Amicus Curiae Brief — Kendra Espinoza, et al., Petitioners v. Montana Department of Revenue, et al.

No. 18-1195

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------KENDRA ESPINOZA, JERI ELLEN ANDERSON,

and JAIME SCHAEFER,

Petitioners,

v.

MONTANA DEPARTMENT OF REVENUE, and

GENE WALBORN, in his official capacity as DIRECTOR

of the MONTANA DEPARTMENT OF REVENUE,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Montana Supreme Court

-----------------------------------------------------------------BRIEF OF CHRISTIAN LEGAL SOCIETY,

AMERICAN ASSOCIATION OF

CHRISTIAN SCHOOLS, COUNCIL FOR

CHRISTIAN COLLEGES AND UNIVERSITIES,

EVANGELICAL COUNCIL FOR FINANCIAL

ACCOUNTABILITY, INSTITUTIONAL RELIGIOUS

FREEDOM ALLIANCE, NATIONAL ASSOCIATION

OF EVANGELICALS, AND QUEENS FEDERATION

OF CHURCHES AS AMICI CURIAE

IN SUPPORT OF THE PETITION

-----------------------------------------------------------------THOMAS C. BERG

RELIGIOUS LIBERTY

APPELLATE CLINIC

UNIV. OF ST. THOMAS

SCHOOL OF LAW (MINNESOTA)

MSL 400

1000 LaSalle Avenue

Minneapolis, MN 55403

(651) 962-4918

tcberg@stthomas.edu

KIMBERLEE WOOD COLBY

Counsel of Record

CENTER FOR LAW AND

RELIGIOUS FREEDOM

CHRISTIAN LEGAL SOCIETY

8001 Braddock Road

Suite 302

Springfield, VA 22151

(703) 894-1087

kcolby@clsnet.org

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does it violate the First Amendment’s Free Exercise Clause to invalidate a generally available and religiously neutral student-aid program simply because

the program affords students the choice of attending

religious schools?

ii

TABLE OF CONTENTS

Page

Table of Authorities .............................................

iv

Interest of Amici Curiae ......................................

1

Introduction and Summary of Argument ............

1

Argument .............................................................

6

I.

Denial of Benefits May Violate the Free

Exercise Clause Not Only When It Singles

Out Individuals and Entities with a Religious “Status” or Identity, but Also When

It Singles Out Religious Uses of the Benefit ...............................................................

6

A. Ignoring Discrimination Against Religious Uses is Inconsistent with the

Text of the Free Exercise Clause .........

6

B. Discrimination Against Religious

Uses is Impermissible Under This

Court’s Free Exercise Clause Decisions .....................................................

7

C. A Distinction between Religious Status and Use is Unstable and Unworkable ...................................................... 10

D. Locke v. Davey Provides No Basis for

Broad Discrimination Against Religious Uses of Benefits ......................... 13

II.

Discrimination Against Religious Options

in Generally Available Student-Aid Programs Violates the Fundamental Principles of the Religion Clauses: Neutrality

and Choice in Matters of Religion ............. 15

iii

TABLE OF CONTENTS—Continued

Page

A. The Free Exercise Clause, and the

Religion Clauses in General, Preserve

Religious Choice and Government Neutrality toward Religious Activity............ 16

1. Neutrality, choice, and government

aid benefiting religious education ..... 18

2. Neutrality and choice in other categories of Religion Clause cases ........ 19

B. Tax Credits for Contributions Benefiting

Students’ Educational Choices Are a

Particularly Clear Instance of Promoting Religious Neutrality and Choice ...... 22

Conclusion............................................................ 27

Appendix: Individual Statements of Interest .......... A-1

iv

TABLE OF AUTHORITIES

Page

CASES

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) .................................................17

Arizona Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) ..................................... 23, 24, 26

Cantwell v. Connecticut,

310 U.S. 296 (1940) ...................................................6

Colorado Christian College v. Weaver,

534 F.3d 1245 (10th Cir. 2008) ................................14

Corporation of Presiding Bishop v. Amos,

483 U.S. 327 (1987) .................................................20

Employment Division v. Smith,

494 U.S. 872 (1990) ............................................. 7, 21

Griffith v. Bower,

747 N.E.2d 423 (Ill. App. 5th Dist. 2001) ...............25

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .................................................20

