Espinoza v. Montana Department of Revenue:

The Free Exercise Clause Prevails


Martha McCarthy


The Supreme Court delivered a precedent-setting decision on June 30, 2020, Espinoza v. Montana Department of Revenue.1 435 P.3d 603 (Mont. 2018), rev’d, 140 S. Ct. 2246, 20 WL 3518364 (2020). This commentary is an abbreviated version of a longer treatise addressing the Espinoza case, Martha McCarthy, Espinosa v. Montana Department of Revenue: The Demise of State No-Aid Clauses (forthcoming in the Education Law Reporter). The facts and holding of this case have already been addressed in the Canopy Forum,2 See Charles J. Russo and William E. Thro, Born of Bigotry, Died in Religious Liberty: The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice, Canopy Forum. so I will only summarize them here. Then, following a brief discussion of the Court’s distinction between religious status and use, I will focus on implications of Espinoza for state restrictions on aid to religious schools, church-state relations, and education in our nation.


Litigation Overview

In 2018, the Montana Supreme Court became the first state high court to strike down a tax credit/scholarship program designed to increase private school choice. The program at issue was adopted in 2015 and provided taxpayers a dollar-for-dollar tax credit up to $150.00 to make donations for student scholarships at qualifying private schools. After the Montana Department of Revenue enacted a rule excluding religious schools so the program would comply with the Montana Constitution’s provision barring state appropriations to religious schools (no-aid clause), parents of students attending a religious school brought suit. The lower court upheld the program without the rule, but the Montana Supreme Court invalidated the entire tax credit/scholarship program, reasoning that the program abridged the no-aid clause since the scholarships flowed to sectarian schools.

Reversing this decision, the U.S. Supreme Court relied heavily on its 2017 opinion in Trinity Lutheran Church v. Comer,3 137 S. Ct. 2012 (2017). where the Court held that a church could not be denied the opportunity to apply for a state grant to resurface the playground for its daycare program. In short, religious institutions have a Free Exercise Clause right to participate in a generally available government program.

Finding a similar Free Exercise Clause entitlement in Espinoza, the Supreme Court ruled that the Free Exercise Clause protects “religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”4 2020 WL 3518364 at*5 (quoting Trinity Lutheran, 137 S. Ct. at 2021)). The majority applied strict judicial scrutiny in assessing the tax credit/scholarship program under Montana’s no-aid provision, emphasizing that aid recipients cannot be disqualified based on religious status unless there is a compelling government interest that is pursued by narrowly tailored means. It declared that Montana’s desire to create greater separation of church and state than required by the Establishment Clause was not a compelling interest that justifies violating the Free Exercise Clause.5 Id., 2020 WL 3518364 at *10.. Five justices signed the majority opinion, but the justices did not speak with a single voice. Three concurring and three dissenting opinions were written in this case.

The Distinction Between Religious Status and Religious Use

The Espinoza majority went to great lengths to distinguish its decision from the Court’s 2004 conclusion in Locke v. Davey6 Locke v. Davey, 540 U.S. 712 (2004). that states can adopt more stringent anti-establishment provisions than included in the First Amendment. In Locke, the plaintiff was denied a scholarship to study for the ministry. The Espinoza majority reasoned that this rejection was upheld because it was based on what the student proposed to do, and not on who he was.7 2020 WL 3518364 at *8.. In contrast, the majority concluded that Montana’s no-aid provision bars aid simply because of what they are – religious schools. It rejected the Department of Revenue’s contention that Trinity Lutheran involved a distinction based on religious status whereas Espinoza dealt with religious use of the funds for sectarian instruction.

 It is difficult to argue that the tax-credit/scholarship program at issue does not involve religious use of the money. Even Justice Gorsuch, who signed the Espinoza majority opinion, wrote separately that the status/use distinction is difficult to justify.8Id. at *22 (Gorsuch, J. concurring). Religious schools use tuition money to advance their faith throughout the curriculum and pay teachers to promote religious tenets; they are considered sectarian because of what they do. The Espinoza tax credit/scholarship program definitely focuses on use of the money as did use of the state scholarship to study for the ministry in Locke.9 See Locke, 540 U.S. 712 (2004)..If the Espinoza majority based its holding on the status/use distinction, the Montana Supreme Court’s ruling should have been affirmed.

