case_law | United States Federal
Espinoza v. Montana Dept. of Revenue
Summary
The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Federal Constitution’s Free Exercise Clause.
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PRELIMINARY PRINT Volume 591 U. S. Part 2 Pages 464–548 OFFICIAL REPORTS OF THE SUPREME COURT June 30, 2020 Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. Page Proof Pending Publication 464 OCTOBER TERM, 2019 Syllabus ESPINOZA et al. v. MONTANA DEPARTMENT OF REVENUE et al. certiorari to the supreme court of montana No. 18–1195. Argued January 22, 2020—Decided June 30, 2020 The Montana Legislature established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition. To reconcile the program with a provision of the Mon- tana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, § 6(1), the Montana Department of Revenue promulgated “Rule 1,” which pro- hibited families from using the scholarships at religious schools. Three mothers who were blocked by Rule 1 from using scholarship funds for their children's tuition at Stillwater Christian School sued the Depart- ment in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen. The trial court enjoined Rule 1. Reversing, the Montana Su- preme Court held that the program, unmodifed by Rule 1, aided reli- gious schools in violation of the Montana Constitution's no-aid provision. The Court further held that the violation required invalidating the en- tire program. Held: The application of the no-aid provision discriminated against reli- gious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitu- tion. Pp. 473–489. (a) The Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 458, 461. In Trinity Lutheran, this Court held that disqualifying otherwise eligible recipients from a public beneft “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Id., at 462. Here, the application of Montana's no-aid provision excludes religious schools from public benefts solely because of religious status. As a result, strict scrutiny applies. Pp. 473–479. (b) Contrary to the Department's contention, this case is not gov- erned by Locke v. Davey, 540 U. S. 712. The plaintiff in Locke was denied a scholarship “because of what he proposed to do—use the funds to prepare for the ministry,” an essentially religious endeavor. Trinity Lutheran, 582 U. S., at 464. By contrast, Montana's no-aid provision Cite as: 591 U. S. 464 (2020) 465 Syllabus does not zero in on any essentially religious course of instruction but rather bars aid to a religious school “simply because of what it is”—a religious school. Ibid. Locke also invoked a “historic and substantial” state interest in not funding the training of clergy, 540 U. S., at 725, but no comparable tradition supports Montana's decision to disqualify religious schools from government aid. Pp. 479–483. (c) The proposed alternative approach involving a fexible case-by- case analysis is inconsistent with Trinity Lutheran. The protections of the Free Exercise Clause do not depend on a varying case-by-case analysis regarding whether discrimination against religious adherents would serve ill-defned interests. Pp. 483–484. (d) To satisfy strict scrutiny, government action “must advance `inter- ests of the highest order' and must be narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546. Montana's interest in creating greater separation of church and state than the Federal Constitution requires “cannot qualify as compelling” in the face of the infringement of free exercise here. Trinity Lutheran, 582 U. S., at 466. The Department's argument that the no-aid provision actually promotes religious freedom is unavailing because an infringement of First Amendment rights cannot be justifed by a State's alternative view that the infringement advances religious liberty. The Department's argument is especially unconvincing because the infringement here broadly burdens not only religious schools but also the families whose children attend them. The Department sug- gests that the no-aid provision safeguards public education by ensuring that government support is not diverted to private schools, but that interest does not justify a no-aid provision that requires only religious private schools to bear its weight. Pp. 484–487. (e) Because the Free Exercise Clause barred the application of the no-aid provision here, the Montana Supreme Court had no authority to invalidate the program on the basis of that provision. The Department argues that the invalidation of the entire program prevented a free exer- cise violation, but the Department overlooks the Montana Supreme Court's threshold error of federal law. Had the Montana Supreme Court recognized that the application of the no-aid provision was barred by the Free Exercise Clause, the Court would have had no basis for invalidating the program. The Court was obligated to disregard the no-aid provision and decide this case consistent with the Federal Consti- tution. Pp. 487–489. 393 Mont. 446, 435 P. 3d 603, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., fled a concur- Page Proof Pending Publication Page Proof Pending Publication 466 ESPINOZA v. MONTANA DEPT. OF REVENUE Syllabus ring opinion, in which Gorsuch, J., joined, post, p. 489. Alito, J., post, p. 497, and Gorsuch, J., post, p. 508, fled concurring opinions. Gins- burg, J., fled a dissenting opinion, in which Kagan, J., joined, post, p. 515. Breyer, J., fled a dissenting opinion, in which Kagan, J., joined as to Part I, post, p. 520. Sotomayor, J., fled a dissenting opinion, post, p. 538. Richard D. Komer argued the cause for petitioners. With him on the briefs were Erica J. Smith, William W. Mercer, Michael Bindas, and Timothy D. Keller. Deputy Solicitor General Wall argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Francisco , Assistant At- torney General Dreiband, Vivek Suri, Thomas E. Chandler, and Eric W. Treene. Adam G . Unikowsky argued the cause for respondents. With him on the brief were James Dawson, Daniel J. Whyte, and Anthony Johnstone .* *Briefs of amici curiae urging reversal were fled for the State of Okla- homa et al. by Mike Hunter, Attorney General of Oklahoma, Mithun Man- singhani, Solicitor General, and Zach West and Bryan Cleveland, Assist- ant Solicitors General, by Christopher M. Carr, Attorney General of Georgia, Andrew A. Pinson, Solicitor General, and Kurtis G. Anderson, Assistant Attorney General, by Mark Brnovich, Attorney General of Ari- zona, O. H. Skinner, Solicitor General, and Andrew G. Pappas, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Les- lie Rutledge of Arkansas, Derek Schmidt of Kansas, Jeff Landry of Louisi- ana, Eric Schmitt of Missouri, Doug Peterson of Nebraska, Dave Yost of Ohio, Jason R. Ravnsborg of South Dakota, Herbert H. Slatery III of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; for the Alliance for Choice in Education by Ian Speir and L. Martin Nussbaum; for the American Center for Law and Justice by Jay Alan Sekulow , Stuart J . Roth, Colby M. May, and Walter M. Weber; for Americans for Prosperity et al. by Cynthia F. Craw- ford; for the Arizona Christian School Tuition Organization et al. by Ally- son N. Ho, Bradley G. Hubbard, Kristen K. Waggoner, David A. Cortman, John J. Bursch, Brett B. Harvey, Rory T. Gray, and Christopher P . Schan- devel; for the Becket Fund for Religious Liberty by Diana M. Verm, Eric S. Baxter, and Eric S. Rassbach; for the Billy Graham Evangelistic Associ- ation et al. by Frederick W. Claybrook, Jr., James A. Davids, and David Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 467 Opinion of the Court Chief Justice Roberts delivered the opinion of the Court. The Montana Legislature established a program to pro- vide tuition assistance to parents who send their children to A. Bruce; for the Cato Institute by Ilya Shapiro; for the Center for Consti- tutional Jurisprudence by John C. Eastman and Anthony T. Caso; for the Center for Education Reform et al. by Paul D. Clement, George W. Hicks, Jr., and Erin M. Hawley; for the Christian Legal Society et al. by Kimber- lee Wood Colby , Reed N. Smith, Douglas Laycock, and Thomas C . Berg; for EdChoice et al. by Leslie Davis Hiner , Russell Menyhart, and Manuel S. Klausner; for Forge Youth Mentoring by Joshua D. Davey and Kelly J. Shackelford; for the Foundation for Moral Law by John A. Eidsmoe; for the Georgia Goal Scholarship Program, Inc., by James P. Kelly III and Harry W. MacDougald; for the Independence Institute by David B. Kopel; for the Jewish Coalition for Religious Liberty by Parker Douglas and Howard Slugh; for the Justice and Freedom Fund et al. by James L . Hirsen, Deborah J. Dewart, and B. Tyler Brooks; for the Liberty Justice Center et al. by Brian K. Kelsey, Jeffrey M. Schwab, and Daniel R. Suhr; for the Mackinac Center for Public Policy by Patrick J. Wright; for Mon- tana Catholic School Parents et al. by Andrea Picciotti-Bayer; for the Montana Family Foundation by Anita Y. Milanovich; for the Opportunity Scholarship Fund by Fred A. Leibrock; for the Pioneer Institute, Inc., by Dwight G . Duncan and Michael C. Gilleran; for The Rutherford Institute by Jason P. Gosselin and John W. Whitehead; for Jerry Armstrong et al. by Ethan W. Blevins, Wencong Fa, and Joshua P. Thompson; for Rusty Bowers et al. by John J. Park, Jr.; for Sen. Steve Daines et al. by Sarah M. Harris; for the Hon. Scott Walker by Richard M. Esenberg; and for 131 Current and Former State Legislators by Steven W. Fitschen. Briefs of amici curiae urging affrmance were fled for the State of Colorado et al. by Philip J. Weiser, Attorney General of Colorado, Eric R. Olson, Solicitor General, Christopher Johnson, Assistant Attorney Gen- eral, and Grant T. Sullivan, Assistant Solicitor General, and by the Attor- neys General for their respective jurisdictions as follows: Xavier Becerra of California, Clare E . Connors of Hawaii, Maura Healey of Massachu- setts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Letitia James of New York, Ellen F. Rosenblum of Oregon, and Robert F. Ferguson of Washington; for the State of Maine by Aaron M. Frey, Attorney General of Maine, Susan P. Herman, Deputy Attorney General, and Sarah A. For- ster and Christopher C. Taub, Assistant Attorneys General; for the Ameri- can Federation of Teachers et al. by Kevin K. Russell, Erica Oleszczuk Evans, John M. West, Ramya Ravindran, Alice O'Brien, Kristen Hollar, 468 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a reli- gious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school con- trolled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision. I A In 2015, the Montana Legislature sought “to provide pa- rental and student choice in education” by enacting a scholar- ship program for students attending private schools. 2015 Mont. Laws p. 2168, § 7. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating “student scholarship organization.” Mont. Code Ann. §§ 15– Rhonda Weingarten, and David J. Strom; for the Baptist Joint Committee for Religious Liberty et al. by Steven K. Green, K. Hollyn Hollman, and Jennifer L . Hawks; for the Freedom From Religion Foundation et al. by Andrew Seidel and Patrick Elliott; for the Montana Association of Rabbis by Charles A. Rothfeld, Andrew J. Pincus, Michael B . Kimberly, Paul W. Hughes, and Eugene R. Fidell; for Montana Constitutional Convention Delegates by Hyland Hunt and Ruthanne M. Deutsch; for the Montana- Northern Wyoming Conference, United Church of Christ, by Tillman J . Breckenridge and Patricia E . Roberts; for the National Disability Rights Network et al. by Gregory M. Lipper, Ronald M. Hager, Shira Wakschlag, and Selene Almazan-Altobelli; for the National School Boards Association et al. by Francisco M. Negrón, Jr., and Sonja H. Trainor; for Public Funds Public Schools by Tamerlin J. Godley and Jessica Reich Baril; for Reli- gion Law Scholars by Kirti Datla; for Religious and Civil-Rights Organi- zations by Richard B. Katskee , Alex J . Luchenitser, Daniel Mach, Heather L . Weaver, David D . Cole, Steven M. Freeman, and Elliot M. Mincberg; and for the Tennessee Education Association by Richard L . Colbert. Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 469 Opinion of the Court 30–3103(1), –3111(1) (2019). The scholarship organizations then use the donations to award scholarships to children for tuition at a private school. §§ 15–30–3102(7)(a), –3103(1)(c). 1 So far only one scholarship organization, Big Sky Scholar- ships, has participated in the program. Big Sky focuses on providing scholarships to families who face fnancial hardship or have children with disabilities. Scholarship organizations like Big Sky must, among other requirements, maintain an application process for awarding the scholarships; use at least 90% of all donations on scholarship awards; and comply with state reporting and monitoring requirements. §§ 15– 30–3103(1), –3105(1), –3113(1). A family whose child is awarded a scholarship under the program may use it at any “qualifed education provider”— that is, any private school that meets certain accreditation, testing, and safety requirements. See § 15–30–3102(7). Virtually every private school in Montana qualifes. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholar- ship funds directly to the school. § 15–30–3104(1). Neither the scholarship organization nor its donors can restrict awards to particular types of schools. See §§ 15–30– 3103(1)(b), –3111(1). The Montana Legislature allotted $3 million annually to fund the tax credits, beginning in 2016. § 15–30–3111(5)(a). If the annual allotment is exhausted, it increases by 10% the following year. Ibid. The program is slated to expire in 2023. 