Kotterman v. Killian,

972 P.2d 606 (Ariz. 1999) .................................. 25, 26

Lee v. Weisman,

505 U.S. 577 (1992) ........................................... 21, 22

Locke v. Davey,

540 U.S. 712 (2004) ..................................... 13, 14, 15

Maryland-National Capital Park and Planning

Comm’n v. American Humanist Ass’n,

Nos. 18-18, 17-1717 .................................................22

v

TABLE OF AUTHORITIES—Continued

Page

McDaniel v. Paty,

435 U.S. 618 (1978) ......................................... passim

Mitchell v. Helms,

530 U.S. 793 (2000) ........................................... 11, 25

Morris County Bd. of Chosen Freeholders

v. Freedom from Religion Found.,

139 S. Ct. 909 (2019) ......................................... 19, 20

Mueller v. Allen,

463 U.S. 388 (1983) .................................................18

Santa Fe Ind. Sch. Dist. v. Doe,

530 U.S. 290 (2000) .................................................21

Sherbert v. Verner,

374 U.S. 398 (1963) ............................................... 7, 8

Thomas v. Review Bd.,

450 U.S. 707 (1981) ......................................... 7, 8, 20

Toney v. Bower,

744 N.E.2d 351 (Ill. App. 4th Dist. 2001) ...............26

Trinity Lutheran Church v. Comer,

137 S. Ct. 2012 (2017) ..................................... passim

Van Orden v. Perry,

545 U.S. 677 (2005) .................................................22

Winn v. Arizona Christian Sch. Tuition Org.,

586 F.3d 649 (9th Cir. 2009), rev’d, 563 U.S.

125 (2011) .................................................... 24, 25, 26

Witters v. Dept. of Servs.,

474 U.S. 481 (1986) .................................................18

vi

TABLE OF AUTHORITIES—Continued

Page

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) .................................................18

Zorach v. Clauson,

343 U.S. 306 (1952) ..................................... 17, 18, 25

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. Amend. I ........................................... passim

Mont. Const. Art. X, §6 .................................................2

OTHER AUTHORITIES

Thomas C. Berg, Vouchers and Religious

Schools, 72 U. Cin. L. Rev. 151 (2003) .....................12

Thomas C. Berg and Douglas Laycock, The Mistakes in Locke v. Davey and the Future of State

Payments for Services Provided by Religious

Institutions, 40 U. Tulsa L. Rev. 227 (2004)...... 14, 16

Douglas Laycock, Comment: Churches, Playgrounds, Government Dollars—And Schools?,

131 Harv. L. Rev. 133 (2017) ...................................12

Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39

DePaul L. Rev. 993 (1990) ................................. 16-17

Douglas Laycock, Theology Scholarships, the

Pledge of Allegiance, and Religious Liberty:

Avoiding the Extremes But Missing the Liberty, 118 Harv. L. Rev. 155 (2004) ..................... 19, 21

vii

TABLE OF AUTHORITIES—Continued

Page

Michael W. McConnell, The Selective Funding

Problem: Abortions and Religious Schools, 104

Harv. L. Rev. 989 (1991) ..........................................11

1

INTEREST OF AMICI CURIAE1

Amici are (1) religious organizations and (2) associations with religious educational institutions as

members. All amici are committed to religious freedom: not government promotion of religion, but freedom for religious individuals and institutions to

practice their faith without unnecessary government

interference. This freedom includes the ability of those

receiving a government educational benefit to choose

to use it at a religious school on the same terms as at

other schools. That freedom is of interest to all amici,

and particularly to those with religious educational institutions among their members.

------------------------------------------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

In this case, the Montana Supreme Court invalidated a religion-neutral tax credit for donations to private schools, solely because some donations under it

would benefit needy students whose families choose religiously affiliated schools. The court invalidated the

program under the state constitution and, in a single

short paragraph, summarily rejected the argument

1

Pursuant to Rule 37.2(a), amici gave all parties’ counsel of

record timely notice of their intent to file this brief. All parties

gave written consent to its filing. In accordance with Rule 37.6,

no counsel for a party authored this brief in whole or in part, and

no person or entity other than the amici, their members, or their

counsel made a monetary contribution intended to fund the

brief ’s preparation or submission.

2

that acting on the basis of a provision singling out religious educational choices violated the First Amendment’s Free Exercise Clause.2 As the petition for

certiorari explains, the Montana court’s decision has

“deepened the long-standing split [in lower courts] on

whether barring religious options from student-aid

programs violates,” among other things, federal free

exercise rights. Pet. 3.

Amici agree that this ongoing division and the uncertainty it causes warrant this Court’s review. We

write to make two further points supporting review.

I. This Court recently held—consistent with its

longstanding, strict prohibitions on discrimination

against religion—that government violates the Free

Exercise Clause when it “den[ies] a generally available

benefit solely on account of [the claimant’s] religious

identity” or status. Trinity Lutheran Church v. Comer,

137 S. Ct. 2012, 2019 (2017) (holding that state could

not declare organization ineligible for grant supporting playground resurfacing on basis that it was a

church). While Trinity Lutheran forbade discrimination based on the claimant’s religious status, it reserved the question whether the state might

discriminate because the claimant would use the benefit for activities involving religious teaching. Id. at

2

The court struck down the entire program, Pet. App. 32-34,

but its decision was clearly based on Mont. Const. Art. X, §6,

which prohibits aid to schools “controlled in whole or part by any

church, sect, or denomination.” The court thus gave effect, unconstitutionally, to a legal provision singling out religious choices for

exclusion from a state benefit.

3

2024 n.3 (“We do not address religious uses of funding.”).

