The Supreme Court’s Religious School Decisions Aren’t Inconsistent

The Supreme Court’s decisions in Espinoza v. Montana Dept. of Revenue and Our Lady of Guadalupe School v. Morrissey-Berru offered a one-two punch of victories for religious schools under the religion clauses of the First Amendment. Espinoza, a 5–4 decision written by Chief Justice John Roberts, protected the right of parents to use taxpayer-funded school choice for religious schools on the same basis as non-religious schools. Guadalupe, a 7–2 decision written by Justice Samuel Alito, protected the right of religious schools to control the hiring and firing of their religious teachers without interference from laws that govern teachers at non-religious schools.

Some critics see a contradiction. As one Above the Law columnist argued, “no sane reading of our religious liberty clauses supports the notion that government is both commanded to stay out of the affairs of religious schools while at the same time existing under the obligation to fund them.” In fact, what the two cases do is preserve a space for the free exercise of religion that actually takes religion seriously. There will always be tensions inherent in both the structure of the First Amendment and a society that extends religious pluralism to the religious and the non-religious alike. But the Court’s view is both philosophically consistent and firmly grounded in the history of the First Amendment.

The liberal-progressive view sounds, at first glance, sensible enough: In the public, government-funded sector, everything religious must be subordinated to avoid an establishment of religion or the large-scale obstruction of civil law; on your own time and your own dime, you can practice your faith. But there are three problems with this framework.

The first problem is religious: It is not enough simply to tell religious believers that they can participate in the government-funded sector in a non-religious way, and then just practice their faith on their own time. That’s just not how faith works. To the believer, the free exercise of religion is a pervasive thing — an identity, not just an idea. Being a follower of Christ, or a Muslim, is not something you can take on and off like a hat. Being put to the choice will frequently compel believers to turn down benefits available to everyone else. It is no answer to tell religious schools that they can be religious, but not too religious.