Demise of State No-Aid Clauses

 Thirty-eight state constitutions contain no-aid provisions that bar the appropriation of public monies to religious institutions or for religious education, similar to Montana’s clause at issue in Espinoza. The Espinoza majority eliminated any ambiguity left by Trinity Lutheran as to its position that such state no-aid provisions abridge the First Amendment. The majority reiterated that 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.”102020 WL 3518364 at *10 (citing Trinity Lutheran, 137 S. Ct. at 2024, quoting Widmar v. Vincent, 454 U.S. 263, 276 (1981)). The Court has set a very “disturbing trend that devalues a core aspect of our religious liberty tradition – the ban on government aid to religion.”11 Holly Hollman, Symposium: What’s “The Use” of the ConstSiitution’s Distinctive Treatment of Religion If It Is Disregarded as Discrimination?, SCOTUSblog, July 2, 2020, https://www.scotusblog.com/2020/07/symposium-whats-the-use-of-the-constitutions-distinctive-treatment-of-religion-if-it-is-disregarded-as-discrimination/.

“Nineteenth century cabinet card of James G. Blaine, in the “Cabinet Series.” / Smallcurio / Wikimedia CC0

The Espinoza majority’s reference to state constitutional no-aid provisions as Blaine Amendments is not correct. Representative James Blaine from Maine proposed a constitutional amendment in 1875 that would in part have barred use of public funds in religious schools.12See The Blaine Amendment, Berkley Ctr. for Religion, Peace & World Affairs, https://berkleycenter.georgetown.edu/quotes/the-blaine-amendment (last visited July 20, 2020); Jill Goldenziel, Blaine’s Name in Vain?: State Constitutions, School Choice, and Charitable Choice, 83 Denver U. L. Rev.57 (2005). Even accepting that the failed Blaine amendment reflected anti-Catholic bias, fifteen state no-aid provisions were enacted prior to 1875, and subsequent no-aid clauses were modeled after the earlier ones and not the ill-fated Blaine Amendment.13 See Steven K. Green, Symposium: RIP State “Blaine Amendments” – Espinoza and the “No-Aid” Principle , SCOTUSblog, June 30, 2020, https://www.scotusblog.com/2020/06/symposium-rip-state-blaine-amendments-espinoza-and-the-no-aid-principle/. Several courts have interpreted such no-aid clauses adopted after 1875 as protecting religious liberty and reserving government funds for public purposes.14 See Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) (en banc); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).. Moreover, the Supreme Court in Locke found no connection between the Blaine Amendment and the state of Washington’s no-aid provision.15 540 U.S. 712, 724 (2004). Similarly, Missouri’s no-aid provision at issue in Trinity Lutheran does not reflect religious bias as it contains an explicit ban on discrimination against religious institutions.16Mo. Const. Art. I, § 7. And ministers of all faiths supported Montana’s revision of its no-aid provision in 1972, which was intended to reserve government funds for public education.17 Mont. Const. Art. X, § 6(1). Thus, it is quite a leap to conclude that Montana’s no-aid provision and similar clauses in other states are all intended to discriminate against religion.

Prior to 2017, states assumed that they could adopt stricter provisions in requiring church-state separation than demanded by the Supreme Court’s interpretations of the Establishment Clause and could decide not to allow state funds to flow to religious institutions.18See, e.g., Espinosa v. Mont. Dep’t of Rev., 435 P.3d 603 (Mont. 2018); Trinity Lutheran Church v. Pauley, 788 F.3d 779, 784 (8th Cir. 2015).For example, the First Circuit declared in 2004 “that state entities . . . may act upon their legitimate concerns about excessive entanglement with religion, even though the Establishment Clause may not require them to do so.”19 Eulitt v. Me. Dep’t of Educ., 386 F.3d 344, 355 (1st Cir. 2004). The majority and concurring Espinoza opinions “have now tainted all no aid provisions and the more general principle against government funding of religion, with the aura of discrimination.”20 Green, supra note 13. Equating these no-aid provisions with religious discrimination simply is not accurate.