Amici urge first that any asserted distinction between status- and use-based discrimination cannot

serve to eliminate constitutional challenges to state

provisions discriminating against religion. Cf. id. at

2025-26 (Gorsuch, J., concurring in part) (criticizing

the distinction). We present this argument because the

alleged status-use distinction has been claimed in

some lower-court cases allowing bans on religious options in student-aid programs (see Pet. 26-27) and may

appear in this case as well.3

3

The Montana Supreme Court actually approved discrimination based purely on religious status, thus flying in the face of

Trinity Lutheran. Throughout its opinion the court applied the

state constitutional provision to prohibit aid to educational institutions simply because they were religious or “sectarian.” See,

e.g., Pet. App. 19 (concluding that the provision prohibits the

state “from aiding sectarian schools”); id. App. 26 (program violated provision because it allowed state “to indirectly pay tuition

at private, religiously-affiliated schools”); id. App. 23 (provision

was intended “to broadly and strictly prohibit aid to sectarian

schools”).

After reaching these conclusions, the court majority, remarkably, failed even to mention Trinity Lutheran in its single paragraph rejecting plaintiffs’ free exercise challenge. The court

merely stated that “this is not one of those cases” where singling

out an indirect form of aid to religion violates free exercise. Pet.

App. 32.

The court’s disregard of Trinity Lutheran intensifies the

need for this Court to grant review. But this case squarely poses

the question of discrimination against religious uses as well as

religious status, since lower courts that allow bans on religious

options in student-aid programs, especially for tuition aid,

4

A “status-use” distinction cannot be the proper

constitutional line for discrimination against religion

in student-aid programs. The Court should not prohibit discrimination based on a beneficiary’s religious

affiliation and then turn around and immunize discrimination based on the beneficiary’s religious use of

the benefit. A status-use distinction conflicts with the

Free Exercise Clause’s text and this Court’s decisions

under it, both of which protect the right not just to have

a religious identity but to act on it.

Moreover, the status-use distinction is illusory and

unworkable, especially in the context of benefits for education. Schools that do not merely affiliate with a religion but integrate religion into their secular

subjects—and parents who use those schools—do so

because of their belief that religious values permeate

education. That can be called “belief or status” as well

as “use.” “It is free exercise either way” (Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in

part)), and the state presumptively cannot discriminate against it.

II. A. In addition, discrimination against religious uses is frequently offensive to the basic principles underlying the Free Exercise Clause and the First

Amendment’s Religion Clauses as a whole. Those basic

principles are government neutrality toward religion

and respect for the choices that individuals and private

groups make in matters of religion. In the context of

frequently rely on the asserted need to prevent religious uses of

funds.

5

government benefits programs where individuals

choose to use the benefits in religious settings, all the

basic Religion Clause principles point in the same direction: that is, presumptively including religious options on the same terms as nonreligious options.

Neutrality toward religion in the sense of equal treatment of religious persons and organizations also embodies neutrality in the “substantive” sense, that is,

respect for individuals’ religious choices.

If any situation is appropriate for reaffirming the

fundamental principles of religious neutrality and religious choice in government benefits, it is the situation

of tax benefits for contributions to student scholarship

organizations (SSOs). As such, this case is especially

appropriate for this Court’s review. In such programs,

the connection between government policy and the ultimate benefit to religion is highly attenuated. Among

other things, a private SSO must form and must choose

to fund religious schools, a taxpayer taking the credit

must donate to that SSO, and a family must choose to

apply for a scholarship for its child at the religious

school. This attenuated connection to an ultimate religious use cannot justify applying a state provision that

discriminates against religious schools, the families

who choose to use them, and the donors who choose to

support an organization that in turn supports those

families.

------------------------------------------------------------------

6

ARGUMENT

I.

Denial of Benefits May Violate the Free Exercise Clause Not Only When It Singles Out

Individuals and Entities with a Religious

“Status” or Identity, but Also When It Singles Out Religious Uses of the Benefit.

A “status-use” distinction cannot be the proper

constitutional line concerning discrimination against

religion in student-aid programs. That distinction conflicts with the text of the Free Exercise Clause and decisions of this Court, and it is unstable and

unworkable, especially in the context of student-aid

cases.

A. Ignoring Discrimination Against Religious Uses is Inconsistent with the Text

of the Free Exercise Clause.

First, a distinction between a beneficiary’s religious affiliation and its religious use of benefits has no

support in the constitutional text. It is difficult to “see

why the First Amendment’s Free Exercise Clause

should care” about a “status-use” distinction when

“that Clause guarantees the free exercise of religion,

not just the right to inward belief (or status).” Trinity

Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in

part) (emphasis in original). The clause encompasses

“two concepts,—freedom to believe and freedom to act.”

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

“[T]he ‘exercise of religion’ often involves not only

belief and profession but the performance of (or

7

abstention from) physical acts: assembling with others

for a worship service, participating in sacramental use

of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” Employment Division v. Smith, 494 U.S. 872, 877 (1990).

The “exercise of religion” covers not just having a

religious identity, but living out that religious identity

explicitly, including by teaching or learning it in educational institutions. The constitutional text simply

cannot support protecting equality for religious affiliation but ignoring it for religious teachings and activities.

B. Discrimination Against Religious Uses

is Impermissible Under This Court’s

Free Exercise Clause Decisions.

