Espinoza, Government Funding, and Religious Choice

19 Pages Posted: 25 Aug 2020 Last revised: 2 Nov 2020

See all articles by Thomas C. Berg

Thomas C. Berg

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Douglas Laycock

University of Virginia School of Law

Date Written: August 24, 2020


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

Suggested Citation

Berg, Thomas Charles and Laycock, Douglas, Espinoza, Government Funding, and Religious Choice (August 24, 2020). Journal of Law and Religion, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2020-61, U of St. Thomas (Minnesota) Legal Studies Research Paper No. 20-19, Available at SSRN:

Thomas Charles Berg (Contact Author)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )

1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

Douglas Laycock

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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