and reaching no other issue, I
dissent from the Court’s judgment. Notes 1 In its opinion, Montana’s
highest court stated without explanation that this case is not one
in which application of the no-aid provision violates the Free
Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614. When
the court made that statement, it had already invalidated the
entire scholarship program. Ibid. Accordingly, the court’s
statement cannot be understood to have approved of excluding
religious schools from an otherwise available scholarship. Instead,
the statement is most fairly read to convey that the Free Exercise
Clause allows a State to decline to fund any private schools, an
outcome that avoids state aid to religious schools. 2 The Montana Supreme Court’s
decision leaves parents where they would be had the State never
enacted a scholarship program. In that event, no one would argue
that Montana was obliged to provide such a program solely for
parents who send their children to religious schools. But cf. ante, at 13 (Alito, J., concurring) (inapt reference to
Anatole France’s remark). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–1195

															_________________

															KENDRA ESPINOZA, et al., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, et al.

															on writ of certiorari to the supreme court of
montana

															[June 30, 2020]

															Justice Sotomayor, dissenting.

															The majority holds that a Montana scholarship
program unlawfully discriminated against religious schools by
excluding them from a tax benefit. The threshold problem, however,
is that such tax benefits no longer exist for anyone in the State.
The Montana Supreme Court invalidated the program on state-law
grounds, thereby foreclosing the as-applied challenge petitioners
raise here. Indeed, nothing required the state court to uphold the
program or the state legislature to maintain it. The Court
nevertheless reframes the case and appears to ask whether a
longstanding Montana constitutional provision is facially invalid
under the Free Exercise Clause, even though petitioners disavowed
bringing such a claim. But by resolving a constitutional question
not presented, the Court fails to heed Article III principles older
than the Religion Clause it expounds. Coleman v. Thompson , 501 U.S.
722 , 730 (1991) (forbidding “resolution of a federal question”
that “cannot affect” a state-court judgment).

															Not only is the Court wrong to decide this case
at all, it decides it wrongly. In Trinity Lutheran Church of
Columbia, Inc. v. Comer , 582 U. S. ___ (2017), this
Court held, “for the first time, that the Constitution requires the
government to provide public funds directly to a church.” Id. , at ___ (Sotomayor, J., dissenting) (slip op., at 1).
Here, the Court invokes that precedent to require a State to
subsidize religious schools if it enacts an education tax credit.
Because this decision further “slights both our precedents and our
history” and “weakens this country’s longstanding commitment to a
separation of church and state beneficial to both,” ibid. , I
respectfully dissent.

															I

															A

															The Montana Supreme Court invalidated a state
tax-credit program because it was inconsistent with the Montana
Constitution’s “no-aid provision,” Art. X, §6(1), which forbids
government appropriations for sectarian purposes, including funding
religious schools. 393 Mont. 446, 467–468, 435 P.3d 603, 614
(2018). In so doing, the court expressly declined to resolve
federal constitutional issues. “Having concluded the Tax Credit
Program violates” the no-aid provision, the court held, “it is not
necessary to consider federal precedent interpreting the First
Amendment’s less-restrictive Establishment Clause.” Ibid. So
too the court declined to ground its holding on the Free Exercise
Clause. Ibid. The court also remedied the only potential
harm of discriminatory treatment by striking down the program
altogether. After the state court’s decision, neither secular nor
sectarian schools receive the program’s tax benefits.

															Petitioners’ free exercise claim is not
cognizable. The Free Exercise Clause, the Court has said, protects
against “indirect coercion or penalties on the free exercise of
religion.” Lyng v. Northwest Indian Cemetery Protective
Assn. , 485 U.S.
439 , 450 (1988). Accordingly, this Court’s cases have required
not only differential treatment, cf. ante , at 11–12, but
also a resulting burden on religious exercise, Lyng , 485
U. S., at 450–451.

