Moving the bar down: A look into the increasing power of the Free Exercise clause.

By: David Katz
​
David Katz is a freshman in the College of Arts and Sciences with an undeclared major

If asked what rights come with being an American, what would you say?

I think a lot of us would talk about the 1st amendment to the Constitution. It reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [1] In the American public conscious, the First Amendment is representative of a core American value: that we have the right to be an individual. 
Focusing on the first part, we see that the right to freely practice religion is divided into two clauses: the establishment clause, which prevents the government from officially establishing a religion, and the free exercise clause, which prevents the government from restricting religious practice. The provisions act as an upper and lower bound for what the government can do in relation to religion. The government cannot go as far as to hinder somebody’s ability to practice religion, but they are also not allowed to endorse a religion to the point where it seems state sponsored. 

To illustrate how these two clauses interact, one can look towards Locke v. Davey (2003). In Locke v. Davey, Washington State had a program called the “Promise Scholarship Program” which provided money for gifted students to attend college [2]. However, the Washington State Constitution had what is known as a Blaine Amendment, which prevents government funding from going towards sectarian institutions [3]. Therefore, when Locke attempted to use a promise scholarship to obtain a degree in devotional theology, the state shut him down [3]. The state was attempting to circumvent establishing a religion. In the process, Locke argued, the state was hindering his ability to practice religion, as they were not providing him the money simply because it was a religious endeavor [4]. The court ruled in the state’s favor. The court stated that, if the state wanted to, they could have allowed Davey to get a degree in devotional theology while remaining above the establishment clause [5]. However, the state preventing him from obtaining a degree in devotional theology does not violate the free exercise clause [6]. Indeed, as Justice Rehnquist summarized in his opinion in Locke, “these two clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. Yet we have long said that ‘there is room for play in the joints’ between them” [7]. 

However, in recent years, it seems as if the upper bound restriction of the free exercise clause has been moving down. Over the past four years alone, there have been two rulings that lower the bar for what qualifies as a government action preventing the practice of religion. In 2017, the Supreme Court heard a case entitled Trinity Lutheran v. Comer (2017). Trinity Lutheran, a church of the same name in Missouri operated a learning center that, while admitting students of any religion, incorporated religious instruction into its curriculum and was operated on the property of the church [8]. The Trinity Lutheran church had a playground on its premises, and the playground was open for community use. The church sought to replace the gravel floor of the playground with a rubber floor, by getting funding from a state-wide initiative [7]. However, much like Washington, Missouri has a Blaine Amendment, preventing it from funding sectarian institutions. When the state did not allow Trinity Lutheran to participate in the program because of their religious affiliation, the church sued, claiming that it was a violation of the free exercise clause. It was a very similar argument to the one made by Locke. However, in this case, the court ruled in favor of the religious party. In the decision, the court argues that repairing playgrounds is a non-sectarian action. Therefore, since the only way the church could get the grant is if they renounced their religious affiliation, there is a violation of the free exercise clause at play [8]. The bar of what a state can do without violating the free exercise clause has moved down.

In 2021, the bar would move down again. In Espinoza v. Montana Department of Revenue, Montana established a program that gives a tax credit to a citizen that donates towards organizations that award scholarships to private schools [9]. Once again, Montana had a Blaine Amendment, meaning that the program had a rule: if one donated to a scholarship organization that gave scholarships to sectarian schools, one could not get a tax break [10]. The state was sued by Espinoza, the mother of a child who was supposed to be sent to a sectarian school via one of the scholarship programs [11] She argued that the state’s rule violated the free exercise clause, and the Supreme Court agreed [12]. The court argued, once again, that because the only way a school could be eligible would be if they renounced their religious character, that it was a violation of the free exercise clause of the first amendment [13]. This time, the school could very well use the government funding for sectarian purposes, as once a school receives tuition money, neither the donor nor the government has any control regarding what it funds. The bar moves even lower.
​
In 2021, the Supreme Court will hear the case Carson v. Makin. In Carson, there are families living in districts in Maine without a public high school [13]. In those districts, families are allowed to use state funding to go to an “approved” private school [14]. Those private schools must be nonsectarian. [15] Once again, Carson attempted to send his child to a religious private school on state funds. The state denied this request and Carson is now suing [16]. If the court rules in favor of Carson, saying that the state cannot restrict their assistance to non-sectarian schools, it would make the restrictions on the state imposed by the free exercise clause even greater. Indeed, it would take things a step further than Espinoza. In Espinoza, the state was still not directly funding a sectarian education. They were simply giving a tax break to those who did. Although that results in a loss for the state and a gain for the sectarian schools, it was not money coming from the state’s treasury to the school. However, if the court rules in favor of Carson, there would be direct payment involved. The Supreme Court would, essentially be saying, that if a state is giving money to private schools, it cannot choose not to give money to religious ones. The bar would move even lower.

[1] U. S. Const. amend. I. Accessed October 28, 2021. 
[2] Locke, Governor of Washington v. Davey, No. 02-1315., slip op. at (Feb. 25, 2004). Accessed October 28, 2021.
3] Ibid. 2
[4] Ibid. 2
[5] Ibid. 2
[6] Ibid. 2
[7] Ibid. 2
[8] Locke, Governor of Washington v. Davey, No. 02-1315., slip op. at (Feb. 25, 2004). Accessed October 28, 2021. 
[9] Ibid. 8
[10] Ibid. 8
[11] Kendra Espinoza v. Montana Department of Revenue, No. 18-1195, slip op. at (June 30, 2020). 
[12] Ibid. 11
[13] Ibid. 11
[14] Ibid. 11
[15] "Carson v. Makin," Oyez, accessed October 28, 202
[16] Ibid. 15
[17] Ibid. 15
[18] Ibid. 15


The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

​