Impact on Church-State Relations

The Supreme Court has created a sea change in First Amendment doctrine by reordering the relationship between the Establishment and Free Exercise Clauses. No longer is there a wall of separation between church and state, and it appears that the history of our nation in terms of government relations with religion has been forgotten or dismissed. After all, the U.S. was the first nation to adopt an Establishment Clause in its Constitution, building on James Madison’s Memorial and Remonstrance Against Religious Assessments and Thomas Jefferson’s Statute for Religious Freedom in Virginia.21See James Madison, Memorial and Remonstrance Against Religious Assessments (1785); Thomas Jefferson, An Act for Establishing Religious Freedom (1786); The Founders’ Constitution (Philip B. Kurland & Ralph Lerner, eds., 1987), at 83. Both documents voiced a strong separationist position and eschewed government aid for religion. Prohibition of government establishment of religion has been an important principle throughout our nation’s history, and courts traditionally held that the state cannot tax citizens to support religious institutions.

In the first major Establishment Clause case in 1947, Everson v. Board of Education, the Supreme Court strongly defended church-state separation. The Court stated: “No tax in any amount, large or small, can be levied to support any religious activities or institutions . . . to teach or practice religion. . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”22330 U.S. 1, 15–16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)) (nonetheless upholding transportation aid for sectarian school students and equating it with fire and police protection that benefits the child and not the church). This judicial sentiment prevailed for several decades.

The Supreme Court has created a sea change…No longer is there a wall of separation between church and state, and it appears that the history of our nation in terms of government relations with religion has been forgotten or dismissed.

In recent years, the Supreme Court has more leniently interpreted the Establishment Clause as allowing various types of public aid to flow to religious schools, using the “child benefit” rationale23See, e.g., Bd. of Educ. v. Allen, 392 U.S. 236 (1968) (allowing a state to loan secular textbooks for use by secondary parochial school students). or concluding that the indirect aid to sectarian schools was based on parental decisions or was confined to secular purposes in the religious institutions.24See, e.g., Ariz. Sch. Christian Tuition Org. v. Winn, 563 U.S. 125 (2011) (rejecting taxpayer standing to challenge a tax-credit/scholarship program because the credits were not state money); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (finding no Establishment Clause violation in a voucher program under which almost all voucher students attended religious schools); Mitchell v. Helms, 530 U.S. 793 (2000) (upholding federal aid to purchase instructional materials, library books, and equipment for student use in sectarian schools as long as the aid is distributed based on secular criteria in a nondiscriminatory manner and flowed to religious schools because of parents’ choices); Agostini v. Felton, 521 U.S. 203 (1997) (overturning a precedent in holding that public school personnel can provide remedial instruction in religious schools); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, (1993) (allowing use of public funds to support sign language interpreters in religious schools because the child is the primary beneficiary of the aid). However, in none of these cases did the Court hold that religious schools were entitled under the Free Exercise Clause to such government aid available to secular schools.25 Most courts, whether upholding or striking down a practice under the Establishment Clause, have not even mentioned free exercise rights, but the First Circuit recognized that the Free Exercise Clause was not violated in excluding religious schools from Maine’s tuition reimbursement program, noting that any minor free exercise interference would be justified by the state’s overriding antiestablishment concern, Strout v. Albanese, 178 F.3d 57, 65 (1st Cir. 1999). But see infra text accompanying note 37.

According to the Supreme Court in Locke,the “play in the joints” between the religion clauses means that some activities may be permitted under the Establishment Clause although not required by the Free Exercise Clause.26540 U.S. 712, 718-719 (2004) (citing Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970)).Until recently, this never meant that the Free Exercise Clause was overriding or that the state’s efforts to guard against religious establishment represented discrimination against religion. Although Justice Thomas asserted in his Espinoza concurrence that the Free Exercise Clause has rested on “the lowest rung of the Court’s ladder of rights,”272020 WL 3518364 at *15 (Thomas, J., concurring). that clearly is not true today. The Free Exercise Clause trumps states’ rights to preserve their funds for public rather than religious purposes and elevates the Free Exercise Clause above the Establishment Clause.