A citizen’s “use” of a government benefit to subsidize his or her child’s education at a religious institution is a religious action. This Court’s decisions under

the Free Exercise Clause clearly forbid discrimination

and non-neutrality not only against religious affiliation, but against those who live out their religious

identity in actions. See, e.g., Sherbert v. Verner, 374 U.S.

398 (1963); Thomas v. Review Board, 450 U.S. 707

(1981); McDaniel v. Paty, 435 U.S. 618 (1978).4

4

This Court in Smith reaffirmed Sherbert and Thomas on

the ground that when a state’s unemployment-benefits law recognizes certain reasons as “good cause” for declining available work,

the state’s refusal to accept a religiously-based reason is nonneutral toward religious exercise. Smith, 494 U.S. at 884.

8

In Sherbert, for example, a South Carolina employer discharged an employee for refusal to work on

Saturday in violation of her religious beliefs as a Seventh-day Adventist, and the state denied her unemployment benefits because she had refused available

work. The state did not penalize Adele Sherbert because she was a Seventh-day Adventist; it penalized

her because she acted based on that identity/status.

Sherbert, 374 U.S. at 404. This Court still found it unconstitutional. Likewise, in Thomas, the state unconstitutionally denied unemployment benefits to a

Jehovah’s Witness man who had resigned his job rather than begin to produce weapons in violation of his

beliefs. The state did not penalize Eddie Thomas for

being a Jehovah’s Witness; it penalized him for acting

on that identity. The government violates free exercise

if, absent a compelling reason, it “conditions receipt of

an important benefit upon conduct proscribed by a religious faith, or . . . denies such a benefit because of

conduct mandated by religious belief, thereby putting

substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas, 450 U.S. at

718 (emphasis added).

Moreover, McDaniel v. Paty, supra, is sometimes

cited as an example of this Court invalidating discrimination based on “status” (see Trinity Lutheran, 137

S. Ct. at 2020)—but McDaniel also reflects a broader

rule. McDaniel struck down a state constitutional provision barring clergy from serving in the state legislature or a state constitutional convention. The Court

held that the state had placed an unconstitutional

9

disability on McDaniel—ineligibility for office—because of his “status as a ‘minister.’ ” 435 U.S. at 627.

But as Justice Brennan noted in his influential concurring opinion, the state had actually asserted a distinction between mere religious affiliation and something

more: the state court had defended the disqualification

because it rested “ ‘not [on] religious belief, but [on] the

career or calling, by which one is identified as dedicated to the full time promotion of the religious

objectives of a particular religious sect.’ ” Id. at 630

(Brennan, J., concurring in the judgment).

Justice Brennan rejected that distinction, for reasons that are highly relevant here as well:

Clearly, freedom of belief protected by the

Free Exercise Clause embraces freedom to

profess or practice that belief, even including

doing so to earn a livelihood. One’s religious

belief surely does not cease to enjoy the protection of the First Amendment when held

with such depth of sincerity as to impel one to

join the ministry.

Id. at 631. In other words, McDaniel illustrates that

discrimination against a person may not be based on

the seriousness or pervasiveness of his practice of religion. Justice Brennan continued (id. at 632):

The provision imposes a unique disability

upon those who exhibit a defined level of intensity of involvement in protected religious

activity. Such a classification as much imposes

a test for office based on religious conviction

10

as one based on denominational preference. A

law which limits political participation to

those who eschew prayer, public worship, or

the ministry as much establishes a religious

test as one which disqualifies Catholics, or

Jews, or Protestants.

McDaniel likewise condemns a “unique disability”

like the one placed upon religious uses of neutral,

choice-based student aid. For a state to bar religious

uses of such aid—and a court to immunize the bar from

free exercise challenge—is to discriminate against

those families, and schools, that practice their religion

with an “intensity” that calls for integrating it into the

educational process, rather than keeping it separate.

Such action by the state imposes a bar as much “based

on religious conviction as one based on denominational

preference” or religious affiliation. Id. The Free Exercise Clause protects against discrimination not only for

attending or operating a religiously affiliated school,

but also for integrating religious principles into education to the degree indicated by personal or organizational choice.

C. A Distinction between Religious Status

and Use is Unstable and Unworkable.

The reasons just given exemplify how, as Justice

Gorsuch predicted, a rule of law distinguishing between status- and use-based discrimination is unstable and unworkable. Trinity Lutheran, 137 S. Ct. at

2025-26 (Gorsuch, J., concurring in part). As he argued,

it makes little sense to prohibit discrimination against

11

religious people but allow it against people who practice their religion. “Often enough the same facts can be

described both ways.” Id. at 2026. Would the Constitution approve a school board’s refusal to fund a charter

school’s provision of kosher foods in its elementary cafeteria but condemn the same board’s refusal to enroll

Jews?

Any distinction between exclusions based on religious status and use is particularly unstable in the

context of teaching in religious schools. As already discussed (p. 10 supra), to exclude religious uses of scholarship funding is to exclude religious schools that

integrate faith in their teaching: those that perceive

most or all aspects of life from a religious lens. Banning

aid when it is used for secular instruction that integrates religious teaching could be characterized as

aiming at a religious “use.” But it can equally be characterized as aiming at certain religious identities. It

imposes a penalty on people of certain religious views:

“those who take their religion seriously, who think that

their religion should affect the whole of their lives.”

