Espinoza, Government Funding, and Religious Choice

Abstract

The Supreme Court’s decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from a state program of financial aid to private schools, is another incremental step in the Court’s long-running project to reform the constitutional law of financial aid to religious institutions. There was nothing surprising about the decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down.

But the Court has been steadily marching away from that rhetoric for thirty-five years now.
The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choice and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses—to minimize the government’s interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.

Keywords: Free exercise of religion, government funding, discrimination toward religion, neutrality toward religion, religious choice, religious voluntarism, substantive neutrality, establishment of religion, direct aid, vouchers, conditions on funding, religious exemptions