2015 Mont. Laws p. 2186, § 33. The Montana Legislature also directed that the program be administered in accordance with Article X, section 6, of the Montana Constitution, which contains a “no-aid” pro- vision barring government aid to sectarian schools. See 1 The Legislature provided the same tax credit to taxpayers who donate to public schools for the purpose of supporting innovative educational pro- grams or curing technology defciencies at such schools. See Mont. Code Ann. § 15–30–3110 (2019). Page Proof Pending Publication 470 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court Mont. Code Ann. § 15–30–3101. In full, that provision states: “Aid prohibited to sectarian schools . . . . The legis- lature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appro- priation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientifc institu- tion, controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, § 6(1). Shortly after the scholarship program was created, the Montana Department of Revenue promulgated “Rule 1,” over the objection of the Montana Attorney General. That administrative rule prohibited families from using scholar- ships at religious schools. Mont. Admin. Rule § 42.4.802(1)(a) (2015). It did so by changing the defnition of “qualifed edu- cation provider” to exclude any school “owned or controlled in whole or in part by any church, religious sect, or denomi- nation.” Ibid. The Department explained that the Rule was needed to reconcile the scholarship program with the no-aid provision of the Montana Constitution. The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the program, and if it did, it would “very likely” violate the United States Constitution by discriminating against the schools and their students. See Complaint in No. DV–15–1152A (Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5–6. The Attorney General is not representing the Department in this case. B This suit was brought by three mothers whose children attend Stillwater Christian School in northwestern Montana. Stillwater is a private Christian school that meets the statu- Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 471 Opinion of the Court tory criteria for “qualifed education providers.” It serves students in prekindergarten through 12th grade, and peti- tioners chose the school in large part because it “teaches the same Christian values that [they] teach at home.” App. to Pet. for Cert. 152; see id., at 138, 167. The child of one peti- tioner has already received scholarships from Big Sky, and the other petitioners' children are eligible for scholarships and planned to apply. While in effect, however, Rule 1 blocked petitioners from using scholarship funds for tuition at Stillwater. To overcome that obstacle, petitioners sued the Department of Revenue in Montana state court. Peti- tioners claimed that Rule 1 conficted with the statute that created the scholarship program and could not be justifed on the ground that it was compelled by the Montana Consti- tution's no-aid provision. Petitioners further alleged that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen for their children. The trial court enjoined Rule 1, holding that it was based on a mistake of law. The court explained that the Rule was not required by the no-aid provision, because that provision prohibits only “appropriations” that aid religious schools, “not tax credits.” Id., at 94. The injunctive relief freed Big Sky to award scholarships to students regardless of whether they attended a religious or secular school. For the school year beginning in fall 2017, Big Sky received 59 applications and ultimately awarded 44 scholarships of $500 each. The next year, Big Sky received 90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to Stillwater Christian. In December 2018, the Montana Supreme Court reversed the trial court. 393 Mont. 446, 435 P. 3d 603. The Court frst addressed the scholarship program unmodifed by Rule 1, holding that the program aided religious schools in Page Proof Pending Publication 472 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court violation of the no-aid provision of the Montana Constitution. In the Court's view, the no-aid provision “broadly and strictly prohibits aid to sectarian schools.” Id., at 459, 435 P. 3d, at 609. The scholarship program provided such aid by using tax credits to “subsidize tuition payments” at private schools that are “religiously affliated” or “controlled in whole or in part by churches.” Id., at 464–467, 435 P. 3d, at 612–613. In that way, the scholarship program fouted the State Constitution's “guarantee to all Montanans that their government will not use state funds to aid religious schools.” Id., at 467, 435 P. 3d, at 614. The Montana Supreme Court went on to hold that the vio- lation of the no-aid provision required invalidating the entire scholarship program. The Court explained that the pro- gram provided “no mechanism” for preventing aid from fowing to religious schools, and therefore the scholarship program could not “under any circumstance” be construed as consistent with the no-aid provision. Id., at 466–468, 435 P. 3d, at 613–614. As a result, the tax credit is no longer available to support scholarships at either religious or secu- lar private schools. The Montana Supreme Court acknowledged that “an overly-broad” application of the no-aid provision “could im- plicate free exercise concerns” and that “there may be a case” where “prohibiting the aid would violate the Free Ex- ercise Clause.” Id., at 468, 435 P. 3d, at 614. But, the Court concluded, “this is not one of those cases.” Ibid. Finally, the Court agreed with petitioners that the Depart- ment had exceeded its authority in promulgating Rule 1. The Court explained that the statute creating the scholar- ship program had broadly defned qualifying schools to in- clude all private schools, including religious ones, and the Department lacked authority to “transform” that defnition with an administrative rule. Id., at 468–469, 435 P. 3d, at 614–615. Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 473 Opinion of the Court Several Justices wrote separately. All agreed that Rule 1 was invalid, but they expressed differing views on whether the scholarship program was consistent with the Montana and United States Constitutions. Justice Gustafson's con- currence argued that the program violated not only Mon- tana's no-aid provision but also the Federal Establishment and Free Exercise Clauses. Id., at 475–479, 435 P. 3d, at 619–621. Justice Sandefur echoed the majority's conclusion that applying the no-aid provision was consistent with the Free Exercise Clause, and he dismissed the “modern juris- prudence” of that Clause as “unnecessarily complicate[d]” due to “increasingly value-driven hairsplitting and over- stretching.” Id., at 482–484, 435 P. 3d, at 623–624. Two Justices dissented. Justice Rice would have held that the scholarship program was permissible under the no- aid provision. He criticized the majority for invalidating the program “sua sponte ,” contending that no party had chal- lenged it under the State Constitution. Id., at 495, 435 P. 3d, at 631. Justice Baker also would have upheld the program. In her view, the no-aid provision did not bar the use of schol- arships at religious schools, and free exercise concerns could arise under the Federal Constitution if it did. Id., at 493– 494, 435 P. 3d, at 630. We granted certiorari. 588 U. S. ––– (2019). II A The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establish- ment of religion, or prohibiting the free exercise thereof.” We have recognized a “ `play in the joints' between what the Establishment Clause permits and the Free Exercise Clause compels.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 458 (2017) (quoting Locke v. Davey, 540 U. S. 712, 718 (2004)). Here, the parties do not dispute that 474 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court the scholarship program is permissible under the Establish- ment Clause. Nor could they. We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations beneft from neutral govern- ment programs. See, e. g., Locke, 540 U. S., at 719; Rosen- berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 839 (1995). See also Trinity Lutheran, 582 U. S., at 458 (noting the parties' agreement that the Establishment Clause was not violated by including churches in a play- ground resurfacing program). Any Establishment Clause objection to the scholarship program here is particularly un- availing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools. See Locke, 540 U. S., at 719; Zelman v. Simmons-Harris, 536 U. S. 639, 649–653 (2002). The Montana Supreme Court, however, held as a matter of state law that even such indirect government support qualifed as “aid” prohibited under the Montana Constitution. The question for this Court is whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana's no-aid provision to bar religious schools from the scholarship program. For purposes of answering that ques- tion, we accept the Montana Supreme Court's interpretation of state law—including its determination that the scholarship program provided impermissible “aid” within the meaning of the Montana Constitution—and we assess whether excluding religious schools and affected families from that program was consistent with the Federal Constitution. 2 2 Justice Sotomayor argues that the Montana Supreme Court “ex- pressly declined to reach any federal issue.” Post, at 543 (dissenting opin- ion). Not so. As noted, supra, at 472, the Montana Supreme Court rec- ognized that certain applications of the no-aid provision could “violate the Free Exercise Clause.” 393 Mont. 446, 468, 435 P. 3d 603, 614 (2018). But the Court expressly concluded that “this is not one of those cases.” Ibid. Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 475 Opinion of the Court The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, “protects religious ob- servers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran, 582 U. S., at 458, 461 (internal quotation marks and alterations omitted); see Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). Those “basic principle[s]” have long guided this Court. Trinity Lutheran, 582 U. S., at 458–462. See, e. g., Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947) (a State “cannot exclude individual Catho- lics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefts of public welfare legislation”); Lyng v. Northwest In- dian Cemetery Protective Assn., 485 U. S. 439, 449 (1988) (the Free Exercise Clause protects against laws that “penal- ize religious activity by denying any person an equal share of the rights, benefts, and privileges enjoyed by other citizens”). Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclu- sion that disqualifying otherwise eligible recipients from a public beneft “solely because of their religious character” imposes “a penalty on the free exercise of religion that trig- gers the most exacting scrutiny.” 582 U. S., at 462. In Trinity Lutheran, Missouri provided grants to help non- proft organizations pay for playground resurfacing, but a state policy disqualifed any organization “owned or con- trolled by a church, sect, or other religious entity.” Id., at 455. Because of that policy, an otherwise eligible church- owned preschool was denied a grant to resurface its play- ground. Missouri's policy discriminated against the Church “simply because of what it is—a church,” and so the policy was subject to the “strictest scrutiny,” which it failed. Id., at 464–466. We acknowledged that the State had not “criminalized” the way in which the Church worshipped or Page Proof Pending Publication 476 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court “told the Church that it cannot subscribe to a certain view of the Gospel.” Id., at 463. But the State's discriminatory policy was “odious to our Constitution all the same.” Id., at 467. Here too Montana's no-aid provision bars religious schools from public benefts solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefts, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school “controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, § 6(1). The provision's title—“Aid prohibited to sectarian schools”— confrms that the provision singles out schools based on their religious character. Ibid. And the Montana Supreme Court explained that the provision forbids aid to any school that is “sectarian,” “religiously affliated,” or “controlled in whole or in part by churches.” 393 Mont., at 464–467, 435 P. 3d, at 612–613. The provision plainly excludes schools from government aid solely because of religious status. See Trinity Lutheran, 582 U. S., at 462. The Department counters that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used—for “religious education.” Brief for Respondents 38. In Trinity Lutheran, a majority of the Court concluded that the Missouri policy violated the Free Exercise Clause because it discriminated on the basis of religious status. A plurality declined to address discrimi- nation with respect to “religious uses of funding or other forms of discrimination.” 582 U. S., at 465, n. 3. The plu- rality saw no need to consider such concerns because Mis- souri had expressly discriminated “based on religious iden- tity,” ibid., which was enough to invalidate the state policy without addressing how government funds were used. Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 477 Opinion of the Court This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no- aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affliated schools.” 393 Mont., at 463–467, 435 P. 3d, at 611–613. Applying this pro- vision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would ben- eft from the program were “religiously affliated” and “con- trolled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Con- stitution by aiding “schools controlled by churches.” Id., at 466–467, 435 P. 3d, at 613–614. The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.” 582 U. S., at 455. The Department points to some language in the decision below indicating that the no-aid provision has the goal or effect of ensuring that government aid does not end up being used for “sectarian education” or “religious education.” 393 Mont., at 460, 466–467, 435 P. 3d, at 609, 613–614. The De- partment also contrasts what it characterizes as the “com- pletely non-religious” beneft of playground resurfacing in Trinity Lutheran with the unrestricted tuition aid at issue here. Tr. of Oral Arg. 31. General school aid, the Depart- ment stresses, could be used for religious ends by some re- cipients, particularly schools that believe faith should “per- meate[ ]” everything they do. Brief for Respondents 39 (quoting State ex rel. Chambers v. School Dist. No. 10, 155 Mont. 422, 438, 472 P. 2d 1013, 1021 (1970)). See also post, at 526–527, 531–532 (Breyer , J., dissenting). Regardless, those considerations were not the Montana Supreme Court's basis for applying the no-aid provision to Page Proof Pending Publication 478 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court exclude religious schools; that hinged solely on religious sta- tus. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organiza- tions from putting aid to religious uses. Undeterred by Trinity Lutheran, the Montana Supreme Court applied the no-aid provision to hold that religious schools could not beneft from the scholarship program. 393 Mont., at 464–468, 435 P. 3d, at 612–614. So applied, the provision “impose[s] special disabilities on the basis of reli- gious status” and “condition[s] the availability of benefts upon a recipient's willingness to surrender [its] religiously impelled status.” Trinity Lutheran, 582 U. S., at 461–462 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993), and McDaniel v. Paty, 435 U. S. 618, 626 (1978) (plurality opinion); alterations omitted). To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or af- fliation. Placing such a condition on benefts or privileges “inevitably deters or discourages the exercise of First Amendment rights.” Trinity Lutheran, 582 U. S., at 463 (quoting Sherbert v. Verner, 374 U. S. 398, 405 (1963); al- terations omitted). The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here. Trinity Lutheran , 582 U. S., at 462–463 (internal quotation marks omitted). Such status-based discrimination is subject to “the strictest scrutiny.” Id., at 463. None of this is meant to suggest that we agree with the Department, Brief for Respondents 36–40, that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See Lukumi, 508 U. S., at 546 (striking down law designed to ban religious practice involv- ing alleged animal cruelty, explaining that a law “target[ing] religious conduct for distinctive treatment or advanc[ing] le- gitimate governmental interests only against conduct with a Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 479 Opinion of the Court religious motivation will survive strict scrutiny only in rare cases”). Some Members of the Court, moreover, have ques- tioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. See Trinity Lutheran, 582 U. S., at 468–470 (Gor- such, J., joined by Thomas, J., concurring in part) (citing, e. g., Lukumi, 508 U. S. 520, and Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707 (1981)). We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana's no-aid provision discriminates based on religious status. B Seeking to avoid Trinity Lutheran, the Department con- tends that this case is instead governed by Locke v. Davey, 540 U. S. 712. See also post, at 524 (Breyer, J., dissenting); post, at 546–547 (Sotomayor , J., dissenting). Locke also in- volved a scholarship program. The State of Washington provided scholarships paid out of the State's general fund to help students pursuing postsecondary education. The schol- arships could be used at accredited religious and nonreli- gious schools alike, but Washington prohibited students from using the scholarships to pursue devotional theology de- grees, which prepared students for a calling as clergy. This prohibition prevented Davey from using his scholarship to obtain a degree that would have enabled him to become a pastor. We held that Washington had not violated the Free Exercise Clause. Locke differs from this case in two critical ways. First, Locke explained that Washington had “merely chosen not to fund a distinct category of instruction”: the “essentially reli- gious endeavor” of training a minister “to lead a congregation.” 