															Neither differential treatment nor coercion
exists here because the Montana Supreme Court invalidated the
tax-credit program entirely. 393 Mont., at 467–468, 435 P. 3d,
at 614. Because no secondary school (secular or sectarian) is
eligible for benefits, the state court’s ruling neither treats
petitioners differently based on religion nor burdens their
religious exercise. See ante , at 2–6 (Ginsburg, J.,
dissenting). Petitioners remain free to send their children to the
religious school of their choosing and to exercise their faith.

															To be sure, petitioners may want to apply for
scholarships and would prefer that Montana subsidize their
children’s religious education. But this Court had never before
held unconstitutional government action that merely failed to
benefit religious exercise. “The crucial word in the constitutional
text is ‘prohibit’: ‘For the Free Exercise Clause is written in
terms of what the government cannot do to the individual, not in
terms of what the individual can exact from the government.’ ” Lyng , 485 U. S., at 451 (quoting Sherbert v. Verner , 374 U.S.
398 , 412 (1963) (Douglas, J., concurring)). Put another way,
the Constitution does not compel Montana to create or maintain a
tax subsidy.

															Notably, petitioners did not allege that the
no-aid provision itself caused their harm or that invalidating the
entire tax-credit scheme would create independent constitutional
concerns. Even now, petitioners disclaim a facial challenge to the
no-aid provision. Reply Brief 8, 20–22. Petitioners thus have no
cognizable as-applied claim arising from the disparate treatment of
religion, because there is no longer a program to which Montana’s
no-aid provision can apply.

															Nor is it enough that petitioners might wish
that Montana’s no-aid provision were no longer good law.
Petitioners identify no disparate treatment traceable to the state
constitutional provision that they challenge because the tax-credit
program no longer operates. See Simon v. Eastern Ky.
Welfare Rights Organization , 426 U.S.
26 , 41–42, 44–46 (1976).[ 1 ]
Short of ordering Montana to create a religious subsidy that
Montana law does not permit, there is nothing for this Court to
do.[ 2 ]

															B

															As another dissenting opinion observes, see ante, at 3 (opinion of Ginsburg, J.), the Court sidesteps
these obstacles by asking a question that this case does not raise
and that the Montana Supreme Court did not answer: whether by
excluding “religious schools and affected families from [a
scholarship] program,” Montana’s no-aid provision was “consistent
with the Federal Constitution,” ante , at 7 (majority
opinion). In so doing, the Court appears to transform petitioners’
as-applied challenge into a facial one. Ante , at 10; see
also ante , at 1 (Thomas, J., concurring).

															This approach lacks support in our case law. The
Court typically declines to read state-court decisions as impliedly
resolving federal questions, especially ones not raised by the
parties. See, e.g. , Adams v. Robertson , 520 U.S.
83 , 88–89 (1997) ( per curiam ). Indeed, to honor
principles of comity, this Court generally dismisses writs of
certiorari from a State’s highest court where, as is true here of
the Court’s bespoke inquiry, “the sole federal question” the Court
seeks to decide was not “raised, preserved, or passed upon in the
state courts below.” Cardinale v. Louisiana , 394 U.S.
437 , 438 (1969); see also Webb v. Webb , 451 U.S.
493 , 499 (1981).

															That rule respects not only federalism, but also
the separation of powers. Article III confines this Court’s
authority to adjudicating actual “[c]ases” or “[c]ontroversies.”
See also Allen v. Wright , 468
U.S. 737 , 750 (1984) (case-or-controversy requirement reflects
“the idea of separation of powers on which the Federal Government
is founded”). Federal courts thus lack power “to decide questions
that cannot affect the rights of litigants in the case before them”
and may resolve only “real and substantial controvers[ies]
admitting of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.” Lewis v. Continental Bank Corp. , 494 U.S.
472 , 477 (1990) (alteration in original; internal quotation
marks omitted). Consonant with that limitation, the Court has
declined to “ ‘ “formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be
applied.” ’ ” Washington State Grange v. Washington State Republican Party , 552
U.S. 442 , 450 (2008) (quoting Ashwander v. TVA , 297 U.S.
288 , 347 (1936) (Brandeis, J., concurring)). By answering an
apparent hypothetical question, today’s Court subverts these
longstanding practices.

