The Murky Waters of Religious Law

Introduction

The First Amendment has safeguards against any connection between government and religion; however, this does not stop legislatures from toeing the line between constitutional and unconstitutional legislation regarding religion. The Supreme Court has always shied away from giving a clear cut ruling on religious influences within the government but has decided several landmark cases that help legislatures navigate the murky waters of religious law. The most notable among these cases is Lemon v. Kurtzman (1971), Engel v. Vitale (1961), Wisconsin v. Yoder (1972), and Mueller v. Allen (1982). All of these cases provide clarity to the cloudy laws regarding religion and have helped both legislatures and other Supreme Court decisions maneuver around the issues in this topic. In the 2019-2020 Supreme Court term, we have seen two major cases regarding religion in the government on the docket, both of which have strayed from the precedents set in prior landmark cases. These two cases, Espinoza v. Montana Department of Revenue and Our Lady of Guadalupe School v. Morrissey-Berru, have been crucial in determining the influence that religion may play in government laws regarding private religious schools or institutions, and have been decided according to ideological splits of the Justices. The Court’s adherence to party lines has limited the majority opinion’s use of the precedents set in prior landmark rulings and has caused the Court to deviate from precedents that are closely related to the questions brought before the Court.

Case I

Kendra Espinoza, a low-income mother who applied for scholarships to keep her children enrolled in Stillwater Christian School, in Kalispell, Montana, sued the Montana Department of Revenue over the tax-credit scholarship program that provided a modest tax credit to individuals and businesses who donate to private, nonprofit scholarship organizations. This program included an administrative rule prohibiting scholarship recipients from using these scholarships at religious schools, citing a provision of the state constitution that prohibits “direct or indirect” public funding of religiously affiliated educational programs. In Espinoza v. Montana Department of Revenue, Espinoza and other mothers filed a lawsuit challenging the established rule. They argued that even without the rule the program would be constitutional and therefore allow the mothers to use the scholarships to fund their children attending Stillwater Christian School. Montana argued that without the rule in place, the scholarship program would be violating parts of Montana’s state constitution, as well as the Establishment Clause of the Federal Constitution.

In a 5-4 decision authored by Chief Justice John Roberts, the Court held that “the application of the Montana Constitution’s ‘no-aid’ provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause.” The Court found that Montana’s no-aid provision excluded religious schools from public benefits solely because of religious status, which in turn violated the Free Exercise Clause that protects religious observers against unequal treatment. They found that Montana was creating a greater separation of church and state than the federal Constitution requires, and due to the Free Exercise Clause, Montana’s no-aid rule was not valid. Due to the split among the Court, there were three dissenting opinions filed, of which Justice Ginsburg best stated, “the Court’s precedents established that neutral government action is not unconstitutional solely because it fails to benefit religious exercise.” Two of the three dissenting opinions filed pay tribute to past precedents established, one citing Locke v. Davey (2004), which upheld the “application of a no-aid provision in Washington State based on the conclusion that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees.” These dissenting opinions adhere more to the precedents of former cases brought before the Court, while the majority did not follow precedent as often.

Case II

Agnes Morrissey-Berru, a teacher at Our Lady of Guadalupe School, brought a lawsuit against the school under the Age Discrimination in Employment Act (ADEA). The District Court first ruled in favor of the school on the basis that Morrissey-Berru was a “minister;” however, the U.S. Court of Appeals for the Ninth Circuit reversed the lower Court’s decision, finding that Morrissey-Berru was not a “minister.” She had taken one course on the history of the Catholic Church but did not have any other religious credentials, training, or ministerial background. The question brought forth to the Supreme Court centered around whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer when the employee was not defined as a “minister.”

In a 7-2 decision authored by Justice Alito, the Court held that the “‘ministerial exception,’ which derives from the religion clauses of the First Amendment, prevents civil courts from adjudicating the former employee’s discrimination claims in this case against the religious schools that employed them.” Justice Thomas authored a concurring opinion, in which Justice Gorsuch joined, stating that the courts should “defer to religious organizations’ good-faith claims that a certain employees position is ‘ministerial.’” The issue surrounding this decision is how the majority of the Court classified teachers as “ministers” when the teachers taught primarily secular subjects, lacked real religious titles or training, and were not required to be Catholic by the schools. In a dissenting opinion, authored by Justice Sotomayor and joined by Justice Ginsburg, Justice Sotomayor argued that the majority’s approach “has no basis in law and strips thousands of school teachers of their legal protections.” Justice Sotomayor highlights the issues surrounding the majority’s opinion and argues that the majority’s opinion strays from the Constitution and precedents made by the Court.

Conclusion

Espinoza v. Montana Department of Revenue and Our Lady of Guadalupe School v. Morrissey-Berru have both played a large role in determining the relationship between the government and private religious schools. Both cases have changed the way that the Federal and State governments are allowed to govern or place rules on religious schools, and have created precedents for this matter going forward. With the majority of the Court now leaning conservative, 5-4 decisions are all too common and lead to some vastly different opinions among the Justices. Political leaning, has and still now, plays a major role in the decisions of our Supreme Court cases, which has led to the disregard for some of the precedents already set in the role that the government can play in religious schools. With the majority of Justices having stronger conservative ideologies, it is not surprising that some precedents will be disregarded when they go against the majority’s opinion, the same way it would be if there was a liberal majority. The Supreme Court, while supposed to be based in law and facts, has become flooded with the ideological tension, and this tension has caused some of the Justices to stray from their interpretation of the Constitution and lean more heavily into their own beliefs.