540 U. S., at 721. Thus, Davey “was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.” Trinity Lutheran, 582 U. S., at 464. Page Proof Pending Publication 480 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court Apart from that narrow restriction, Washington's program allowed scholarships to be used at “pervasively religious schools” that incorporated religious instruction throughout their classes. Locke, 540 U. S., at 724–725. By contrast, Montana's Constitution does not zero in on any particular “essentially religious” course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefts. Trinity Lutheran, 582 U. S., at 464. At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefts. Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy, 540 U. S., at 725, explaining that “opposition to . . . funding `to support church leaders' lay at the historic core of the Religion Clauses,” Trinity Lutheran, 582 U. S., at 465 (quoting Locke, 540 U. S., at 722). As evidence of that tradition, the Court in Locke emphasized that the propriety of state-supported clergy was a central subject of founding-era debates, and that most state constitutions from that era prohibited the expenditure of tax dollars to support the clergy. See id., at 722–723. But no comparable “historic and substantial” tradition supports Montana's decision to disqualify religious schools from government aid. In the founding era and the early 19th century, governments provided fnancial support to pri- vate schools, including denominational ones. “Far from pro- hibiting such support, the early state constitutions and stat- utes actively encouraged this policy.” L. Jorgenson, The State and the Non-Public School, 1825–1925, p. 4 (1987); e. g., R. Gabel, Public Funds for Church and Private Schools 210, 217–218, 221, 241–243 (1937); C. Kaestle, Pillars of the Re- public: Common Schools and American Society, 1760–1860, pp. 166–167 (1983). Local governments provided grants to private schools, including religious ones, for the education Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 481 Opinion of the Court of the poor. M. McConnell et al., Religion and the Consti- tution 318–319 (4th ed. 2016). Even States with bans on government-supported clergy, such as New Jersey, Pennsyl- vania, and Georgia, provided various forms of aid to religious schools. See Kaestle, supra, at 166–167; Gabel, supra, at 215–218, 241–245, 372–374; cf. Locke, 540 U. S., at 723. Early federal aid (often land grants) went to religious schools. McConnell, supra, at 319. Congress provided sup- port to denominational schools in the District of Columbia until 1848, ibid., and Congress paid churches to run schools for American Indians through the end of the 19th century, see Quick Bear v. Leupp, 210 U. S. 50, 78 (1908); Gabel, supra, at 521–523. After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen's Bureau. McConnell, supra, at 323. 3 3 Justice Breyer sees “no meaningful difference” between concerns animating bans on support for clergy and bans on support for religious schools. Post, at 526–528. But evidently early American governments did. See supra, at 480 and this page. Justice Breyer contests particu- lar examples but acknowledges that some bans on clergy support did not bar certain “sponsorship” of religious schools. Post, at 528. And, central to the issue here, he certainly does not identify a consistent early tradition, of the sort invoked in Locke, against support for religious schools. Virgin- ia's opposition to establishing university theology professorships and char- tering theological seminaries, see post, at 529, do not ft the bill. Buckley, After Disestablishment: Thomas Jefferson's Wall of Separation in Antebel- lum Virginia, 61 J. So. Hist. 445, 452–453 (1995). Justice Breyer also invokes Madison's objections to the Virginia Assessment Bill, post, at 527, but Madison objected in part because the Bill provided special support to certain churches and clergy, thereby “violat[ing] equality by subjecting some to peculiar burdens.” Memorial and Remonstrance Against Reli- gious Assessments, Art. 4, reprinted in Everson v. Board of Ed. of Ewing , 330 U. S. 1, 66 (1947) (appendix to dissenting opinion of Rutledge, J.); see V . Muñoz, God and the Founders: Madison, Washington, and Jefferson 21– 22, 27 (2009). It is far from clear that the same objections extend to pro- grams that provide equal support to all private primary and secondary schools. If anything, excluding religious schools from such programs would appear to impose the “peculiar burdens” feared by Madison. Page Proof Pending Publication 482 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court The Department argues that a tradition against state sup- port for religious schools arose in the second half of the 19th century, as more than 30 States—including Montana— adopted no-aid provisions. See Brief for Respondents 40– 42 and App. D. Such a development, of course, cannot by itself establish an early American tradition. Justice Soto- mayor questions our reliance on aid provided during the same era by the Freedmen's Bureau, post, at 547 (dissenting opinion), but we see no inconsistency in recognizing that such evidence may reinforce an early practice but cannot create one. In addition, many of the no-aid provisions belong to a more checkered tradition shared with the Blaine Amend- ment of the 1870s. That proposal—which Congress nearly passed—would have added to the Federal Constitution a pro- vision similar to the state no-aid provisions, prohibiting States from aiding “sectarian” schools. See Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). “[I]t was an open secret that `sectarian' was code for `Catholic.' ” Ibid.; see Jorgenson, supra, at 70. The Blaine Amendment was “born of bigotry” and “arose at a time of pervasive hos- tility to the Catholic Church and to Catholics in general”; many of its state counterparts have a similarly “shameful pedigree.” Mitchell, 530 U. S., at 828–829 (plurality opin- ion); see Jorgenson, supra, at 69–70, 216; Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 301–305 (2001). The no-aid provisions of the 19th century hardly evince a tradition that should inform our un- derstanding of the Free Exercise Clause. The Department argues that several States have rejected referendums to overturn or limit their no-aid provisions, and that Montana even re-adopted its own in the 1970s, for rea- sons unrelated to anti-Catholic bigotry. See Brief for Re- spondents 20, 42. But, on the other side of the ledger, many States today—including those with no-aid provisions—pro- vide support to religious schools through vouchers, scholar- ships, tax credits, and other measures. See Brief for Okla- Cite as: 591 U. S. 464 (2020) 483 Opinion of the Court homa et al. as Amici Curiae 29–31, 33–35; Brief for Peti- tioners 5. According to petitioners, 20 of 37 States with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs. Reply Brief 22, n. 9. All to say, we agree with the Department that the histori- cal record is “complex.” Brief for Respondents 41. And it is true that governments over time have taken a variety of approaches to religious schools. But it is clear that there is no “historic and substantial” tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke. C Two dissenters would chart new courses. Justice Soto- mayor would grant the government “some room” to “single . . . out” religious entities “for exclusion,” based on what she views as “the interests embodied in the Religion Clauses.” Post, at 545, 546 (quoting Trinity Lutheran, 582 U. S., at 478, 479 (So- tomayor, J., dissenting)). Justice Breyer, building on his solo opinion in Trinity Lutheran, would adopt a “fexible, con- text-specifc approach” that “may well vary” from case to case. Post, at 533, 534–535; see Trinity Lutheran, 582 U. S., at 470– 471 (Breyer, J., concurring in judgment). As best we can tell, courts applying this approach would contemplate the par- ticular beneft and restriction at issue and discern their rela- tionship to religion and society, taking into account “context and consequences measured in light of [the] purposes” of the Religion Clauses. Post, at 534–536, 538 (opinion of Breyer, J.) (quoting Van Orden v. Perry, 545 U. S. 677, 700 (2005) (Breyer, J., concurring in judgment)). What is clear is that Justice Breyer would afford much freer rein to judges than our current regime, arguing that “there is `no test-related sub- stitute for the exercise of legal judgment.' ” Post, at 538 (quoting Van Orden, 545 U. S., at 700 (opinion of Breyer, J.)). The simplest response is that these dissents follow from prior separate writings, not from the Court's decision in Page Proof Pending Publication 484 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court Trinity Lutheran or the decades of precedent on which it relied. These precedents have “repeatedly confrmed” the straightforward rule that we apply today: When otherwise eligible recipients are disqualifed from a public beneft “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran, 582 U. S., at 458–462. This rule against express religious discrimination is no “doc- trinal innovation.” Post, at 532 (opinion of Breyer, J.). Far from it. As Trinity Lutheran explained, the rule is “unre- markable in light of our prior decisions.” 582 U. S., at 462. For innovation, one must look to the dissents. Their “room[y]” or “fexible” approaches to discrimination against religious organizations and observers would mark a signif- cant departure from our free exercise precedents. The pro- tections of the Free Exercise Clause do not depend on a “judgment-by-judgment analysis” regarding whether dis- crimination against religious adherents would somehow serve ill-defned interests. Cf. Medellín v. Texas, 552 U. S. 491, 514 (2008). D Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scru- tiny” is required. Supra, at 475, 478 (quoting Trinity Lu- theran, 582 U. S., at 463). That “stringent standard,” id., at 466, is not “watered down but really means what it says,” Lukumi, 508 U. S., at 546 (internal quotation marks and al- terations omitted). To satisfy it, government action “must advance `interests of the highest order' and must be nar- rowly tailored in pursuit of those interests.” Ibid. (quoting McDaniel, 435 U. S., at 628). The Montana Supreme Court asserted that the no-aid pro- vision serves Montana's interest in separating church and state “more fercely” than the Federal Constitution. 393 Mont., at 467, 435 P. 3d, at 614. But “that interest cannot qualify as compelling” in the face of the infringement of free Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 485 Opinion of the Court exercise here. Trinity Lutheran, 582 U. S., at 466. A State's interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause . . . is limited by the Free Exercise Clause.” Ibid. (quoting Widmar v. Vincent, 454 U. S. 263, 276 (1981)). The Department, for its part, asserts that the no-aid provi- sion actually promotes religious freedom. In the Depart- ment's view, the no-aid provision protects the religious lib- erty of taxpayers by ensuring that their taxes are not directed to religious organizations, and it safeguards the freedom of religious organizations by keeping the govern- ment out of their operations. See Brief for Respondents 17– 23. An infringement of First Amendment rights, however, cannot be justifed by a State's alternative view that the in- fringement advances religious liberty. Our federal system prizes state experimentation, but not “state experimentation in the suppression of free speech,” and the same goes for the free exercise of religion. Boy Scouts of America v. Dale, 530 U. S. 640, 660 (2000). Furthermore, we do not see how the no-aid provision pro- motes religious freedom. As noted, this Court has repeat- edly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a govern- ment program. But we doubt that the school's liberty is en- hanced by eliminating any option to participate in the frst place. The Department's argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. Montana's no-aid provision imposes a categorical ban—“broadly and strictly” prohibiting “ any type of aid” to religious schools. 393 Mont., at 462–463, 435 P. 3d, at 611. This prohibition is Page Proof Pending Publication 486 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court far more sweeping than the policy in Trinity Lutheran, which barred churches from one narrow program for play- ground resurfacing—causing “in all likelihood” only “a few extra scraped knees.” 582 U. S., at 467. And the prohibition before us today burdens not only reli- gious schools but also the families whose children attend or hope to attend them. Drawing on “enduring American tra- dition,” we have long recognized the rights of parents to di- rect “the religious upbringing” of their children. Wiscon- sin v. Yoder, 406 U. S. 205, 213–214, 232 (1972). Many parents exercise that right by sending their children to reli- gious schools, a choice protected by the Constitution. See Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925). But the no-aid provision penalizes that decision by cutting families off from otherwise available benefts if they choose a religious private school rather than a secular one, and for no other reason. The Department also suggests that the no-aid provision advances Montana's interests in public education. Accord- ing to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools. See Brief for Respond- ents 19, 25. But, under that framing, the no-aid provision is fatally underinclusive because its “proffered objectives are not pursued with respect to analogous nonreligious conduct.” Lukumi, 508 U. S., at 546. On the Department's view, an interest in public education is undermined by diverting gov- ernment support to any private school, yet the no-aid provi- sion bars aid only to religious ones. A law does not advance “an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id., at 547 (internal quotation marks and alterations omitted). Montana's interest in public education cannot justify a no-aid provision that requires only religious private schools to “bear [its] weight.” Ibid. Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 487 Opinion of the Court A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious. III The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Su- preme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available beneft. Two dissenters agree. Justice Ginsburg reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, post, at 519, and Justice Sotomayor describes the decision below as resting on state law grounds having noth- ing to do with the federal Free Exercise Clause, see post, at 538, 543. The descriptions are not accurate. The Montana Legisla- ture created the scholarship program; the legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to in- validate the entire program. 393 Mont., at 466–468, 435 P. 3d, at 613–614. The fnal step in this line of reasoning eliminated the pro- gram, to the detriment of religious and non-religious schools alike. But the Court's error of federal law occurred at the beginning. When the Court was called upon to apply a state Page Proof Pending Publication Page Proof Pending Publication 488 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to re- ject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no- aid provision “would violate the Free Exercise Clause,” id., at 468, 435 P. 3d, at 614, the Court would not have proceeded to fnd a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program fowed directly from the Montana Supreme Court's failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds. 4 The Supremacy Clause provides that “the Judges in every State shall be bound” by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Con- trary notwithstanding.” Art. VI, cl. 2. “[T]his Clause cre- ates a rule of decision” directing state courts that they “must not give effect to state laws that confict with federal law[ ].” Armstrong v. Exceptional Child Center, Inc., 575 U. S. 320, 324 (2015). Given the confict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have “disregard[ed]” the no- aid provision and decided this case “conformably to the [C]onstitution” of the United States. Marbury v. Madison, 1 Cranch 137, 178 (1803). That “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. Id., at 180. They are 4 Justice Sotomayor worries that, in light of our decision, the Montana Supreme Court must “order the State to recreate” a scholarship program that “no longer exists.” Post, at 544 (dissenting opinion). But it was the Montana Supreme Court that eliminated the program, in the decision below, which remains under review. Our reversal of that decision simply restores the status quo established by the Montana Legislature before the Court's error of federal law. We do not consider any alterations the Legislature may choose to make in the future. Cite as: 591 U. S. 464 (2020) 489 Thomas, J., concurring “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitu- tion” and “cannot stand.” Trinity Lutheran, 582 U. S., at 463, 467.5 * * * The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not incon- sistent with this opinion. It is so ordered. Justice Thomas, with whom Justice Gorsuch joins, concurring. The Court correctly concludes that Montana's no-aid provi- sion expressly discriminates against religion in violation of the Free Exercise Clause. And it properly provides relief to Montana religious schools and the petitioners who wish to use Montana's scholarship program to send their children to such schools. I write separately to explain how this Court's interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom. I A This case involves the Free Exercise Clause, not the Es- tablishment Clause. But as in all cases involving a state actor, the modern understanding of the Establishment Clause is a “brooding omnipresence,” Southern Pacifc Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting), ever ready to be used to justify the government's infringement on religious freedom. Under the modern, but erroneous, view 5 In light of this holding, we do not address petitioners' claims that the no-aid provision, as applied, violates the Equal Protection Clause or the Establishment Clause. Page Proof Pending Publication 490 ESPINOZA v. MONTANA DEPT. OF REVENUE Thomas, J., concurring of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion. As this Court stated in its frst case applying the Establish- ment Clause to the States, the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing , 330 U. S. 1, 15 (1947); see also post, at 521–522 (Breyer , J., dis- senting). This “equality principle,” the theory goes, prohib- its the government from expressing any preference for reli- gion—or even permitting any signs of religion in the governmental realm. Thus, when a plaintiff brings a free exercise claim, the government may defend its law, as Mon- tana did here, on the ground that the law's restrictions are required to prevent it from “establishing” religion. This understanding of the Establishment Clause is un- moored from the original meaning of the First Amendment. As I have explained in previous cases, at the founding, the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.” Zelman v. Simmons-Harris, 536 U. S. 639, 678 (2002) (concurring opinion) (emphasis added); see also, e. g., Town of Greece v. Galloway, 572 U. S. 565, 604–607 (2014) (opinion concurring in part and concur- ring in judgment); Elk Grove Unifed School Dist. v. New- dow, 542 U. S. 1, 49–50 (2004) (opinion concurring in judg- ment). Under this view, the Clause resists incorporation against the States. See Town of Greece , 572 U. S., at 604 (opinion of Thomas, J.). There is mixed historical evidence concerning whether the Establishment Clause was understood as an individual right at the time of the Fourteenth Amendment's ratifcation. Id., at 607–608. Even assuming that the Clause creates a right and that such a right could be incorporated, however, it would only protect against an “establishment” of religion as understood at the founding, i. e., “ `coercion of religious or- thodoxy and of fnancial support by force of law and threat Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 491 Thomas, J., concurring of penalty.' ” Id., at 608 (quoting Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissenting); emphasis deleted); American Legion v. American Humanist Assn., 588 U. S. 29, 75–76 (2019) (Thomas, J., concurring in judgment); see also McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131–2181 (2003); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933, 936–939 (1986). 1 Thus, the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Es- tablishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585, 632 (2006). B I have previously made these points in Establishment Clause cases to show that the Clause likely has no application to the States or, if it is capable of incorporation, that the Court employs a far broader test than the Clause's original meaning. See, e. g., American Legion, 588 U. S., at 73–74 (opinion concurring in judgment); Town of Greece , 572 U. S., at 604 (opinion concurring in part and concurring in judg- ment). But the Court's wayward approach to the Establish- ment Clause also impacts its free exercise jurisprudence. Specifcally, its overly expansive understanding of the former 1 A party wishing to expand the scope of the Establishment Clause be- yond its meaning at the founding carries the burden of demonstrating that this broader reading is historically sound. Town of Greece v. Galloway, 572 U. S. 565, 607–608 (2014) (Thomas, J., concurring in part and concur- ring in judgment). Page Proof Pending Publication 492 ESPINOZA v. MONTANA DEPT. OF REVENUE Thomas, J., concurring Clause has led to a correspondingly cramped interpretation of the latter. Under this Court's current approach, state and local gov- ernments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause. Once the government demonstrates that its policy is required for compliance with the Constitu- tion, any claim that the policy infringes on free exercise can- not survive. A few examples suffce to illustrate this practice. Of most relevance to this case is Locke v. Davey, 540 U. S. 712 (2004), which Montana principally relies on to justify its discriminatory law. In Locke, the Court held that prohibit- ing a student from using a generally available state scholar- ship to pursue a degree in devotional theology did not violate the student's free exercise rights. This was so, the Court said, in part because it furthered the State's “antiestablish- ment interests” in avoiding the education of religious minis- ters. Id., at 722. But no antiestablishment interests, prop- erly understood, were at issue in Locke. The State neither coerced students to study devotional theology nor con- scripted taxpayers into supporting any form of orthodoxy. Thus, as I have explained, Locke incorrectly interpreted the Establishment Clause and should not impact free exercise challenges. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 468 (2017) (opinion concurring in part). Yet, as Montana's proffered justifcation for its law shows, governments continue to rely on Locke's improper under- standing of “antiestablishment interests” to defend against free exercise challenges. See Brief for State of Colorado et al. as Amici Curiae 3, 10–12 (arguing that Locke justifes the 38 state constitutional provisions that are similar to Mon- tana's); see also Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F. 3d 779, 785 (CA8 2015), rev'd and remanded, 582 U. S. 449; Eulitt v. Maine, 386 F. 3d 344, 354 (CA1 2004); post, at 524–527 (Breyer , J., dissenting); post, at 546–548 (Sotomayor, J., dissenting). Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 493 Thomas, J., concurring The Court has also repeatedly stated that a government has a compelling interest in avoiding an Establishment Clause violation altogether, which “may justify” abridging other First Amendment freedoms. See Good News Club v. Milford Central School, 533 U. S. 98, 112 (2001); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993); Widmar v. Vincent, 454 U. S. 263, 271 (1981). Unsurprisingly, governmental employers have re- lied on these pronouncements to defeat challenges from em- ployees who alleged violations of their First Amendment rights. See, e. g., Berry v. Department of Social Servs., 447 F. 3d 642, 650–651 (CA9 2006); Knight v. Connecticut Dept. of Public Health, 275 F. 3d 156, 166 (CA2 2001); Marchi v. Board of Cooperative Ed. Servs. of Albany , 173 F. 3d 469, 475 (CA2 1999). Finally, this Court's infamous test in Lemon v. Kurtzman, 403 U. S. 602 (1971), has sometimes been understood to pro- hibit governmental practices that have the effect of endors- ing religion. See Lynch v. Donnelly, 465 U. S. 668, 692 (1984) (O'Connor, J., concurring). This, too, presupposes that the Establishment Clause prohibits the government from favoring religion or taking steps to promote it. But as described supra, at 490–491, the Establishment Clause does nothing of the sort. The concern with avoiding endorse- ment has nevertheless been used to prohibit voluntary prac- tices that potentially implicate free exercise rights, with courts and governments going so far as to make the “remark- able” suggestion “that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith.” Kennedy v. Bremerton School Dist., 586 U. S. –––, ––– (2019) (Alito, J., statement respecting denial of certiorari); see Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308 (2000) (voluntary decision to begin football games with a prayer violated the Establishment Clause); see also Kennedy v. Bremerton School Dist., 869 F. 3d 813, 831 (CA9 2017) (M. Smith, J., concurring) (coach's decision to lead voluntary Page Proof Pending Publication 494 ESPINOZA v. MONTANA DEPT. OF REVENUE Thomas, J., concurring prayer after football games); Walz v. Egg Harbor Twp. Bd. of Ed., 342 F. 3d 271, 280 (CA3 2003) (student's decision to distribute small gifts with religious messages to classmates). II The Court's current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treat- ment of religion. Under a proper understanding of the Es- tablishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level. The Court's distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activ- ity, instead mandating strict separation. This interpretation of the Establishment Clause operates as a type of content-based restriction on the government. The Court has interpreted the Free Speech Clause to pro- hibit content-based restrictions because they “value some forms of speech over others,” City of Ladue v. Gilleo, 512 U. S. 43, 60 (1994) (O'Connor, J., concurring), thus tending to “tilt public debate in a preferred direction,” Sorrell v. IMS Health Inc., 564 U. S. 552, 578–579 (2011). The content- based restriction imposed by this Court's Establishment Clause jurisprudence operates no differently. It communi- cates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion. Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility to- ward certain disfavored religions. See P. Hamburger, Sepa- ration of Church and State 391–454 (2002). And this Court's adoption of a separationist interpretation has itself some- times bordered on religious hostility. Justice Black, well known for his role in formulating the Court's modern Estab- lishment Clause jurisprudence, once described Catholic petitioners as “powerful sectarian religious propagandists” Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 495 Thomas, J., concurring “looking toward complete domination and supremacy” of their “preferences and prejudices.” Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 251 (1968) (dissent- ing opinion). Other Members of the Court have character- ized religions as “divisive forces.” Edwards v. Aguillard, 482 U. S. 578, 584 (1987) (internal quotation marks omitted); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 287 (1990) (Stevens, J., dissenting) (internal quotation marks omitted); Illinois ex rel. McCol- lum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 231 (1948) (Frankfurter, J., concurring). And the Court once described a statute permitting employees to request accommodations to avoid work on the Sabbath as “arm[ing]” religious employees with the “absolute and un- qualifed right” to pursue their religion “over all other inter- ests.” Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 709–711 (1985). The siren song of religion is apparently so strong that we once held that public school teachers cannot provide assistance at parochial schools, lest they “subtly (or overtly) conform their instruction to the environment in which they teach.” School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 388 (1985), overruled by Agostini v. Felton, 521 U. S. 203, 235 (1997). In the Court's view, “[t]he `atmos- phere' of a Catholic school ha[d] such power to infuence the unsuspecting mind that it may move even public school . . . specialists to `conform'—though their only contact with the school is to walk down its halls.” McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 122 (1992). Although such hostility may not be overtly expressed by the Court any longer, manifestations of this “trendy disdain for deep religious conviction” assuredly live on. Locke, 540 U. S., at 733 (Scalia, J., dissenting). They are evident in the fact that, unlike other constitutional rights, the mere expo- sure to religion can render an “ `offended observer' ” suff- ciently injured to bring suit against the government, Ameri- can Legion, 588 U. S., at 80 (Gorsuch, J., concurring in 496 ESPINOZA v. MONTANA DEPT. OF REVENUE Thomas, J., concurring judgment), even if he has not been coerced in any way to participate in a religious practice, Lee, 505 U. S., at 584; Engel v. Vitale, 370 U. S. 421, 430 (1962).2 We also see them in the special privilege of taxpayer standing in Establish- ment Clause challenges, even though such suits directly con- travene Article III's restrictions on standing. See Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587, 618 (2007) (Scalia, J., concurring in judgment); see also Bowen v. Kendrick, 487 U. S. 589, 618–620 (1988); Flast v. Cohen, 392 U. S. 83, 102–104 (1968). And they persist in the repeated denigration of those who continue to adhere to traditional moral standards, as well as laws even remotely infuenced by such standards, as outmoded at best and bigoted at worst. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584 U. S. 617, 667 (2018) (Thomas, J., concurring in part and concurring in judgment); Obergefell v. Hodges, 576 U. S. 644, 712 (2015) (Roberts, C. J., dissenting). So long as this hostility remains, fostered by our distorted under- standing of the Establishment Clause, free exercise rights will continue to suffer. * * * As I have recently explained, this Court has an unfortunate tendency to prefer certain constitutional rights over others. See United States v. Sineneng-Smith, 590 U. S. 371, 387–388 (2020) (Thomas, J., concurring). The Free Exercise Clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the Court's ladder of rights, and precari- ously so at that. Returning the Establishment Clause to its proper scope will not completely rectify the Court's dispar- ate treatment of constitutional rights, but it will go a long 2 This stands in striking contrast to the Court's view in the free speech context that “the burden normally falls upon the viewer” to avoid offense “simply by averting his eyes.” Hill v. Colorado, 530 U. S. 703, 753, n. 3 (2000) (Scalia, J., dissenting) (quoting Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975) (quotation altered)). Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 497 Alito, J., concurring way toward allowing free exercise of religion to fourish as the Framers intended. I look forward to the day when the Court takes up this task in earnest. Justice Alito, concurring. I join the opinion of the Court in full. The basis of the decision below was a Montana constitutional provision that, according to the Montana Supreme Court, prohibits parents from participating in a publicly funded scholarship program simply because they send their children to religious schools. Regardless of the motivation for this provision or its prede- cessor, its application here violates the Free Exercise Clause. Nevertheless, the provision's origin is relevant under the decision we issued earlier this Term in Ramos v. Louisiana, 590 U. S. ––– (2020). The question in Ramos was whether Louisiana and Oregon laws allowing non-unanimous jury verdicts in criminal trials violated the Sixth Amendment. The Court held that they did, emphasizing that the States orig- inally adopted those laws for racially discriminatory reasons. See id., at ––– – –––. The role of the Ku Klux Klan was high- lighted. See ibid.; see also id., at ––– (Sotomayor, J., concur- ring in part); id., at ––– (Kavanaugh, J., concurring in part). I argued in dissent that this original motivation, though deplorable, had no bearing on the laws' constitutionality be- cause such laws can be adopted for non-discriminatory rea- sons, and “both States readopted their rules under different circumstances in later years.” Id., at –––. But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here. The origin of Montana's “no-aid” provision, Mont. Const., Art. X, § 6(1) (1972), is emphasized in petitioners' brief and in the briefs of numerous supporting amici. See Brief for Petitioners 31–45; Brief for United States as Amicus Curiae 1–2, 25; Brief for Center for Constitutional Jurisprudence as Amicus Curiae 10–12; Brief for Pioneer Institute, Inc., as Amicus Curiae 5–17; Brief for Cato Institute as Amicus Cu- Page Proof Pending Publication 498 ESPINOZA v. MONTANA DEPT. OF REVENUE Alito, J., concurring riae 2; Brief for State of Oklahoma et al. as Amici Curiae 16; Brief for Montana Catholic School Parents et al. as Amici Curiae 21–25; Brief for Senator Steve Daines et al. as Amici Curiae 1–27 (Sen. Daines Brief); Brief for Becket Fund for Religious Liberty as Amicus Curiae 4–20 (Becket Fund Brief); Brief for the Rutherford Institute as Amicus Curiae 2–10; Brief for Georgia Goal Scholarship Program, Inc., as Amicus Curiae 1–5, 16–21; Brief for Liberty Justice Center et al. as Amici Curiae 16–17; Brief for Alliance for Choice in Education as Amicus Curiae 4–8; Brief for Independence Institute as Amicus Curiae 4–26 (Independence Institute Brief); Brief for Jewish Coalition for Religious Liberty as Amicus Curiae 1–5; Brief for Rusty Bowers et al. as Amici Curiae 8–9; Brief for Center for Education Reform et al. as Amici Curiae 21–27 (CER Brief); Brief for Montana Family Foundation as Amicus Curiae 9–13; Brief for Arizona Chris- tian School Tuition Organization et al. as Amici Curiae 14– 22; Brief for Justice and Freedom Fund et al. as Amici Curiae 22–23; Brief for 131 Current and Former State Leg- islators as Amici Curiae 2–10. These briefs, most of which were not fled by organizations affliated with the Catholic Church, point out that Montana's provision was modeled on the failed Blaine Amendment to the Constitution of the United States. Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants. In ef- fect, the amendment would have “bar[red] any aid” to Catholic and other “sectarian” schools. Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion). As noted in a publication from the United States Commission on Civil Rights, a promi- nent supporter of this ban was the Ku Klux Klan. 1 The Blaine Amendment was narrowly defeated, passing in the House but falling just short of the two-thirds majority 1 See U. S. Commission on Civil Rights, School Choice: The Blaine Amendments & Anti-Catholicism 36 (2007). Cite as: 591 U. S. 464 (2020) 499 Alito, J., concurring needed in the Senate to refer the amendment to the States. See 4 Cong. Rec. 5191–5192 (1876) (House vote); id., at 5595 (28 yeas, 16 nays in the Senate). Afterwards, most States adopted provisions like Montana's to achieve the same ob- jective at the state level, often as a condition of entering the Union. Thirty-eight States still have these “little Blaine Amendments” today. See App. D to Brief for Respondents. This history is well-known and has been recognized in opinions of this Court. See, e. g., Locke v. Davey, 540 U. S. 712, 723, n. 7 (2004); Mitchell, 530 U. S., at 828–829 (plurality opinion); see also ante, at 482; Zelman v. Simmons-Harris, 536 U. S. 639, 720–721 (2002) (Breyer , J., dissenting). But given respondents' and one dissent's efforts to downplay it in contravention of Ramos, see Brief for Respondents 16–23; post, at 542, n. 2 (Sotomayor , J., dissenting), it deserves a brief retelling. A wave of immigration in the mid-19th century, spurred in part by potato blights in Ireland and Germany, signifcantly increased this country's Catholic population. 2 Nativist fears increased with it. An entire political party, the Know Noth- ings, formed in the 1850s “to decrease the political infuence of immigrants and Catholics,” gaining hundreds of seats in Federal and State Government. 3 Catholics were considered by such groups not as citizens of the United States, but as “soldiers of the Church of Rome,” 4 who “would attempt to subvert representative gov- ernment.” 5 Catholic education was a particular concern. As one series of newspaper articles argued, “ `Popery is the natural enemy of general education. . . . If it is establishing schools, it is to make them prisons of the youthful intellect 2 See T. Anbinder, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s, pp. 6–8 (1992). 3 Id., at 127–128, 135. 4 Id., at 110 (emphasis deleted). 5 P. Hamburger, Separation of Church and State 206 (2002). Page Proof Pending Publication 500 ESPINOZA v. MONTANA DEPT. OF REVENUE Alito, J., concurring of the country.' ” C. Glenn, The Myth of the Common School 69 (1988) (Glenn) (quoting S. Morse, Foreign Conspiracy Against the Liberties of the United States (1835)). With a Catholic school breaking ground in New York City, the New York Times ran an article titled “Sectarian Education. Anti-Public School Crusade. Aggressive Attitude of the Roman Catholic Clergy—The Terrors of the Church Threat- ened.” N. Y . Times, Aug. 24, 1873, p. 8. The project, the article concluded, would cause “intense anxiety by all who are interested in upholding the admirable system of public school education.” Ibid. The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper's Weekly in 1871, which depicts Catholic priests as crocodiles slithering hun- grily toward American children as a public school crumbles in the background: Page Proof Pending Publication The resulting wave of state laws withholding public aid from “sectarian” schools cannot be understood outside this context. Indeed, there are stronger reasons for considering Cite as: 591 U. S. 464 (2020) 501 Alito, J., concurring original motivations here than in Ramos because, unlike the neutral language of Louisiana's and Oregon's nonunanimity rules, Montana's no-aid provision retains the bigoted code language used throughout State Blaine Amendments. The failed Blaine Amendment would have prohibited any public funds or lands devoted to schooling from “ever be[ing] under the control of any religious sect.” 4 Cong. Rec. 205 (1875). As originally adopted, Montana's Constitution pro- hibited the state and local governments from “ever mak[ing,] directly or indirectly, any appropriation” for “any sectarian purpose” or “to aid in the support of any school . . . controlled in whole or in part by any church, sect or denomination whatever.” Mont. Const., Art. XI, § 8 (1889). At the time, “it was an open secret that `sectarian' was code for `Catho- lic.' ” Mitchell, 530 U. S., at 828 (plurality opinion). Dic- tionaries defned a “sectarian” as a member “of a party in religion which has separated itself from the established church, or which holds tenets different from those of the pre- vailing denomination in a kingdom or state”—a heretic. N. Webster, An American Dictionary of the English Language (1828); see also Independence Institute Brief 9–16 (collecting several similar defnitions). Newspapers throughout the country, including in Montana, used the word in similarly pejorative fashion. See id., at 17–26 (collecting several arti- cles). The term was likewise used against Mormons and Jews. 6 Backers of the Blaine Amendment either held nativist views or capitalized on them. When Blaine introduced the amendment, The Nation reported that it was “a Constitu- tional amendment directed against the Catholics”—while surmising that Blaine, whose Presidential ambitions were known, sought “to use it in the campaign to catch anti- 6 See Natelson, Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federalist Soc. Rev. 98, 104 (2018). Page Proof Pending Publication 502 ESPINOZA v. MONTANA DEPT. OF REVENUE Alito, J., concurring Catholic votes.” 7 The amendment had its intended galva- nizing effect. “Its popularity was so great” that “even con- gressional Democrats,” who depended on Catholic votes, “were expected to support it,” and the congressional foor debates were rife with anti-Catholic sentiment, including “a tirade against Pope Pius IX.” 8 Montana's no-aid provision was the result of this same prejudice. When Congress allowed Montana into the Union in 1889, it still included prominent supporters of the failed Blaine Amendment. See Sen. Daines Brief 10–13. The Act enabling Montana to become a State required “[t]hat provi- sion shall be made for the establishment and maintenance of systems of public schools . . . free from sectarian control.” Act of Feb. 22, 1889, § 4, 25 Stat. 677; see also Becket Fund Brief 17–18 (quoting one Senator's description of the Act as “ `completing the unfnished work of the failed Blaine Amend- ment' ”). Montana thereafter adopted its constitutional rule against public funding for any school “controlled” by a “sect.” Mont. Const., Art. XI, § 8 (1889). There appears to have been no doubt which schools that meant. As petitioners show, Montana's religious schools—and its private schools in general—were predominantly Catholic, see Brief for Peti- tioners 42, and n. 41, and anti-Catholicism was alive in Mon- tana too. See, e. g., Sen. Daines Brief 1–3 (describing a riot over an anti-Catholic sign hung over a Butte saloon on Inde- pendence Day, 1894). Respondents argue that Montana's no-aid provision merely refects a state interest in “preserv[ing] funding for public schools,” Brief for Respondents 7, known as common schools during the Blaine era. Yet just as one cannot sepa- rate the Blaine Amendment from its context, “[o]ne cannot 7 Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992) (quoting article; internal quotation marks omitted). 8 DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J. L. & Pub. Pol'y 551, 566, 570 (2003); see also, e. g., Becket Fund Brief 5–11. Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 503 Alito, J., concurring separate the founding of the American common school and the strong nativist movement.” 9 Spearheaded by Horace Mann, Secretary of the Massachu- setts Board of Education from 1837 to 1848, the common- school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly diffcult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common-denominator Pro- testantism.” 10 This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” 4 Life and Works of Horace Mann 312 (1891) (Mann's 12th annual report on the Massa- chusetts schools; emphasis deleted). Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians. 11 Mann's goal was to “Americanize” the incoming Catho- lic immigrants. In fact, he and other proponents of the common-school movement used language and made insin- uations that today would be considered far more infam- matory. In his 10th annual report on the Massachu- setts schools, Mann described the State as “parental,” assuming the responsibility of weaning children “[f]or the support of the poor, nine-tenths of whose cost origi- nate with foreigners or come from one prolifc vice,” mean- ing alcohol. Id., at 132, 134 (emphasis deleted). In other writing, he described the common-school movement as “ `laboring to elevate mankind into the upper and purer re- 9 Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J. L. & Pub. Pol'y 657, 667 (1998) (Viter- itti, Blaine's Wake). 10 Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 298 (2001) (Jeffries & Ryan); see also, e. g., CER Brief 23–26. 