Mitchell v. Helms, 530 U.S. 793, 827-28 (2000) (Thomas,

J., for four justices). As Justice Gorsuch predicted, “the

same facts can be described both ways.” Trinity Lutheran, 137 S. Ct. at 2026 (concurring in part).

“[M]any of those who choose religious schools believe that secular knowledge cannot be rigidly separated from the religious without gravely distorting the

child’s education. . . . From this perspective, it is not

sufficient to introduce religious education on the side.”

Michael W. McConnell, The Selective Funding Problem:

12

Abortions and Religious Schools, 104 Harv. L. Rev. 989,

1017-18 (1991).5 Discrimination against religious

“uses” discriminates against that religious perspective

or identity. Moreover, “[r]eligious schools . . . teach the

full secular curriculum and satisfy the compulsory education laws. If we consider that [state aid] is funding

the secular curriculum, then religious schools were excluded because of who and what they are—exactly

what Trinity Lutheran says is unconstitutional.” Douglas Laycock, Comment: Churches, Playgrounds, Government Dollars—And Schools?, 131 Harv. L. Rev. 133,

162 (2017).

Accordingly, a distinction between status and use

cannot serve to define the limits on whatever “play in

the joints” exists between the Religion Clauses (Trinity

Lutheran, 137 S. Ct. at 2019)). Such a distinction

would confine rights under the Free Exercise Clause to

the straightjacket of idle convictions. In the context of

student-aid programs, only the inclusion of both nominal adherents and devoted disciples gives proper application to the Free Exercise Clause.

5

See also Thomas C. Berg, Vouchers and Religious Schools,

72 U. Cin. L. Rev. 151, 177 (2003) (a religious/secular bifurcation

“singles out those religions that cannot accept such ‘bracketing’ of

religious teaching, and penalizes them by denying them the entire

state educational benefit”).

13

D. Locke v. Davey Provides No Basis for

Broad Discrimination Against Religious

Uses of Benefits.

Nor does this Court’s decision in Locke v. Davey,

540 U.S. 712 (2004), provide any basis for giving the

government carte blanche to discriminate against religious uses of a benefit. Locke permitted the state of

Washington to exclude a student from a generally

available scholarship because he was majoring in “devotional theology,” a degree aimed at preparing him for

the ministry. But for several reasons, Locke is a narrow

decision that does not broadly immunize laws that single out religious uses of benefits. See Trinity Lutheran,

137 S. Ct. at 2022-24 (reading Locke narrowly based on

similar factors to those discussed here).

First, the exclusion permitted in Locke aimed to

prevent government support of clergy training—a goal

that the Court said reflects a “historic and substantial

state interest” dating back to “the founding of our country.” 540 U.S. at 725, 722. By contrast, for reasons described infra Part II, government benefits such as the

tax credits here have only a highly attenuated connection to the ultimate religious uses; thus the state’s

anti-establishment interests are neither historic nor

substantial.

Second, and related, a post-secondary theology

degree—“training for a religious profession”—is a

“distinct category of instruction,” not “fungible” with

“training for secular professions.” Id. at 721. By contrast, religious primary and secondary schools and

14

colleges—the entities involved in most student-aid

cases—“pursue not only religious instruction but also

secular education. They train students for the same

secular professions and careers that secular schools

do.” Thomas C. Berg and Douglas Laycock, The Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious Institutions,

40 U. Tulsa L. Rev. 227, 248 (2004). Thus “excluding

them excludes instruction that falls within the same

category as secular schools”—“a pure case of discrimination against an activity solely because of its religious

motivation or viewpoint.” Id.

Third, and importantly, the Court in Locke emphasized that even with the theology-degree exclusion, the

Washington exclusion went “a long way toward including religion in its benefits.” 540 U.S. at 724. Joshua

Davey could attend a pervasively religious college (if it

was accredited) and take courses that integrated religion, including “devotional theology courses”; he suffered only the relatively “minor burden” of not being

able to major in theology and receive a scholarship. Id.

at 724-25. As such, the disqualification arguably did

not significantly affect Davey’s choice to pursue a religious education and calling. As amici discuss in Part II

infra, the degree of burden on religious choice is relevant to determining whether a state disqualification

violates the Free Exercise Clause. Thus, as Judge

Michael McConnell observed, Locke “implies that

major burdens and categorical exclusions from public

benefits might not be permitted in service of lesser or

less long-established governmental ends.” Colorado

15

Christian College v. Weaver, 534 F.3d 1245, 1256 (10th

Cir. 2008). Locke in no way immunizes state provisions

that single out religious uses of funds, rather than religious status, for exclusion.

II.

Discrimination Against Religious Options

in Generally Available Student-Aid Programs Violates the Fundamental Principles of the Religion Clauses: Neutrality

and Choice in Matters of Religion.

For the reasons above, the distinction between

“status” and “use” cannot serve to immunize discrimination against religious activity from invalidation.

Discrimination against religious uses can be equally

offensive to the basic principles underlying the Free

Exercise Clause and the First Amendment’s Religion

Clauses as a whole. Those basic principles are government neutrality toward religion and respect for the

choices that individuals and private groups make in

matters of religion.

