Published by the Freedom From Religion Foundation, Inc. FFRF.org

Law student essay contest: Third place — Libby Jacobson

Vol. 37 No. 05 June/July 2020
Libby Jacobson                                                                                                                                                                                                                                                                                                                       

FFRF awarded Libby $2,000 for her essay.

By Libby Jacobson

I. Introduction

While the Supreme Court does not recognize the right to public education as a fundamental right, the plaintiffs in Espinoza v. Montana Department of Revenue asked the court to recognize an analogous right, but a fundamental right to funding private religious education. Framed as a violation of the petitioners’ Free Exercise rights, the alleged infringement was a denial of public funding to pay for private religious education. This lack of access to public funds is not an infringement of any fundamental right. Thus, Montana’s No-Aid Clause is subject only to rational review.

II. Free Exercise, For Free

1. Free Exercise Freedoms

Under the Free Exercise Clause, there is a fundamental right to be free from unequal treatment due to religious status. Thus, in legislating between the Free Exercise Clause and Establishment Clause, a state may not support any specific church or exclude any individuals due to their religious beliefs or lack thereof.

Following the Madisonian view, this understanding of the fundamental right to Free Exercise diffuses and decentralizes power to prevent dominance by any particular sect or religion.

Since there is freedom to exercise religion without interference from the state, it follows that the right to free exercise includes the option of parents to choose to send their children to private religious schools. In choosing a private religious school, a parent exercises their religious freedom. But again, there is an important line to be drawn with regard to Free Exercise. The fundamental right of Free Exercise is absolute with regard to beliefs. However, the right to religiously motivated conduct is not absolute.

For example, the Supreme Court upheld a law forbidding polygamy, noting in Reynolds v. United States that Congress could “reach actions which were in violation of social duties or subversive of good order.” The court noted that polygamy had consistently been treated as an offense against society throughout history.

In Goldman v. Weinberger, the court relied on the need to defer to the military in denying the claim of a Jewish doctor in the Air Force who said his religion required he wear a yarmulke in violation of the dress code. As in Reynolds, in Goldman it was only the conduct being regulated. In both instances, the parties were free to exercise their own beliefs.

2. Fundamental funds

At stake in cases regarding No-Aid clauses, and raising issues related to the Free Exercise and Establishment Clauses, are schemes providing benefits to taxpayers. These schemes, like Reynolds and Goldman, concern regulation of religiously motivated conduct, not beliefs. The petitioners’ contention that the No-Aid Clause violates their right to free exercise rests on the assertion that without these funds, the petitioners would not be able to choose to send their children to private religious schools.

In Espinoza, the program struck down under Montana’s No-Aid Clause was in essence a tuition credit. Individuals received tax credits for donating to nonprofit student scholarship organizations. Then, these organizations used the donations to fund scholarships for qualified education providers. Despite various degrees of separation, the program operated to lessen tuition expenses for parents choosing to send their children to private religious institutions; in fact, the petitioners relied on the tax credit to create financial aid to allow them to send their children to these religious private schools. Without the program, the parents in Espinoza could experience financial hardship in sending their children to religious private schools.

However, the Supreme Court has established that fundamental rights do not include the right to receive government funding in the exercise of that right. As Justice Lewis Powell explained in Maher v. Roe, a fundamental right “implies no limitation on the State to make a value judgment . . . and to implement that judgment by the allocation of public funds.”

Justice Potter Stewart echoed Justice Powell’s reasoning four years later in Harris v. McRae, stating that the fundamental right of abortion “does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” In both instances, the court found that while the ability to finance abortions may have become more difficult given the specific legislation, the legislation did not infringe the fundamental right to abortion.

Similarly, while the court recognizes a fundamental right to marry, it has upheld the constitutionality of laws that may, in effect, discourage marriage. In Califano v. Jobst, the court upheld a provision of the Social Security Act that terminated benefits for disabled children covered as dependents of wage earners when those children got married. The court acknowledged that the exception could have an impact on a desire to marry, but ultimately held that the provision was constitutional.

In Bowen v. Owens, the Supreme Court again recognized the fundamental right to marriage, but allowed the denial of funds. In Owens, a widowed spouse of a wage earner sued regarding a different provision of the Social Security Act: a provision denying payment of survivor’s benefits to a divorced widowed spouse. Both cases involved the right to marry, a fundamental right, but neither provision infringed on that right. Instead, the provisions financially disincentivized the right, but that is neither a de facto or de jure ban on the right to marriage.

III. Conclusion

Thus, it follows that in a case involving a No-Aid Clause, the right to free exercise of religion does not include a right to public funds to realize all the advantages of that freedom. Parents, like the parents in Espinoza, are able to send their children to whichever school they choose. They may exercise their religion in opting to send their children to private religious schools. What the No-Aid Clause prevents is funding of that decision. The choice of states like Montana to enact No-Aid Clauses and prohibit funds for religious education is not a Free Exercise infringement. It is a play in the joints between the Free Exercise and Establishment Clauses because funds themselves are not fundamental.

Libby was born in China and grew up in Duluth, Minn. She has worked as a sales manager at Macy’s and a media buyer at Haworth. She backpacked in Europe for a month when she decided to go to law school.