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On Espinoza, Schools, and the Religion Clauses


The United States Supreme Court has long had difficulty explicating what the Religion Clauses require, permit, and prohibit. While members of the Court appreciate that the Clauses cannot be interpreted in such a way that one clause requires something that the other clause prohibits, the Justices have offered very different accounts of how to avoid that conflict. The difficulties in reconciling the clauses have been especially evident in the Court’s attempts to determine the kind of state aid that may be offered to parochial schools without violating constitutional guarantees.

Establishment jurisprudence and Free Exercise jurisprudence are both evolving. The Court is now willing to uphold practices under the Establishment Clause that would previously have been found to violate those guarantees and the Court is now finding that practices violate Free Exercise guarantees that previously would have been found permissible or might even have been found not to have implicated those guarantees. One of the Court’s recent forays into these areas—Espinoza v. Montana Department of Revenue—indicates just how wrongheaded the Court’s Religion Clauses jurisprudence has become.