What the Espinoza Decision Means for Other Aspects of Religious Freedom

The Supreme Court’s decision in Espinoza vs. Montana Department of Revenue was a significant win for advocates of school choice and, more broadly, for those who believe faith-based institutions should be able to more fully engage in government programs. 

The majority was, however, equivocal on a key point—to what extent public dollars can be used for religious purposes. That is the ground on which Espinoza’s supporters and opponents will clash in the years ahead, and there will be clashes. It’s not just about religiously affiliated schools:  Nonprofits are engaged in so many education matters—developing curriculum, tutoring, offering online courses, preparing teachers, and more—and many of them are religiously affiliated. In the short-term, Espinoza means more than a dozen states have a freer hand in enacting private-school choice programs. But in the longer term, Espinoza’s ripples could affect state charter-school laws, professional development dollars, state and federal funding formulas, and much more. 

Though the seven separate opinions leave a number of questions unanswered, they do forecast where future battles will be fought and suggest, unsurprisingly,  that Chief Justice John Roberts will be the key vote.

The court’s Espinoza decision, like the Zelman vs. Simmons-Harris (2002) ruling that school-voucher programs are permissible under the Establishment Clause, is a win for pluralism, educational and otherwise. This particular case is about an education tax-credit program in Montana, namely whether religious schools can participate in a scholarship program funded by private donors who receive a tax benefit for their contributions. But the larger issue is whether public bodies can exclude faith-based organizations from participation in government programs.