Under the First Amendment, “[t]he method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse” of that used to protect general freedom of speech. Unlike with speech, the government generally does not participate in religious dialogue or debate, as “the Framers deemed religious establishment antithetical to the freedom of all.” Where the Free Exercise Clause embraces freedom of conscience and worship parallel to the speech provisions of the First Amendment, the Establishment Clause specifically prohibits “state intervention in religious affairs.” Yet courts have long recognized that “there is room for play in the joints” between the Establishment Clause and the Free Exercise Clause.
While the Supreme Court does not recognize the right to public education as a fundamental right, the plaintiffs in Espinoza v. Montana Department of Revenue asked the Court to recognize an analogous right: a fundamental right to funding private religious education. Framed as a violation of the petitioners’ free exercise rights, the petitioners in Espinoza alleged that the Montana Department of Revenue infringed their right by excluding private religious schools from a tax credit program, and the Supreme Court agreed.
This paper proposes that while Montana’s scholarship tuition tax credit program advances religion and would lead to excessive government entanglement with religion in violation of the Establishment Clause, the Court erred in its reasoning. The Religion Clauses of the First Amendment are not the proper precedential pathway. The Court’s past decisions regarding the Free Exercise and Establishment Clause are so narrow and limited in scope that Espinoza was best decided elsewhere. Montana’s scholarship program should be subject to rational basis review because there was no infringement of a fundamental right. Funds are not fundamental.
This paper begins by discussing the history of the freedom of religion, specifically the free exercise rights and anti-establishment provision of the First Amendment. Next, this paper will discuss Espinoza v. Montana Department of Revenue. Finally, this paper will argue that Espinoza should have been decided in favor of the Montana Department of Revenue because the fundamental right to free exercise of religion does not include a right to funding.