LGBT legal activists have some concerns about a pro-religion ruling by the U.S. Supreme Court Tuesday (June 30). Although the case is not LGBT specific, the ruling could have implications for future LGBT cases, including one pending for the next session.

In Espinoza v. Montana, a 5 to 4 majority of the U.S. Supreme Court ruled that it is a violation of the First Amendment’s free exercise clause for a state to exclude religious schools from receiving state tuition assistance for needy students.

“Today’s decision says nothing specifically about the intersection of civil rights protections and religious freedom,” said Daniel Mach, director of the ACLU’s Program on Freedom of Religion and Belief. “But it is yet another unsettling example of the Supreme Court favoring claims by some religious adherents at the expense of other important constitutional principles – in this case, the separation of church and state.”

“There are ways to square this decision with nondiscrimination principles, given how the Supreme Court has characterized the facts of the dispute,” said Jenny Pizer, senior attorney for Lambda Legal. “What’s worrisome is that the [Supreme] Court now has a track record of sleight-of-hand with the facts in these religious rights cases.

The dispute in Espinoza arose over a program created by the Montana legislature in 2015 that provided $3 million annually for a program that gave a $150 per year tax credits to citizens who contributed to a “student scholarship organization.” That student scholarship organization could then provide tuition assistance to needy students.

In promulgating rules for implementation of the program, the state Department of Revenue, citing the state constitution, added a stipulation that the tuition assistance could not be used to attend a sectarian school. The Montana Constitution prohibits “appropriation or payment from any public fund or monies” to any school controlled “in whole or in part by any church, sect, or denomination.”

Three parents who wanted tuition assistance to send their children to a private Christian school sued. They argued that the prohibition on using tuition assistance for a religious school violated their First Amendment right to free exercise of religion.

A state district court ruled in favor of the parents, but the Montana Supreme Court reversed and invalidated the entire tax credit-tuition assistance program.

The U.S. Supreme Court majority, led by Chief Justice John Roberts who wrote the opinion, said the stipulation that no program money can go to religious schools violates the U.S. Constitution’s free exercise clause.

Citing several previous rulings that involved religious versus LGBT disputes, Roberts wrote, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.

And the “Free Exercise Clause, which applies to the States under the Fourteenth Amendment,” said Roberts, “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status’.”

Joining Roberts in the decision were all of his fellow Republican appointees: Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

In the majority opinion, Roberts referred frequently to a 2017 decision in Trinity Lutheran v. Comer, where the majority ruled that a state violated the free exercise clause when it denied a grant to a school that “would have received [a grant] but for the fact that” the school is church-run.

In Trinity, Lambda Legal had submitted a brief noting that the church-run school had discriminated against LGBT students and parents. It argued that, “When government provides aid to religious schools and other entities, it must do so with safeguards ensuring that these institutions neither discriminate based on religion nor use the funds to inculcate religion.”

Lambda did not submit a brief in the Espinoza case, but the Stillwater Christian School’s website advises that it’s values include the belief that God created marriage to be “exclusively the union of one man and one woman, and that intimate sexual activity is to occur exclusively within that union.” The school also states, “students and campus visitors must use restrooms, locker rooms, and changing facilities conforming with their biological sex.”

The dissent pushes back

Justice Ruth Bader Ginsburg and the court’s three other Democratic appointed justices dissented. Ginsburg said the Montana Supreme Court’s decision did not disfavor religious schools, it simply ended the tuition assistance program for students of all schools.

“Petitioners [the Montana parents] may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise,” wrote Ginsburg, joined by Justice Elena Kagan.

In a separate dissent, Sotomayor made essentially the same point: “To be sure, [the parents in this case] may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise.”

Justice Stephen Breyer, joined by Kagan, wrote a separate dissent, saying, “We all recognize that the First Amendment prohibits dis- crimination against religion. At the same time, our history and federal constitutional precedent reflect a deep concern that state funding for religious teaching, by stirring fears of preference or in other ways, might fuel religious discord and division and thereby threaten religious freedom itself….

“It may be that, under our precedents, the Establishment Clause does not forbid Montana to subsidize the education of petitioners’ children,” wrote Breyer. “But, the question here is whether the Free Exercise Clause requires it to do so….

“If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” said Breyer.

Future battlegrounds considered

The Espinoza decision is of interest to LGBT legal activists who have been embroiled in a long line of long line of conflicts over First Amendment religious freedom claims. And those conflicts continue to heat up. In February, the high court announced it will review a lower court decision that held a Catholic foster care agency could not discriminate against same-sex couples. That case, which will likely be argued in October, is Fulton v. Pennsylvania.

“Espinoza does not tell us much about how the Court may rule in Fulton or other potential future cases pitting religious freedom against LGBT anti-discrimination laws,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “The issue in Espinoza–whether states can exclude religious entities from public benefits programs solely because they are religious–is very different than the issue in Fulton, which is whether a religious entity can violate rules that apply to everyone else.”

“While I am disappointed in the decision,” said Minter, “Chief Justice Robert’s opinion is extremely narrow and avoided establishing any sweeping new protections for religious liberty.  For that reason, there is still plenty of room for cautious optimism that the Court will not upend decades of settled law to recognize sweeping new religious exemptions to anti-discrimination protections in Fulton or other cases.”

But Lambda’s Pizer said the Espinoza decision “does not bode well” for future cases. Pizer said she is concerned with how the majority “embraced the religious organizations’ victim narrative that separation of church from state (or, separation of religious institutions from public tax dollars) is unjust discrimination.”

“It’s a dangerous path for our country to be on, especially as this administration has been changing administrative rules across the federal government to facilitate lots more federal funding of religious organizations to do work for the public on behalf of government,” said Pizer. “

She noted the Supreme Court is expected to issue another related ruling this week, in Our Lady of Guadalupe School v. Morrissey-Berru, from California. That case, argued in May, involves a conflict over a Catholic school’s right to fire an employee for any reason by claiming it needed to do so for religiously based reasons. In this case, a teacher was fired and has alleged age discrimination. The school argued that the courts could not try the case because the school fired an employee it considers “ministerial.”