Justice Sotomayor, dissenting in Espinoza, reiterated that “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.”282020 WL 3518364 at *37 (Sotomayor, J., dissenting) (quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring). Judge Sandefur, concurring in the Montana Supreme Court’s Espinoza decision, similarly declared that while the Establishment Clause provides an explicit prohibition on government action, “the Free Exercise Clause is nothing more than a protective shield against government interference in the free exercise of a citizen’s chosen religion. . . . The Free Exercise Clause is not, nor did the Framers intend it to be, a sword of affirmative right to receive government aid.”29435 P.3d at 624 (Sandefur, J., concurring). The current Supreme Court majority’s position negates this longstanding principle by considerably weakening the Establishment Clause, and the Free Exercise Clause has indeed become a sword.

Prohibition of government establishment of religion has been an important principle throughout our nation’s history, and courts traditionally held that the state cannot tax citizens to support religious institutions.

The Supreme Court majority appears to have disregarded that religious institutions must be treated differently to respect the Establishment Clause and religious liberty. A majority of the justices now seem to consider such differential treatment discriminatory, at least in terms of eligibility for government benefits. If the drafters of the First Amendment had intended for the government to treat religious and secular entities similarly, then they would not have included the Establishment Clause. One is tempted to interpret the Espinoza and Trinity Lutheran decisions as adopting the position that differential treatment on the basis of religion always constitutes discrimination.

However, it appears that this is not the case if the special treatment advantages religion. In two decisions rendered only a week after Espinoza, the Supreme Court required differential treatment based on religion under the banner of protecting religious liberty. In Our Lady of Guadalupe School v. Morrissey, the Court expansively interpreted the ministerial exception in concluding that religious schools must be treated differently from secular schools in being exempt from federal civil rights laws in dismissing their employees.30140 S. Ct. 2049 (2020) (rejecting religious school employees’ claims of violations of the American with Disabilities Act and the Age Discrimination in Employment Act). On the same day, in Little Sisters of the Poor v. Pennsylvania, the Court supported differential treatment by holding that employers can refuse to support contraception coverage in employee health plans for religious or moral reasons.31140 S. Ct. 2367 (2020) (exempting employers from the provision of the Patient Protection and Affordable Care Act requiring such no-cost coverage). So different treatment based on religion was required in these cases, but not in Espinosa and Trinity Lutheran involving the receipt of government benefits.

Implications for Education

Parents in our nation have had the right to select private education for their children since the 1920s,32 SeePierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (recognizing private schools’ rights to exist and parents’ rights to select private education for their children). but this has not meant that the government must foot the bill. The Supreme Court declared in 1973 that private schools are not entitled to a portion of public funds allocated for educational textbooks in secular subjects.33Norwood v. Harrison, 413 U.S. 455, 462 (1973). State courts until recently had similarly upheld restrictions on loaning textbooks for use by students in sectarian schools.34See, e.g., In re Certification of a Question of Law from the U.S. Dist. Ct., 372 N.W.2d 113 (S.D. 1985) (striking down a textbook loan program to religious schools because the state constitution is more restrictive than the Establishment Clause); Bloom v. Sch. Comm. of Springfield, 379 N.E.2d 578 (Mass. 1978) (finding that a statute requiring school committees to loan textbooks to students at nonpublic schools violated the state constitution). Most recently, the New Mexico Supreme Court ruled in 2015 that the state constitution’s no-aid clause precluded loaning textbooks to students attending religious schools. However, the court changed its mind and rejected the challenge to this practice after its earlier decision was sent back for reconsideration in light of Trinity Lutheran.35 Moses v. Skandera, 367 P.3d 838 (N.M. 2015), vacated sub nom. N.M. Ass’n of Nonpublic Schs. v. Moses, 137 S. Ct. 2325 (Mem.) (2017) (granting cert., vacating judgment, and remanding to the Supreme Court of New Mexico for reconsideration in light of Trinity Lutheran, 137 S. Ct. 2012), on remand sub nom. Moses v. Ruszkowski, 458 P.3d 406 (N.M. 2018). Other states will likely drop such restrictions on public aid to religious schools, given the Espinoza decision.

The Espinoza majority waited until very late in its opinion to recognize that the state does not have to provide funds for any private schools;362020 WL 3518364 at *11. such money can be reserved for public education. But if a state wants to increase parental choice through a voucher or tax benefit program, it cannot exclude religious schools that house the majority of private school students.