															True, on occasion this Court has resolved
federal constitutional questions when it was unclear whether the
state-court judgment rested on an adequate and independent
state-law ground. See, e.g. , Michigan v. Long , 463 U.S.
1032 , 1043 (1983). But that is not this case. Recall that the
Montana Supreme Court remedied a state constitutional violation by
invalidating a state program on state-law grounds, having expressly
declined to reach any federal issue. See 393 Mont., at 467–468, 435
P. 3d, at 614; see also ante , at 4–5 (Ginsburg, J.,
dissenting).

															These principles exist to prevent this Court
from issuing advisory opinions, sowing confusion, and muddying the
law. This is case in point. Having held that petitioners may not be
“exclu[ded] from the scholarship program” that no longer exists,
the Court remands to the Montana Supreme Court for “further
proceedings not inconsistent with this opinion.” Ante , at
22. But it is hard to tell what this Court wishes the state court
to do. There is no program from which petitioners are currently
“exclu[ded],” so must the Montana Supreme Court order the State to
recreate one? Has this Court just announced its authority to
require a state court to order a state legislature to fund
religious exercise, overruling centuries of contrary precedent and
historical practice? See Cutter v. Wilkinson , 544 U.S.
709 (2005); Locke v. Davey , 540 U.S.
712 (2004); see also Trinity Lutheran , 582 U. S.,
at ___–___, and nn. 7–11 (Sotomayor, J., dissenting) (slip op., at
12–20, and nn. 7–11) (describing States’ religious disestablishment
movements near the founding and cataloging state constitutional
provisions declining to aid religious ministry). Indeed, it appears
that the Court has declared that once Montana created a tax
subsidy, it forfeited the right to eliminate it if doing so would
harm religion. This is a remarkable result, all the more so because
the Court strains to reach it.

															The Court views its decision as “simply
restor[ing] the status quo established by the Montana Legislature.” Ante at 22, n. 4. But it overlooks how that status quo
allowed the State Supreme Court to cure any disparate treatment of
religion while still giving effect to a state constitutional
provision ratified by the citizens of Montana. Today’s decision
replaces a remedy chosen by representatives of Montanans and
designed to honor the will of the electorate with one that the
Court prefers instead.

															In sum, the decision below neither upheld a
program that “disqualif[ies] some private schools solely because
they are religious,” ante , at 20, nor otherwise decided the
case on federal grounds. The Court’s opinion thus turns on a
counterfactual hypothetical it is powerless (and unwise) to
decide.

															II

															Even on its own terms, the Court’s answer to
its hypothetical question is incorrect. The Court relies
principally on Trinity Lutheran , which found that
disqualifying an entity from a public benefit “solely because of
[the entity’s] religious character” could impose “a penalty on the
free exercise of religion.” 582 U. S., at ___–___ (slip op.,
at 9–10). Trinity Lutheran held that ineligibility for a
government benefit impermissibly burdened a church’s religious
exercise by “put[ting it] to the choice between being a church and
receiving a government benefit.” Id. , at ___ (slip op., at
13). Invoking that precedent, the Court concludes that Montana must
subsidize religious education if it also subsidizes nonreligious
education.[ 3 ]

															The Court’s analysis of Montana’s defunct tax
program reprises the error in Trinity Lutheran . Contra the
Court’s current approach, our free exercise precedents had long
granted the government “some room to recognize the unique status of
religious entities and to single them out on that basis for
exclusion from otherwise generally applicable laws.” Id. , at
___ (Sotomayor, J., dissenting) (slip op., at 9).