As amici now discuss, those principles can guide

the Court in setting forth how far the Free Exercise

Clause prohibits discrimination against religious activity (not just against mere religious status or affiliation). Review in this case is necessary to prevent the

violations of neutrality and religious choice in the

Montana Supreme Court’s decision and other decisions

by lower courts.

16

A. The Free Exercise Clause, and the Religion Clauses in General, Preserve Religious Choice and Government Neutrality

toward Religious Activity.

“The ultimate goal of the Constitution’s provisions

on religion is religious liberty for all—for believer and

nonbeliever, for Christian and Jew, for Protestant and

Catholic, for Western traditions and Eastern, for large

faiths and small, for atheist and agnostic, for secular

humanist and the religiously indifferent, for every individual human being in the vast mosaic that makes

up the American people.” Berg and Laycock, supra, 40

Tulsa L. Rev. at 232. The ultimate goal is that every

American should be free to hold his or her own views

on religious questions, and to live the life that those

views direct, with a minimum of government interference or influence. The fundamental principle to

achieve that goal is for the government to maintain

neutrality toward religion in the “substantive” sense.

[S]ubstantive neutrality [means] this: the

religion clauses require government to minimize the extent to which it either encourages

or discourages religious belief or disbelief,

practice or nonpractice, observance or nonobservance. . . . [R]eligion [should] be left as

wholly to private choice as anything can be. It

should proceed as unaffected by government

as possible. . . .

This elaboration highlights the connections among religious neutrality, religious

autonomy, and religious voluntarism. Government must be neutral so that religious belief

17

and practice can be free. The autonomy of religious belief and disbelief is maximized when

government encouragement and discouragement is minimized.

Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev.

993, 1001-02 (1990).

Put differently, the goal of the Religion Clauses is

that religion in America should flourish or decline, not

according to whether government promotes or hinders

it, but “according to the zeal of its adherents and the

appeal of its dogma.” Zorach v. Clauson, 343 U.S. 306,

313 (1952). This formulation restates the principle of

private choice, as Justice Brennan once summarized:

“Fundamental to the conception of religious liberty

protected by the Religion Clauses is the idea that religious beliefs are a matter of voluntary choice by individuals and their associations, and that each sect is

entitled to ‘flourish according to the zeal of its adherents and the appeal of its dogma.’ ” McDaniel, 435 U.S.

at 640 (Brennan, J., concurring in the judgment) (quoting Zorach; footnote omitted). See also Abington Sch.

Dist. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg,

J., concurring) (“The basic purpose of the religion

clause of the First Amendment is to promote and assure the fullest possible scope of religious liberty and

tolerance for all and to nurture the conditions which

secure the best hope of attainment of that end.”).

18

1. Neutrality, choice, and government

aid benefiting religious education.

The principles of voluntarism and substantive

neutrality are directly reflected in this Court’s approval of private-choice programs of educational aid.

See Mueller v. Allen, 463 U.S. 388 (1983); Witters v.

Dept. of Servs., 474 U.S. 481 (1986); Zelman v. Simmons-Harris, 536 U.S. 639 (2002). In such programs,

“government aid reaches religious schools only as a result of the genuine and independent choices of private

individuals.” Zelman, 536 U.S. at 649; accord Witters,

474 U.S. at 487; Mueller, 463 U.S. at 399-400. Because

such a program’s terms are “neutral with respect to religion,” it creates no “financial incentive for parents to

choose a religious school” over a nonreligious one.

Zelman, 536 U.S. at 652, 655; accord Witters, 474 U.S.

at 487-88. Thus individuals decide to apply their benefits based on whether they have “zeal” for, or find “appeal” in, a particular school’s education or ideology. See

Zorach, 343 U.S. at 313.

Thus, in the context of a government benefits program involving true private choice, the basic Religion

Clause principles point in the same direction: presumptively including religious options on the same

terms as nonreligious options. Neutrality toward religion in the sense of equal treatment of religious persons and organizations also embodies neutrality in the

“substantive” sense, that is, respect for individuals’ religious choices. “Financial aid can be distributed in a

way consistent with individual choice”: “[e]ach family

receiving a government voucher can choose the school

19

that it prefers among all the options available,” and

whatever that range of options may be, “there are more

choices with the voucher than without it.” Douglas

Laycock, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes

But Missing the Liberty, 118 Harv. L. Rev. 155, 157

(2004).

Although the Court’s “true private choice” decisions hold that exclusion of religious choices is not required by the Establishment Clause, the decisions also

show why such exclusion is presumptively forbidden

by the Free Exercise Clause: the exclusion contravenes

fundamental principles of neutrality and religious

choice. Accordingly, most cases where a law singles out

private religious choices for exclusion from a general

program of benefits should not be particularly difficult:

the exclusion should be invalid. See Morris County Bd.

of Chosen Freeholders v. Freedom from Religion Found.,

139 S. Ct. 909, 910-11 (2019) (statement of Kavanaugh,

J., respecting denial of certiorari). “Barring religious

organizations because they are religious from a general . . . program [of state benefits] is pure discrimination against religion” (id. at 911); it also generally

interferes with religious choice.