The Supreme Court majority appears to have disregarded that religious institutions must be treated differently to respect the Establishment Clause and religious liberty.

Already litigation is in progress in Maine, supported by the Justice Department, challenging the exclusion of religious schools from the state’s tuition reimbursement program under which students in districts without high schools are provided funds up to a cap to pay high school tuition in neighboring public school districts or in secular private schools.37See Thomas Harrison, Maine Ban on Religious School Funding May Survive Appeal, Courthouse News Service, Jan. 8, 2020, https://www.courthousenews.com/maine-ban-on-religious-school-funding-may-survive-appeal/. Even though this program has been upheld by both state and federal courts,38See Eulitt v. Me. Dep’t of Educ., 386 F.3d 344 (1st Cir. 2004); Stout v. Albanese, 178 F.3d 57 (1st Cir. 1999); Anderson v. Durham, 895 A.2d 94 (Me. 2006); Bagley v. Raymond Sch. Dep’t, 728 A.2d 127 (Me. 1999). plaintiffs now are asserting a free exercise right for religious schools to participate in the program. The outcome of this decision will affect tuition reimbursement programs in other New England states, as well.

The grounds to challenge voucher and tax credit/scholarship programs have been greatly restricted. Most past challenges to private school choice strategies have relied on state constitutions’ no-aid clauses at least in part.39 See e.g., Taxpayers for Pub. Educ. v. Douglas Cty. Sch. Dist., 351 P.3d 461 (Colo. 2015) (en banc) (striking down a school district’s voucher program as abridging the state’s antiestablishment provision), vacated, 137 S. Ct. 2325 (Mem.) (2017) (granting cert., vacating judgment, and remanding to the Colorado Supreme Court for reconsideration in light of Trinity Lutheran, 137 S. Ct. 2012), dismissed as moot (after the school board eliminated the voucher program), 2018 WL 1023945 (Colo. Jan. 25, 2018). For a discussion of litigation involving voucher and tax credit programs, see Edchoice, The ABCs of School Choice, 2019, https://www.edchoice.org/wp-content/uploads/2019/01/The-ABCs-of-School-Choice-2019-Edition.pdf. State high court decisions to date have been mixed on voucher programs,40See Edchoice, supra note 39. A challenge currently is being mounted to Ohio’s voucher program that allegedly redirects tax funds from public to private schools. See Council of School Attorneys, Advocacy Group Plans to File Suit Challenging the Legality of Ohio’s Voucher Program, July 12, 2020. but prior to the Montana Supreme Court decision,41435 P.3d 603 (Mont. 2018), rev’d, 140 S. Ct. 2246 (2020). no tax credit/scholarship program had been invalidated by a state’s highest court. The non-religious grounds do not seem very promising to challenge such initiatives, even though the Florida Supreme Court concluded that a voucher program abridged the state constitution’s education clause in 2006,42See Bush v. Holmes, 919 So. 2d 392 (Fla. 2006) (finding the voucher program in violation of the state constitution’s education clause that requires the legislature to provide for a free, uniform system of public education). and a few other state courts have used non-religious grounds to strike down voucher programs.43 See La. Fed’n of Teachers v. Louisiana, 118 So. 3d 1033 (La. 2013) (reasoning that the voucher program abridged the state constitutional requirement for the legislature to equitably distribute education funds under a minimum foundation program; it diverted funds intended for public education into private schools); Owens v. Colo. Cong. of Parents, Teachers, & Students, 92 P.3d 933 (Colo. 2002) (striking down a pilot voucher program under the local control provision of the state constitution because the program took control away from local school districts). Also, a Davidson County Chancery Court ruled that the Tennessee Education Savings Account pilot program violates the Home Rule Amendment, Art. XI, Sect. 9 of the Tennessee Constitution, Metro. Gov’t of Nashville and Davidson Cty. v. Tenn. Dep’t of Educ., No. 20-0143-11 (Ch. Ct., 20th Jud. Dist., Davidson Cty. May 4, 2020). The state has petitioned the Tennessee Supreme Court to intervene and bypass the appeals court to stay this order so the program can be implemented in the fall. See Council of School Attorneys, Tennessee Asks State Supreme Court to Assume Jurisdiction in School Voucher Case, June 6, 2020.