															Until Trinity Lutheran , the right to
exercise one’s religion did not include a right to have the State
pay for that religious practice. See School Dist. of Abington
Township v. Schempp , 374 U.S.
203 , 226 (1963). That is because a contrary rule risks reading
the Establishment Clause out of the Constitution. Although the
Establishment Clause “permit[s] some government funding of secular
functions performed by sectarian organizations,” the Court’s
decisions “provide[d] no precedent for the use of public funds to
finance religious activities.” Rosenberger v. Rector and
Visitors of Univ. of Va. , 515 U.S.
819 , 847 (1995) (O’Connor, J., concurring). After all, the
government must avoid “an unlawful fostering of religion.” Cutter , 544 U. S., at 714 (internal quotation marks
omitted). Thus, to determine the constitutionality of government
action that draws lines based on religion, our precedents
“carefully considered whether the interests embodied in the
Religion Clauses justify that line.” Trinity Lutheran , 582
U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 8).
The relevant question had always been not whether a State singles
out religious entities, but why it did so.

															Here, a State may refuse to extend certain aid
programs to religious entities when doing so avoids “historic and
substantial” antiestablishment concerns. Locke , 540
U. S., at 725. Properly understood, this case is no different
from Locke because petitioners seek to procure what the
plaintiffs in Locke could not: taxpayer funds to support
religious schooling.[ 4 ] Indeed,
one of the concurrences lauds petitioners’ spiritual pursuit,
acknowledging that they seek state funds for manifestly religious
purposes like “teach[ing] religion” so that petitioners may
“outwardly and publicly” live out their religious tenets. Ante , at 3 (opinion of Gorsuch, J.). But those deeply
religious goals confirm why Montana may properly decline to
subsidize religious education. Involvement in such spiritual
matters implicates both the Establishment Clause, see Cutter , 544 U. S., at 714, and the free exercise rights
of taxpayers, “denying them the chance to decide for themselves
whether and how to fund religion,” Trinity Lutheran , 582
U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 17).
Previously, this Court recognized that a “prophylactic rule against
the use of public funds” for “religious activities” appropriately
balanced the Religion Clauses’ differing but equally weighty
interests. Ibid. The Court maintains that this case differs from Locke because no pertinent “ ‘historic and
substantial’ ” tradition supports Montana’s decision. Ante , at 14. But the Court’s historical analysis is
incomplete at best. For one thing, the Court discounts anything
beyond the 1850s as failing to “establish an early American
tradition,” ante , at 15, while itself relying on examples
from around that time, ante , at 14. For another, although
the States may have had “rich diversity of experience” at the
founding, “the story relevant here is one of consistency.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J.,
dissenting) (slip op., at 11); see also id. , at ___–___
(slip op., at 12–20) (chronicling state histories). The common
thread was that “those who lived under the laws and practices that
formed religious establishments made a considered decision that
civil government should not fund ministers and their houses of
worship.” Id. , at ___ (slip op., at 16). And as the Court’s
recent precedent holds, at least some teachers in religiously
affiliated schools are ministers who inculcate the faith. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S.
171 , 178, 196 (2012); see also ante , at 3 (Gorsuch, J.,
concurring); ante , at 6, 13 (Breyer, J., dissenting).

															The Court further suggests that by abstaining
from funding religious activity, the State is
“ ‘suppress[ing]’ ” and “penaliz[ing]” religious
activity. Ante , at 19–20. But a State’s decision not to fund
religious activity does not “disfavor religion; rather, it
represents a valid choice to remain secular in the face of serious
establishment and free exercise concerns.” Trinity Lutheran ,
582 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at
24). That is, a “legislature’s decision not to subsidize the
exercise of a fundamental right does not infringe the right.” Regan v. Taxation With Representation of Wash. , 461 U.S.
540 , 549 (1983).

															Finally, it is no answer to say that this case
involves “discrimination.” Ante , at 11–12. A “decision to
treat entities differently based on distinctions that the Religion
Clauses make relevant does not amount to discrimination.” Trinity Lutheran , 582 U. S., at ___ (Sotomayor, J.,
dissenting) (slip op., at 22). So too here.

															*  *  *

															Today’s ruling is perverse. Without any need
or power to do so, the Court appears to require a State to
reinstate a tax-credit program that the Constitution did not demand
in the first place. We once recognized that “[w]hile the Free
Exercise Clause clearly prohibits the use of state action to deny
the rights of free exercise to anyone, it has never meant that a
majority could use the machinery of the State to practice its
beliefs.” Schempp , 374 U. S., at 226 (emphasis
deleted). Today’s Court, by contrast, rejects the Religion Clauses’
balanced values in favor of a new theory of free exercise, and it
does so only by setting aside well-established judicial
constraints.