2. Neutrality and choice in other categories of Religion Clause cases.

The principles of substantive neutrality and respecting religious choice also significantly explain this

Court’s decisions in two other major areas of Religion

20

Clause disputes: (1) protection of religious exercise

against burdens from generally applicable laws and (2)

religious speech by the government itself, such as government-sponsored prayer or religious display. “Under

the Court’s precedents, both of those categories of cases

can pose difficult questions,” Morris County Bd. of

Chosen Freeholders, 139 S. Ct. at 911 (statement of

Kavanaugh, J., respecting denial of certiorari); and

there is uncertainty in both categories. But the principles of neutrality and religious choice explain the

broad outlines of the Court’s decisions.

Religious exercise and generally applicable

laws. Principles of neutrality and religious choice also

explain why government may—and sometimes must—

accommodate religious exercise in the face of generally

applicable laws and regulations. Government may accommodate private, voluntary religious practice by exempting it from burdensome regulation, even if the

exemption does not “come packaged with benefits to

secular entities.” Corporation of Presiding Bishop v.

Amos, 483 U.S. 327, 338 (1987). Such an exemption is

constitutionally legitimate when it “does not have the

effect of ‘inducing’ religious belief, but instead merely

‘accommodates’ or implements an independent religious choice.” Thomas v. Review Bd., 450 U.S. 707,

727 (1981) (Rehnquist, J., dissenting). See also, e.g.,

Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, 565 U.S. 171 (2012) (requiring

21

exemption to protect religious organization’s freedom

to choose leaders).6

Government-sponsored religious speech. Although the Court has forbidden the exclusions of

private religious actors from general government benefits, it has maintained restrictions on government’s

own religious speech—restrictions that do not apply to

government’s nonreligious speech. The Court has repeatedly reaffirmed the ban on government-sponsored

religious exercises in public schools, Lee v. Weisman,

505 U.S. 577 (1992); Santa Fe Ind. Sch. Dist. v. Doe, 530

U.S. 290 (2000), even though the schools promote, or

expose students to, a variety of nonreligious ideas in

classes. Weisman, 505 U.S. at 591 (“Speech is protected

by ensuring its full expression even when the government participates,” but the government “is not a prime

participant” in presenting or debating religious ideas

and activities.).

Government-sponsored religious speech is in some

tension with individual choice, since “[a]ny religious

observance at a public event necessarily requires a collective decision” about what speech to present. Laycock, supra, 118 Harv. L. Rev. at 158. However, there

6

Accommodation of religious choices may often be a matter

of government discretion rather than constitutional mandate. See

Employment Division v. Smith, 494 U.S. 872 (1990). But that constitutional interpretation stems largely from concerns about judicial competence to decide when exemptions are appropriate, not

from a rejection of the importance of religious choice. See id. at

890. The issue in cases like this one—whether religious choices

should receive nondiscriminatory treatment in student-aid programs—raises no such concerns.

22

remain difficult questions about what constitutes permissible acknowledgment of religion’s role in American history and society, as opposed to impermissible

promotion or imposition of one religion or religion in

general. See, e.g., Van Orden v. Perry, 545 U.S. 677

(2005); Maryland-National Capital Park and Planning

Comm’n v. American Humanist Ass’n, Nos. 18-18, 171717 (argued Feb. 27, 2019). But in any event, the principle of respecting religious choice remains bedrock.

Whatever the scope of government’s power to engage

in religious speech, indisputably “the Constitution

guarantees that government may not coerce anyone to

support or participate in religion or its exercise.” Weisman, 505 U.S. at 587.

This case, of course, raises no issues concerning

religious accommodation or government religious

speech. Whatever the proper approach for those categories of cases, the principle in this context is clear. In

most cases, a provision that excludes religious beneficiaries, or religious uses, from a general program of

student aid violates neutrality and distorts religious

choice—thereby violating fundamental Religion

Clause principles.

B. Tax Credits for Contributions Benefiting

Students’ Educational Choices Are a

Particularly Clear Instance of Promoting Religious Neutrality and Choice.

If any situation is appropriate for reaffirming the

fundamental principles of religious neutrality and

23

religious choice in government benefits, it is the situation of tax benefits for contributions to student scholarship organizations (SSOs). For that reason, this case

is especially appropriate for this Court’s review.

In tax-benefit programs for donations to SSOs or

analogous organizations, the connection between government policy and the ultimate benefit to religion is

highly attenuated. It therefore cannot justify application of a state provision that discriminates against religious schools, the families who choose to use them,

and the donors who choose to support an organization

that in turn supports those families.

This Court held that the supposed aid to religion

in SSO-tax-credit programs is so attenuated that taxpayers did not even have standing to challenge such

programs in federal court. Arizona Christian Sch.

Tuition Org. v. Winn, 563 U.S. 125 (2011). For one thing,

the Court said, when the government, by offering a

credit, “declines to impose a tax”—rather than imposing a tax whose proceeds go (even in small part) to religious uses—the dissenting taxpayer “has not been

made to contribute” to the religious uses, and “[a]ny

financial injury [to him, in the form of increased tax

assessments] remains speculative.” Id. at 142. More

broadly, the Court reasoned that under the program,

contributions result from the decisions of private taxpayers regarding their own funds.