Espinoza’s implications for public education extend beyond taking government funds away from public schools and encouraging private school enrollment. Might staff members claim Free Exercise Clause rights to voice religious views in public schools? Teachers and coaches have not been successful in this regard previously, but they did not have an elevated Free Exercise Clause to use.44See Kennedy v. Bremerton Sch. Dist., 869 F.3d 813 (10th Cir. 2017), cert. denied, 139 S. Ct. 634 (2019) (holding that a public school coach was speaking as an employee when he prayed on the football field immediately after games and thus his speech was not constitutionally protected). In a concurring opinion to the denial of review, Justice Alito (joined by Thomas, Gorsuch, and Kavanaugh, J.J.) noted that the lower courts did not address the religious rights potentially at stake, 139 S. Ct. 634 (2019). Justice Thomas mentioned again in his Espinoza concurrence that courts should reconsider such free exercise rights of school coaches and teachers. 2020 WL 3518364 at *14 (Thomas, J., concurring). Students might also assert a free exercise right to voice their religious views, even if such expression conflicts with the school district’s anti-bullying policy.

Espinoza provides an incentive for states to expand private school choice options that are funded in part with public money or funds that would be in the public coffers if tax credits were not taken. The Trump administration strongly advocates for education in our nation to become privatized. Education Secretary DeVos called the Espinoza decision “a historic victory for America’s students,” which “marks a turning point in the sad and static history of American education.”45Secretary DeVos, quoted in Mark Walsh, U.S. Supreme Court Rejects Prohibition on Tax-Credit Scholarships for Religious Schools, Educ. Wk, July 15, 2000, at 8. A privatized system of education reflects quite different values from the focus on the common good and general welfare that guided the common school movement in the 1800s. Privatization strategies focus on individual advancement, and families are likely to select schools with students who look and think like them, ensuring that they interact with a homogeneous group. The students in public schools may disproportionately be those with special needs that private schools are not obligated to accept. The impact on the nature and structure of education in our nation will indeed be huge.

With the current awareness of educational inequities and commitment to increasing inclusion in our schools and advancing social justice goals, the privatization movement seems counterproductive by nurturing segregation along several dimensions. Studies have reported that voucher schools do not protect marginalized students against discrimination based on religion, race, national origin/ethnicity, disability, sex, and sexual orientation.46See, e.g., Aria Bendix, Do Private-School Vouchers Promote Segregation? The Atlantic, Mar. 22, 2017; Julie Donheiser, Choice for Most: In Nation’s Largest Voucher Program, $16 Million Went to Schools with Anti-LGBT Policies, Chalkbeat, Aug. 10, 2017, https://www.chalkbeat.org/posts/us/2017/08/10/choice-for-most-in-nations-largest-voucher-program-16-million-went-to-schools-with-anti-lgbt-policies/; Suzanne E. Eckes, Julie Mead, & Jessica Ulm, Dollars to Discriminate: The (Un)intended Consequences of School Vouchers, 91 Peabody J. Educ. 537 (2016). A Century Foundation Study reported in 2017 that voucher schools do not target disadvantaged students and are exacerbating socioeconomic and racial segregation.47Halley Potter, Do Private School Vouchers Pose a Threat to Integration? Century Found., Mar. 21, 2017, https://tcf.org/content/report/private-school-vouchers-pose-threat-integration/?agreed=1 In addition, the significant impact of COVID-19 on state and school district budgets may further reduce the money available for financially strapped public schools that will continue to serve the students with the greatest needs.

Conclusion

The United States attempted to avoid the religious conflicts experienced by other countries by including the Establishment Clause in the First Amendment. However, the national commitment to church-state separation, which has been the strongest in the school context, is no longer the guiding principle. The Supreme Court in Espinoza has completed what it started in Trinity Lutheran by solidifying a hierarchy between the religion clauses, with free exercise rights dominant. The Court has dismissed judicial and historical precedent in negating states’ discretion to determine their own level of antiestablishment. Unfortunately, entanglement between church and state in our nation will surely follow. ♦


Martha McCarthy, Presidential Professor, Loyola Marymount University, and Chancellor’s Professor Emeritus, Indiana University, teaches and conducts research pertaining to educational law and policy. She has served as President of the Education Law Association and the University Council for Educational Administration.