															I respectfully dissent. Notes 1 To revive their
as-applied challenge, petitioners rely on Griffin v. School Bd. of Prince Edward Cty. , 377
U.S. 218 (1964), for the proposition that eliminating a public
benefit does not always remedy discrimination. See Reply Brief 5.
But Griffin is inapposite. There, a Virginia county closed
its public schools and so-called “private schools” were set up in
their place to avoid a court desegregation order. See 377 U. S., at
223. These so-called private schools “were open to whites only and
. . . were in fact run by a practical partnership between
State and county, designed to preserve segregated education.” Palmer v. Thompson , 403 U.S.
217 , 221–222 (1971). That is nothing like what the Montana
Supreme Court’s remedy achieved here. Nor have petitioners said
otherwise; there is no allegation that Montana confers clandestine
tax credits solely to secular schools. 2 Petitioners here have not
asserted a free exercise claim on a theory that they were victims
of religious animus, either. Cf. Church of Lukumi Babalu Aye,
Inc. v. Hialeah , 508 U.S.
520 , 533 (1993). Instead, one concurrence seeks to make the
argument for them while attempting to compare the state
constitutional provision here with a nonunanimous jury rule rooted
in racial animus. Ante , at 1 (opinion of Alito, J.) (citing
the dissent in Ramos v. Louisiana , 590 U. S. ___
(2020)). But those questions are not before the Court. In any case,
the concurrence’s arguments are as misguided as they are misplaced.
Citing the Court’s opinion in Ramos , the concurrence
maintains that a law’s “ ‘uncomfortable past’ must still be
‘[e]xamined.’ ” Ante , at 10 (opinion of Alito, J.). But
as previously explained: “Where a law otherwise is untethered to
[discriminatory] bias—and perhaps also where a legislature actually
confronts a law’s tawdry past in reenacting it—the new law may well
be free of discriminatory taint.” Ramos , 590 U. S., at
___ (Sotomayor, J., concurring in part) (slip op., at 4). That
could not “be said of the laws at issue” in Ramos . Ibid. It can be here. See Part II, infra . The
concurrence overlooks the starkly different histories of these
state laws. Also missing from the concurrence (and the amicus briefs it repeats) is the stubborn fact that the
constitutional provision at issue here was adopted in 1972 at a
convention where it was met with overwhelming support by religious
leaders (Catholic and non-Catholic), even those who examined the
history of prior no-aid provisions. See Brief for Respondents
16–27; 6 Montana Constitutional Convention 1971–1972 Proceedings
and Transcript, pp. 2012–2013, 2016–2017 (Mont. Legislature and
Legislative Council); see also ante , at 12–13 (Breyer, J.,
dissenting); Brief for Public Funds Public Schools
as Amicus Curiae 5–11; Brief for Montana
Constitutional Convention Delegates as Amici
Curiae 19–25. These supporters argued that it would be
wrong to put taxpayer dollars to religious purposes and that it
would invite unwelcome entanglement between church and
state.  See, e.g. , U. S. Const., Amdt. 1;
Brief for Respondents 20. 3 Petitioners’ as-applied
challenge fails under Trinity Lutheran for the reasons
stated above: The Montana Supreme Court’s remedy does not put
petitioners to any “choice” at all. Rather, petitioners are free to
send their children to any secondary school they wish while
practicing their religious beliefs, and no one receives a tax
credit for their school choice. 4 Locke confirms
that a facial challenge to no-aid provisions must fail. But cf. ante , at 13–14 (majority opinion). In Locke , this
Court upheld the application of a materially similar no-aid
provision in Washington State, concluding that the Free Exercise
Clause permitted Washington to forbid state-scholarship funds for
students pursuing devotional theology degrees. 540 U. S., at
721.