Private citizens create private STOs; STOs

choose beneficiary schools; and taxpayers

then contribute to STOs. While the State, at

24

the outset, affords the opportunity to create

and contribute to an STO, the tax credit system is implemented by private action and

with no state intervention.

563 U.S. at 143.7 The dissent in Winn objected that the

differences between tax credits and tax-financed expenditures did not justify denying standing to sue, but

the dissent did not assert that the program should fail

on the merits. Id. at 147-69 (Kagan, J., dissenting).

Lower courts have likewise recognized that in

such programs, the state’s action is separated from

religious schools by “multiple layers of private, individual choice.” Winn v. Arizona Christian Sch. Tuition

Org., 586 F.3d 649, 662 (9th Cir. 2009) (O’Scannlain, J.,

dissenting from denial of rehearing en banc), rev’d, 563

U.S. 125 (2011). A private SSO must form and must

choose to fund religious schools, a taxpayer taking the

credit must donate to that SSO, and a family must

choose to apply for a scholarship for its child at the religious school. At each step, the program’s terms are

religion-neutral, with no evidence that the State has

skewed them toward religious schools: taxpayers can

choose any SSO, the SSOs can support religious or nonreligious schools, and parents can seek scholarships at

either category of school. “Only after passing through

choice piled upon choice do government funds reach

7

The equivalent term in Winn to “SSO” was “STO,” for “student tuition organization.”

25

religious organizations.” Id.8 See also Kotterman v.

Killian, 972 P.2d 606, 620 (Ariz. 1999) (“The way in

which [a scholarship organization] is limited, the

range of choices reserved to taxpayers, parents, and

children, the neutrality built into the system—all lead

us to conclude that benefits to religious schools are sufficiently attenuated [as not to constitute impermissible

aid].”); Griffith v. Bower, 747 N.E.2d 423, 426 (Ill. App.

5th Dist. 2001) (under tax-credit program, “[f ]unds become available to schools only as the result of private

choices made by individual parents”).9

Indeed, to read tax credits as impermissible aid to

religious schools leads to absurd results. If a credit becomes impermissible aid to religion when a scholarship it encourages is used at a religious school, then

8

If a large percentage of private schools are religious, or a

large percentage of SSOs direct donations to religious schools,

that does not undercut choice: it reflects “the zeal of [the] adherents” of those faiths for providing and supporting education

(Zorach, 343 U.S. at 313). Groups that approach education from

secular perspectives (or other religious perspectives) can create

their own schools and SSOs, and a neutral tax-credit program encourages them to do so.

9

Although this case clearly passes benefits through to individuals, amici do not believe that a program must formally do so

in order to be a program of private choice. As four justices recognized in Mitchell v. Helms, 530 U.S. 793 (2000), aid given directly

to religious schools or social services can also follow private choice

when its terms are neutral and the amount is “based on enrollment.” Id. at 830 (opinion of Thomas, J.). The per-capita allocation formula “create[s] no improper incentive” for religious

education and ensures that “[i]t is the students and their parents—not the government—who, through their choice of school,

determine who receives . . . funds.” Id.

26

any tax deduction for such contributions becomes invalid as well. See Winn, 563 U.S. at 144 (rejecting distinction between credits and deductions). Lower courts

have recognized that treating credits as public funding

“directly contradicts the decades-long acceptance of

tax deductions for charitable contributions, including

contributions made directly to churches, religiouslyaffiliated schools and institutions. If credits constitute

public funds, then so must other established tax policy

equivalents like deductions and exemptions.” Kotterman, 972 P.2d at 618; accord Toney v. Bower, 744

N.E.2d 351, 357 (Ill. App. 4th Dist. 2001).

In fact, barring religious organizations from benefiting from SSO tax credits would a fortiori justify excluding them from tax exemptions and from

deductions for charitable contributions, since those exemptions are not separated by the additional steps

present here: donation to an SSO that funds a scholarship that assists a parent who chooses a school that

may or may not be religious.

To apply a “no aid to religion” provision to the

House-that-Jack-built sequence of actions here would

validate discrimination against religion in multiple

contexts. To ensure that the principles of neutrality

and religious choice retain significant meaning for government-benefits programs, this Court should grant

review in this case.

------------------------------------------------------------------

27

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

THOMAS C. BERG

RELIGIOUS LIBERTY

APPELLATE CLINIC

UNIV. OF ST. THOMAS

SCHOOL OF LAW (MINNESOTA)

MSL 400

1000 LaSalle Avenue

Minneapolis, MN 55403

(651) 962-4918

tcberg@stthomas.edu

KIMBERLEE WOOD COLBY

Counsel of Record

CENTER FOR LAW AND

RELIGIOUS FREEDOM

CHRISTIAN LEGAL SOCIETY

8001 Braddock Road

Suite 302

Springfield, VA 22151

(703) 894-1087

kcolby@clsnet.org

Counsel for Amici Curiae

April 12, 2019