11 See Glenn 166; Lain, God, Civic Virtue, and the American Way: Recon- structing Engel, 67 Stan. L. Rev. 479, 487–488 (2015). Page Proof Pending Publication 504 ESPINOZA v. MONTANA DEPT. OF REVENUE Alito, J., concurring gions of civilization, Christianity, and the worship of the true God; all those who are obstructing the progress of this cause are impelling the race backwards into barbarism and idola- try.' ” Glenn 171–172 (quoting an 1846 article by Mann in the Common School Journal). These “obstructers” were Catholic and other religious groups and families who objected to the common schools' re- ligious programming, which, as just seen, was not neutral on matters of religion. Objections met violent response. In Massachusetts and elsewhere, Catholic students were beaten and expelled for refusing to read from the King James Bible. 12 In New York, a mob destroyed the residence of Bishop John Hughes, who had argued that, if the State was going to fund religious public education, it should also sup- port church schools. The militia needed to be called to pro- tect St. Patrick's Cathedral. 13 Most notorious were the Philadelphia Bible Riots. In 1844, a rumor circulated in the city's nativist newspapers that a school director, who was Catholic, had ordered that Bible reading be stopped. 14 Months of scaremongering broke out into riots that left two of the city's Catholic churches burned and several people dead. Only by calling out the militia and positioning a can- non in front of a Catholic church—which itself had been tak- ing cannon fre—were the riots ultimately quelled. 15 Catholic and Jewish schools sprang up because the com- mon schools were not neutral on matters of religion. “Faced with public schools that were culturally Protestant and with curriculum[s] and textbooks that were, consequently, rife with material that Catholics and Jews found offensive, many 12 See Jeffries & Ryan 300. 13 See Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 151 (1999). 14 See Sekulow & Tedesco, The Story Behind Vidal v. Girard's Execu- tors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty, 32 Pepperdine L. Rev. 605, 630 (2005). 15 See id., at 633–638. Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 505 Alito, J., concurring Catholics and Orthodox Jews created separate schools,” and those “who could afford to do so sent their children to” those schools.16 But schools require signifcant funding, and when religious organizations requested state assistance, Mann and others labeled them “sectarian”—that is, people who had separated from the prevailing orthodoxy. See, e. g., Jeffries & Ryan 298, 301. The Blaine movement quickly followed. In 1854, the Know Nothing party, in many ways a forerunner of the Ku Klux Klan, 17 took control of the legislature in Mann's Commonwealth of Massachusetts and championed one of the frst constitutional bans on aid to “sectarian” schools (along with attempting to limit the franchise to native-born people). See Viteritti, Blaine's Wake 669–670. Respondents and one dissent argue that Montana's no-aid provision was cleansed of its bigoted past because it was re- adopted for non-bigoted reasons in Montana's 1972 constitu- tional convention. See post, at 541–542, n. 2 (opinion of So- tomayor, J.); see also Brief for Respondents 18; Tr. of Oral Arg. 22–23. They emphasize that the convention included Catholics, just as the constitutional convention that re- adopted Louisiana's purportedly racist non-unanimous jury provision included black delegates. As noted, a virtually identical argument was rejected in Ramos, even though “ `no mention was made of race' ” during the Louisiana convention debates. 590 U. S., at ––– (Alito , J., dissenting) (quoting State v. Hankton, 2012–0375, p. 19 (La. App. 4 Cir. 8/2/13), 122 So. 3d 1028, 1038). Under Ramos, it emphatically does not matter whether Montana readopted the no-aid provision for benign reasons. The provision's “uncomfortable past” 16 Brief for Union of Orthodox Jewish Congregations of America as Ami- cus Curiae in Trinity Lutheran Church of Columbia, Inc. v. Comer, O. T. 2016, No. 15–577, p. 15 (internal quotation marks, citation, and brackets omitted). 17 See generally Myers, Know Nothing and Ku Klux Klan, 219 North Am. Rev. 1 (Jan. 1924). 506 ESPINOZA v. MONTANA DEPT. OF REVENUE Alito, J., concurring must still be “[e]xamined.” 590 U. S., at –––, n. 44 (opinion of the Court). And here, it is not so clear that the animus was scrubbed. Delegates at Montana's constitutional convention in 1972 acknowledged that the no-aid provision was “a badge of big- otry,” with one Catholic delegate recalling “being let out of school in the fourth grade to erase three `Ks' on the front doors of the Catholic church in Billings.” 18 Nevertheless the convention proposed, and the State adopted, a provision with the same material language, prohibiting public aid “for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, § 6(1) (1972) (emphasis added). A lead- ing defnition of “sect” at the time, as during the Blaine era, was “a dissenting religious body; esp: one that is heretical in the eyes of other members within the same communion.” Webster's Third New International Dictionary 2052 (1971) (some emphasis added). Given the history above, the terms “sect” and “sectarian” are disquieting remnants. And once again, there appears to have been little doubt which schools this provision would predominantly affect. In 1970, according to the National Center for Educational Statistics, Montana had 61 religiously affliated schools. Forty-fve were Roman Catholic. 19 Not only did the convention delegates acknowledge the no-aid provision's original anti-Catholic intent, but the Montana Su- 18 6 Montana Constitutional Convention 1971–1972, Proceedings and Transcript, p. 2012 (Mont. Legislature and Legislative Council) (Conven- tion Tr.) (statement of Delegate Schiltz); see also, e. g., id., at 2010 (state- ment of Delegate Harbaugh) (recognizing the provision as a Blaine Amendment, which “espoused the purpose of the Know-nothing Party”); id., at 2011 (statement of Delegate Toole) (recognizing the provision as a Blaine Amendment); id., at 2013 (statement of Chairman Graybill) (same); id., at 2027 (statement of Delegate Campbell) (same); id., at 2030 (state- ment of Delegate Champoux) (same). 19 See Nat. Center for Educational Statistics, Statistics of Nonpublic Ele- mentary and Secondary Schools 1970–71, pp. 32–33 (1973) (Table 1). Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 507 Alito, J., concurring preme Court had only ever applied the provision once—to a Catholic school, and one that had “carrie[d] a sizeable portion of the total educational load” in Anaconda, Montana. State ex rel. Chambers v. School Dist. No. 10 of Deer Lodge Cty., 155 Mont. 422, 430, 472 P. 2d 1013, 1017 (1970) (per curiam ). The Montana Catholic Conference also voiced concerns about access to school funds, and a convention delegate proposed removing the no-aid provision's restriction on “indirect” aid. See Convention Tr. 2010, 2027. That amendment was rejected. Thus, the no-aid provision's terms keep it “[t]ethered” to its original “bias,” and it is not clear at all that the State “actually confront[ed]” the provision's “tawdry past in reen- acting it.” Ramos, 590 U. S., at ––– (Sotomayor, J., concur- ring in part). After all, whereas the no-aid provision had originally been foisted on Montana, the State readopted it voluntarily—“sectarian” references included. Whether or not the State did so for any reason that could be called legiti- mate, the convention delegates recognized that the provision would “continue to mean and do whatever it does now,” Con- vention Tr. 2014 (statement of Delegate Loendorf), and the discrimination in this case shows that the provision contin- ues to have its originally intended effect. And even if Mon- tana had done more to address its no-aid provision's past, that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 States, by respond- ents' count, that have not readopted or amended them since around the turn of the 20th century. 20 20 Ala. Const., Art. XIV , § 263 (1901); Ariz. Const., Art. II, § 12, Art. IX, § 10 (1912); Colo. Const., Art. V , § 34, Art. IX, § 7 (1876); Del. Const., Art. X, § 3 (1897); Ind. Const., Art. I, § 6 (1851); Ky. Const. § 189 (1891); Miss. Const., Art. 8, § 208 (1890); Nev. Const., Art. XI, § 10 (1880); N. H. Const., Pt. II, Art. 83 (1877); N. M. Const., Art. XII, § 3 (1911); N. D. Const., Art. VIII, § 152 (1889); Ohio Const., Art. VI, § 2 (1851); Okla. Const., Art. II, § 5 (1907); Ore. Const., Art. I, § 5 (1857); S. D. Const., Art. VIII, § 16 (1889); Wis. Const., Art. I, § 18, Art. X, § 3 (1848); Wyo. Const., Art. I, § 19, Art. VII, § 8 (1889). 508 ESPINOZA v. MONTANA DEPT. OF REVENUE Gorsuch, J., concurring Today's public schools are quite different from those envi- sioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a world- view that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax- credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided neces- sary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The pro- gram helped parents of modest means do what more affuent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France's sardonic remark that “ `[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' ” J. Cournos, A Modern Plutarch 35 (1928). Justice Gorsuch, concurring. The people of Montana, acting through their legislature, adopted a school choice program. It provided a modest tax credit to individuals and businesses who donated to nonproft scholarship organizations. As the program began to take root, Montana had just one scholarship organization. It granted scholarships to families who were struggling fnan- cially or had children with disabilities. Recipients were free to use the scholarships at the schools of their choice. Some families chose secular schools, others religious ones. Kendra Espinoza, the lead petitioner in this case, is a sin- gle mother who works three jobs. She planned to use schol- arships to help keep her daughters at an accredited religious school. That is, until the Montana Supreme Court struck down the tax credit program. Those seeking a tax credit were free to choose whether to direct their donations to the independent scholarship organization; the organization was Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 509 Gorsuch, J., concurring then free to choose scholarship recipients; and, after that, parents were free to choose where to use those scholarships. But, the Montana Supreme Court held, this arrangement im- permissibly allowed state funds to fnd their way to religious schools, in violation of a state constitutional provision. By way of remedy, the court ordered an end to the tax credit program, effectively killing Montana's school choice experi- ment: Without tax credits, donations dry up, and so do the scholarships enabling school choice. Today, the Court explains how the Montana Constitution, as interpreted by the State Supreme Court, violates the First Amendment by discriminating against parents and schools based on their religious status or identity. The Court explains, too, why the State Supreme Court's decision to eliminate the tax credit program fails to mask the discrim- ination. But for the Montana Constitution's impermissible discrimination, after all, the legislature's tax credit and scholarship program would be still operating for the beneft of Ms. Espinoza and everyone else. I agree with all the Court says on these scores and join its opinion in full. I write separately only to address an additional point. The Court characterizes the Montana Constitution as dis- criminating against parents and schools based on “religious status and not religious use.” Ante, at 477. No doubt, the Court proceeds as it does to underscore how the outcome of this case follows from Trinity Lutheran Church of Colum- bia, Inc. v. Comer, 582 U. S. 449 (2017), where the Court struck down a similar public benefts restriction that, it held, discriminated on the basis of religious status. No doubt, too, discrimination on the basis of religious status raises grave constitutional questions for the reasons the Court de- scribes. But I was not sure about characterizing the State's discrimination in Trinity Lutheran as focused only on reli- gious status, and I am even less sure about characterizing the State's discrimination here that way. See id., at 469 (Gorsuch, J., concurring in part). 510 ESPINOZA v. MONTANA DEPT. OF REVENUE Gorsuch, J., concurring In the frst place, discussion of religious activity, uses, and conduct—not just status—pervades this record. The Mon- tana Constitution forbids the use of public funds “for any sectarian purpose,” including to “aid” sectarian schools. Art. X, § 6(1). Tracking this directive, the State Supreme Court reasoned that the legislature's tax credit program could be used to “subsidiz[e] the sectarian school's educational pro- gram” and thereby “strengthen . . . religious education.” 393 Mont. 446, 466, 467, 435 P. 3d 603, 613, 614 (2018). Meanwhile, Ms. Espinoza admits that she would like to use scholarship funds to enable her daughters to be taught in school the “same Christian values” they are taught at home. App. to Pet. for Cert. 152. Finally, in its briefng before this Court, Mon- tana has represented that its Constitution focuses on pre- venting the use of tax credits to subsidize religious activity. Not only is the record replete with discussion of activities, uses, and conduct, any jurisprudence grounded on a status- use distinction seems destined to yield more questions than answers. Does Montana seek to prevent religious parents and schools from participating in a public benefts program (status)? Or does the State aim to bar public benefts from being employed to support religious education (use)? Maybe it's possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State's discrimination focused on what religious parents and schools do—teach reli- gion. Nor are the line-drawing challenges here unique; they have arisen before and will again. See Trinity Lutheran, 582 U. S., at 469 (opinion of Gorsuch, J.). Most importantly, though, it is not as if the First Amend- ment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. At the time of the First Amend- ment's adoption, the word “exercise” meant (much as it Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 511 Gorsuch, J., concurring means today) some “[l]abour of the body,” a “[u]se,” as in the “actual application of any thing,” or a “[p]ractice,” as in some “outward performance.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773); see also ibid. (5th ed. 1784). By speaking of a right to “free exercise,” rather than a right “of conscience,” an alternative the framers considered and rejected, our Constitution “extended the broader freedom of action to all believers.” McConnell, The Origins and Histor- ical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1490 (1989). So whether the Montana Consti- tution is better described as discriminating against religious status or use makes no difference: It is a violation of the right to free exercise either way, unless the State can show its law serves some compelling and narrowly tailored gov- ernmental interest, conditions absent here for reasons the Court thoroughly explains. Our cases have long recognized the importance of protect- ing religious actions, not just religious status. In its very frst decision applying the Free Exercise Clause to the States, the Court explained that the First Amendment pro- tects the “freedom to act” as well as the “freedom to be- lieve.” Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). The Court then reversed a criminal conviction against New- ton Cantwell and his sons, Jehovah's Witnesses who were prosecuted not because of who they were but because of what they did—proselytize door to door without a license. See id., at 300–301, 307, 311. In fact, this Court has already recognized that parents' decisions about the education of their children—the very conduct at issue here—can consti- tute protected religious activity. In Wisconsin v. Yoder, 406 U. S. 205 (1972), the Court held that Amish parents could not be compelled to send their children to a public high school if doing so would confict with the dictates of their faith. See id., at 214–215, 220, 234–235. Even cases that seemingly focus on religious status do so with equal respect for religious actions. In McDaniel v. 512 ESPINOZA v. MONTANA DEPT. OF REVENUE Gorsuch, J., concurring Paty, 435 U. S. 618 (1978) (plurality opinion), for example, a State had barred the clergy from serving in the state legisla- ture or at the state constitutional convention. See id., at 620–622. Some have described the discrimination there as focused on religious “ `status.' ” Trinity Lutheran, 582 U. S., at 459 (quoting McDaniel, 435 U. S., at 627) (emphasis deleted). But no one can question that conduct lurked just beneath the surface. After all, the State identifed clergy based on their “conduct and activity,” and the plurality opin- ion concluded that the State's prohibition was based on “sta- tus, acts, and conduct.” Id., at 627; see also id., at 630–633 (Brennan, J., concurring in judgment); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993). Consistently, too, we have recognized the First Amend- ment's protection for religious conduct in public benefts cases. When the government chooses to offer scholarships, unemployment benefts, or other affrmative assistance to its citizens, those benefts necessarily affect the “baseline against which burdens on religion are measured.” Locke v. Davey, 540 U. S. 712, 726 (2004) (Scalia, J., dissenting) (citing Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947)). So, as we have long explained, the government “penalize[s] religious activity” whenever it denies to religious persons an “equal share of the rights, benefts, and privileges enjoyed by other citizens.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 449 (1988). What benefts the government decides to give, whether meager or munif- cent, it must give without discrimination against religious conduct. Our cases illustrate the point. In Sherbert v. Verner, 374 U. S. 398 (1963), for example, a State denied unemployment benefts to Adell Sherbert not because she was a Seventh- day Adventist but because she had put her faith into practice by refusing to labor on the day she believed God had set aside for rest. See id., at 399–401. Recognizing her right to exercise her religion freely, the Court held that Ms. Sher- Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 513 Gorsuch, J., concurring bert was entitled to benefts. See id., at 410. Similarly, in Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707 (1981), the Court held that Eddie Thomas had the right to resign from his job and still collect an unemploy- ment check after he decided he could not assemble military tank turrets consistent with the teachings of his faith. See id., at 709–712, 720. In terms that speak equally to our case, the Court explained that the government tests the Free Ex- ercise Clause whenever it “conditions receipt of an important beneft upon conduct proscribed by a religious faith, or . . . denies such a beneft because of conduct mandated by reli- gious belief, thereby putting substantial pressure on an ad- herent to modify his behavior and to violate his beliefs.” Id., at 717–718. The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her reli- gion but may be targeted for observing her religious calen- dar? Often, governments lack effective ways to control what lies in a person's heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all. If the government could intrude so much in matters of faith, too, winners and losers would soon emerge. Those ap- athetic about religion or passive in its practice would suffer little in a world where only inward belief or status is pro- tected. But what about those with a deep faith that re- quires them to do things passing legislative majorities might fnd unseemly or uncouth—like knocking on doors to spread their beliefs, refusing to build tank turrets during wartime, or teaching their children at home? “[T]hose who take their Page Proof Pending Publication 514 ESPINOZA v. MONTANA DEPT. OF REVENUE Gorsuch, J., concurring religion seriously, who think that their religion should affect the whole of their lives,” and those whose religious beliefs and practices are least popular, would face the greatest dis- abilities. Mitchell v. Helms, 530 U. S. 793, 827–828 (2000) (plurality opinion). A right meant to protect minorities in- stead could become a cudgel to ensure conformity. It doesn't take a long or searching look through history or around the world to see how this can go. In the century before our Nation's founding, Oliver Cromwell promised to Catholics in Ireland: “ `As to freedom of conscience, I meddle with no man's conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.' ” McDaniel, 435 U. S., at 631, n. 2 (opinion of Brennan, J.) (quoting S. Hook, Paradoxes of Free- dom 23 (1962)); see also 1 T. Carlyle, Oliver Cromwell's Let- ters and Speeches 395 (1845) (recording Cromwell's October 19, 1649, letter to the Governor of Ross). Even today, in fefdoms small and large, people of faith are made to choose between receiving the protection of the State and living lives true to their religious convictions. Of course, in public benefts cases like the one before us the stakes are not so dramatic. Individuals are forced only to choose between forgoing state aid or pursuing some aspect of their faith. The government does not put a gun to the head, only a thumb on the scale. But, as so many of our cases explain, the Free Exercise Clause doesn't easily toler- ate either; any discrimination against religious exercise must meet the demands of strict scrutiny. In this way, the Clause seeks to ensure that religion remains “a matter of voluntary choice by individuals and their associations, [where] each sect . . . `fourish[es] according to the zeal of its adherents and the appeal of its dogma,' ” infuenced by neither where the government points its gun nor where it places its thumb. McDaniel, 435 U. S., at 640 (opinion of Brennan J.) (quoting Zorach v. Clauson, 343 U. S. 306, 313 (1952)). Cite as: 591 U. S. 464 (2020) 515 Ginsburg, J., dissenting Montana's Supreme Court disregarded these foundational principles. Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public beneft discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no differ- ence: It is unconstitutional all the same. Justice Ginsburg , with whom Justice Kagan joins, dissenting. The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. See Mont. Code Ann. § 15–30–3111 (2019). In the decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conficted with the State Constitution's no-aid provi- sion, which forbids government appropriations to religious schools. Mont. Const., Art. X, § 6(1). Parents who sought to use the program's scholarships to fund their children's reli- gious education challenged the state court's ruling. They argue in this Court that the Montana court's application of the no-aid provision violated the Free Exercise Clause of the Federal Constitution. Importantly, the parents, petitioners here, disclaim any challenge to the no-aid provision on its face. They instead argue—and this Court's majority ac- cepts—that the provision is unconstitutional as applied be- cause the First Amendment prohibits discrimination in tuition-beneft programs based on a school's religious status. Because the state court's decision does not so discriminate, I would reject petitioners' free exercise claim. The First Amendment prohibits the government from “mak[ing a] law . . . prohibiting the free exercise” of religion. U. S. Const., Amdt. 1. This Court's decisions have recog- nized that a burden on religious exercise may occur both Page Proof Pending Publication 516 ESPINOZA v. MONTANA DEPT. OF REVENUE Ginsburg, J., dissenting when a State proscribes religiously motivated activity and when a law pressures an adherent to abandon her religious faith or practice. Sherbert v. Verner, 374 U. S. 398, 406 (1963); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 140–141 (1987). The Free Exercise Clause thus protects against “indirect coercion or penalties on the free exercise of religion.” Lyng v. Northwest Indian Ceme- tery Protective Assn., 485 U. S. 439, 450 (1988). Invoking that principle in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449 (2017), the Court observed that dis- qualifying an entity from a public beneft “solely because of [the entity's] religious character” can impose “a penalty on the free exercise of religion.” Id., at 462. The Court then concluded that a Missouri law making churches ineligible for a government playground-refurbishing grant impermissibly burdened the church's religious exercise by “put[ting it] to the choice between being a church and receiving a govern- ment beneft.” Id., at 465. Petitioners argue that the Montana Supreme Court's deci- sion fails when measured against Trinity Lutheran. I do not see how. Past decisions in this area have entailed dif- ferential treatment occasioning a burden on a plaintiff's reli- gious exercise. Lyng, 485 U. S., at 450–451; Trinity Lu- theran, 582 U. S., at 463. This case is missing that essential component. Recall that the Montana court remedied the state constitutional violation by striking the scholarship pro- gram in its entirety. Under that decree, secular and sectar- ian schools alike are ineligible for benefts, so the decision cannot be said to entail differential treatment based on peti- tioners' religion. Put somewhat differently, petitioners argue that the Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit— and neutrally is how Montana treats them in the wake of the state court's decision. Accordingly, the Montana Supreme Court's decision does not place a burden on petitioners' religious exercise. Peti- Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 517 Ginsburg, J., dissenting tioners may still send their children to a religious school. And the Montana Supreme Court's decision does not pres- sure them to do otherwise. Unlike the law in Trinity Lu- theran, the decision below puts petitioners to no “choice”: Neither giving up their faith, nor declining to send their chil- dren to sectarian schools, would affect their entitlement to scholarship funding. 582 U. S., at 462. There simply are no scholarship funds to be had. True, petitioners expected to be eligible for scholarships under the legislature's program, and to use those scholar- ships at a religious school. And true, the Montana court's decision disappointed those expectations along with those of parents who send their children to secular private schools. But, as Justice Sotomayor observes, see post, at 540 (dis- senting opinion), this Court has consistently refused to treat neutral government action as unconstitutional solely because it fails to beneft religious exercise. See Sherbert, 374 U. S., at 412 (Douglas, J., concurring) (“[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”). These considerations should be fatal to petitioners' free exercise claim, yet the Court does not confront them. In- stead, the Court decides a question that, in my view, this case does not present: “[W]hether excluding religious schools and affected families from [the scholarship] program was con- sistent with the Federal Constitution.” Ante, at 474 (major- ity opinion). The Court goes on to hold that the Montana Supreme Court's application of the no-aid provision violates the Free Exercise Clause because it “ `condition[s] the avail- ability of benefts upon a recipient's willingness to surrender [its] religiously impelled status.' ” Ante, at 478 (quoting Trinity Lutheran, 582 U. S., at 461–462; some alterations omitted). As I see it, the decision below—which maintained neutrality between sectarian and nonsectarian private schools—did no such thing. Page Proof Pending Publication Page Proof Pending Publication 518 ESPINOZA v. MONTANA DEPT. OF REVENUE Ginsburg, J., dissenting Finding the “beginning” of the Montana Supreme Court's decision erroneous, this Court regards the state court's ulti- mate judgment as irrelevant. Ante, at 487–489. In the Court's recounting, the Montana court frst held that reli- gious schools must be excluded from the scholarship pro- gram—necessarily determining that the Free Exercise Clause permitted that result—and only subsequently struck the entire program as a way of carrying out its holding. See ante, at 487–488 (“When the [Montana Supreme] Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation.”). But the ini- tial step described by this Court is imaginary. The Montana court determined that the scholarship program violated the no-aid provision because it resulted in aid to religious schools. Declining to rewrite the statute to exclude those schools, the state court struck the program in full. 393 Mont. 446, 463–468, 435 P. 3d 603, 612–614 (2018). In doing so, the court never made religious schools ineligible for an otherwise available beneft, and it never decided that the Free Exercise Clause would allow that outcome. 1 Thus, contrary to this Court's assertion, see ante, at 488, the no-aid provision did not require the Montana Supreme Court to “exclude” religious schools from the scholarship program. The provision mandated only that the state treas- ury not be used to fund religious schooling. As this case demonstrates, that mandate does not necessarily require dif- ferential treatment. The no-aid provision can be imple- 1 In its opinion, Montana's highest court stated without explanation that this case is not one in which application of the no-aid provision violates the Free Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614. When the court made that statement, it had already invalidated the entire schol- arship program. Ibid. Accordingly, the court's statement cannot be un- derstood to have approved of excluding religious schools from an other- wise available scholarship. Instead, the statement is most fairly read to convey that the Free Exercise Clause allows a State to decline to fund any private schools, an outcome that avoids state aid to religious schools. Cite as: 591 U. S. 464 (2020) 519 Ginsburg, J., dissenting mented in two ways. A State may distinguish within a ben- eft program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. See ante, at 487. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative. By urging that it is impossible to apply the no-aid provi- sion in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. See ante, at 487–488. Petitioners, however, disavowed a fa- cial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no-aid provision divorced from its application to a specifc govern- ment beneft. See, e. g., Reply Brief 8, 20, 21–22. This Court therefore had no call to reach that issue. See Adams v. Robertson, 520 U. S. 83, 90 (1997) (per curiam ) (“ `[I]t would be unseemly in our dual system of government' to disturb the fnality of state judgments on a federal ground that the state court did not have occasion to consider.” (quot- ing Webb v. Webb, 451 U. S. 493, 500 (1981))). The only ques- tion properly raised is whether application of the no-aid pro- vision to bar all state-sponsored private-school funding violates the Free Exercise Clause. For the reasons stated, supra, at 516–517, it does not. Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State de- cides to do so, it cannot disqualify some private schools solely because they are religious.” Ante, at 487. Because Mon- tana's Supreme Court did not make such a decision—its judg- ment put all private-school parents in the same boat—this Court had no occasion to address the matter. 2 On that sole 2 The Montana Supreme Court's decision leaves parents where they would be had the State never enacted a scholarship program. In that event, no one would argue that Montana was obliged to provide such a program solely for parents who send their children to religious Page Proof Pending Publication 520 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting ground, and reaching no other issue, I dissent from the Court's judgment. Justice Breyer, with whom Justice Kagan joins as to Part I, dissenting. The First Amendment's Free Exercise Clause guarantees the right to practice one's religion. At the same time, its Establishment Clause forbids government support for reli- gion. Taken together, the Religion Clauses have helped our Nation avoid religiously based discord while securing liberty for those of all faiths. This Court has long recognized that an overly rigid appli- cation of the Clauses could bring their mandates into confict and defeat their basic purpose. See, e. g., Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 668–669 (1970). And this potential confict is nowhere more apparent than in cases involving state aid that serves religious purposes or institutions. In such cases, the Court has said, there must be constitutional room, or “ `play in the joints,' ” between “what the Establishment Clause permits and the Free Exer- cise Clause compels.” Trinity Lutheran Church of Colum- bia, Inc. v. Comer, 582 U. S. 449, 458 (2017) (quoting Locke v. Davey, 540 U. S. 712, 718 (2004)). Whether a particular state program falls within that space depends upon the na- ture of the aid at issue, considered in light of the Clauses' objectives. The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause for- bids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority's approach and its conclusion in this case, I fear, risk the kind of entanglement and confict that the Religion Clauses are intended to prevent. I consequently dissent. schools. But cf. ante, at 508 (Alito, J., concurring) (inapt reference to Anatole France's remark). Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 521 Breyer, J., dissenting I In 2015, Montana's Legislature enacted a statute giving a $150 tax credit to any person who contributes at least that amount to an organization that provides scholarships for stu- dents who attend nonpublic schools. See Mont. Code Ann. § 15–30–3111 (2019). The overwhelming majority of these schools are religious. (In 2018, 94% of the scholarships awarded helped to pay religious-school tuition. 393 Mont. 446, 466, 478–479, and n. 6, 435 P. 3d 603, 613, 621, and n. 6; App to Pet. for Cert. 123, 125.) The Montana Supreme Court held that this program violated a state constitutional provision that forbids the legislature to make “any direct or indirect appropriation or payment” for “any sectarian pur- pose or to aid any church, school, academy . . . controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, § 6. Petitioners are the parents of students who attend one of Montana's Christian private schools. They believe that the tenets of their faith require them to send their children to a religious school. And they claim that, by preventing them from using state-supported scholarships at those schools, the Montana Supreme Court's interpretation of Montana's Con- stitution violates their First Amendment right to free exer- cise. I shall assume, for purposes of this opinion, that peti- tioners' free exercise claim survived the Montana Supreme Court's wholesale invalidation of the tax credit program. Cf. ante, at 516 (Ginsburg , J., dissenting); post, at 539–540 (Sotomayor, J., dissenting). A We all recognize that the First Amendment prohibits dis- crimination against religion. At the same time, our history and federal constitutional precedent refect 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. See, Page Proof Pending Publication 522 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting e. g., Committee for Public Ed. & Religious Liberty v. Ny- quist, 413 U. S. 756, 794–796 (1973). The Court has conse- quently made it clear that the Constitution commits the gov- ernment to a “position of neutrality” in respect to religion. School Dist. of Abington Township v. Schempp, 374 U. S. 203, 226 (1963). The inherent tension between the Establishment and Free Exercise Clauses means, however, that the “course of consti- tutional neutrality in this area cannot be an absolutely straight line.” Walz, 397 U. S., at 669. Indeed, “rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” Ibid. That, in signifcant part, is why the Court has held that “there is room for play in the joints” between the Clauses' express prohibitions that is “productive of a benevolent neu- trality,” allowing “religious exercise to exist without spon- sorship and without interference.” Ibid. It has held that there “are some state actions permitted by the Establish- ment Clause but not required by the Free Exercise Clause.” Locke, 540 U. S., at 719; see Cutter v. Wilkinson, 544 U. S. 709, 719 (2005). And that “play in the joints” should, in my view, play a determinative role here. It may be that, under our precedents, the Establishment Clause does not forbid Montana to subsidize the education of petitioners' children. But the question here is whether the Free Exercise Clause requires it to do so. The majority be- lieves that the answer to that question is “yes.” It writes that “once a State decides” to support nonpublic education, “it cannot disqualify some private schools solely because they are religious.” Ante, at 487. I shall explain why I disagree. B As the majority acknowledges, two cases are particularly relevant: Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, and Locke v. Davey, 540 U. S. 712. In Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 523 Breyer, J., dissenting Trinity Lutheran, we considered whether Missouri could ex- clude a church-owned preschool from applying for a grant to renovate its playground. The Court assumed that the Es- tablishment Clause permitted the State to make grants of this kind to church-affliated schools. See 582 U. S., at 458. But, the Court added, this did not “answer the question” because there is “ `play in the joints' between what the Es- tablishment Clause permits and the Free Exercise Clause compels.” Ibid. The Court therefore went on to consider the burdens that Missouri's law imposed upon the church's right to free exercise. By excluding schools with ties to churches, the Court wrote, the State's law put the church “to a choice: It may participate in an otherwise available beneft program or re- main a religious institution.” Id., at 462. That kind of “ `in- direct coercion,' ” the Court explained, “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Id., at 462, 463. Finding that a State's “policy preference for skating as far as possible from religious estab- lishment concerns” could not satisfy that standard, the Court held that the Free Exercise Clause required Missouri to in- clude church-affliated schools as candidates for playground renovation grants. Id., at 466. We confronted a different kind of aid program, and came to a different conclusion, in Locke. There, we reviewed a Washington law that offered taxpayer-funded scholarships to college students on the express condition that they not pur- sue degrees that were “ `devotional in nature or designed to induce religious belief.' ” 540 U. S., at 716; see id., at 719, n. 2 (quoting Wash. Const., Art. II, § 11). Again, the Court assumed that the Establishment Clause permitted the State to support students seeking such degrees. 540 U. S., at 719. But the Court concluded that the Free Exercise Clause did not require it to do so. The Court observed that the State's decision not to fund devotional degrees did not penalize religious exercise or re- Page Proof Pending Publication 524 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting quire anyone to choose between their faith and a “govern- ment beneft.” Id., at 721. Rather, the State had “merely chosen not to fund a distinct category of instruction” that was “essentially religious.” Ibid. Although Washington's Constitution drew “a more stringent line than that drawn by the United States Constitution,” the Court found that the State's position was consistent with the widely shared view, dating to the founding of the Republic, that taxpayer- supported religious indoctrination poses a threat to individ- ual liberty. Id., at 722. Given this “historic and substantial state interest,” the Court concluded, it would be inappropri- ate to subject Washington's law to a “presumption of uncon- stitutionality.” Id., at 725. And, without such a presump- tion, the claim that the exclusion of devotional studies violated the Free Exercise Clause “must fail,” for “[i]f any room exists between the two Religion Clauses, it must be here.” Ibid.; see id., at 720, n. 3. C The majority fnds that the school-playground case, Trin- ity Lutheran, and not the religious-studies case, Locke, con- trols here. I disagree. In my view, the program at issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found uncon- stitutional in Trinity Lutheran. Like the State of Washing- ton in Locke, Montana has chosen not to fund (at a distance) “an essentially religious endeavor”—an education designed to “ `induce religious faith.' ” Locke, 540 U. S., at 716, 721. That kind of program simply cannot be likened to Missouri's decision to exclude a church school from applying for a grant to resurface its playground. The Court in Locke recognized that the study of devotional theology can be “akin to a religious calling as well as an academic pursuit.” Id. , at 721. Indeed, “the shaping, through primary education, of the next generation's minds and spirits” may be as critical as training for the ministry, Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 525 Breyer, J., dissenting which itself, after all, is but one of the activities necessary to help ensure a religion's survival. Zelman v. Simmons- Harris, 536 U. S. 639, 725 (2002) (Breyer , J., dissenting). That is why many faith leaders emphasize the central role of schools in their religious missions. See, e. g., Southern Baptist Convention, Resolution on the Importance of Christ- Centered Education (2014) (underscoring the power of Chris- tian schools to “win students to salvation through evange- lism, make disciples, and foster spiritual development”); The Holy See, John Paul II, Catechesi Tradendae ¶69 (Oct. 16, 1979) (explaining that “the underlying reason for” the Catho- lic school “is precisely the quality of the religious instruction integrated into the education of the pupils”). It is why at least some teachers at religious schools see their work as a form of ministry. See, e. g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 192 (2012). And petitioners have testifed that it is a “major rea- son” why they chose religious schools for their children. App. to Pet. for Cert. 152 (the school teaches “the same Christian values that I teach at home”). Nothing in the Constitution discourages this type of in- struction. To the contrary, the Free Exercise Clause draws upon a history that places great value upon the freedom of parents to teach their children the tenets of their faith. Cf. Wisconsin v. Yoder, 406 U. S. 205, 213–214 (1972). The lead- ing fgures of America's Enlightenment followed in the foot- steps of those who, after the English civil wars, came to be- lieve “with a passionate conviction that they were entitled to worship God in their own way and to teach their children and to form their characters in the way that seemed to them calculated to impress the stamp of the God-fearing man.” C. Radcliffe, The Law & Its Compass 71 (1960). But the bitter lesson of religious confict also inspired the Establish- ment Clause and the state-law bans on compelled support the Court cited in Locke. Cf., e. g., J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in 526 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting Everson v. Board of Ed. of Ewing , 330 U. S. 1, 69 (1947) (appendix to dissent of Rutledge, J.) (recalling the “[t]orrents of blood” shed in efforts to establish state religion). What, then, is the difference between Locke and the pres- ent case? And what is it that leads the majority to conclude that funding the study of religion is more like paying to fx up a playground (Trinity Lutheran) than paying for a degree in theology (Locke)? The majority's principal argument ap- pears to be that, as in Trinity Lutheran, Montana has ex- cluded religious schools from its program “solely because of the religious character of the schools.” Ante, at 476. The majority seeks to contrast this status-based discrimination with the program at issue in Locke, which it says denied scholarships to divinity students based on the religious use to which they put the funds—i. e., training for the ministry, as opposed to secular professions. See ante, at 478 (citing Trinity Lutheran, 582 U. S., at 461–462). It is true that Montana's no-aid provision broadly bars state aid to schools based on their religious affliation. But this case does not involve a claim of status-based discrimina- tion. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here pur- ports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “ `propos[e] to do — use the funds to' ” obtain a religious education. Ante, at 479 (quoting Trinity Lutheran, 582 U. S., at 464). Even if the schools' status were relevant, I do not see what bearing the majority's distinction could have here. There is no dispute that religious schools seek generally to inspire religious faith and values in their students. How else could petitioners claim that barring them from using state aid to attend these schools violates their free exercise rights? Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 527 Breyer, J., dissenting Thus, the question in this case—unlike in Trinity Lu- theran—boils down to what the schools would do with state support. And the upshot is that here, as in Locke, we con- front a State's decision not to fund the inculcation of reli- gious truths. The majority next contends that there is no “ `historic and substantial' tradition against aiding” religious schools “com- parable to the tradition against state-supported clergy in- voked by Locke.” Ante, at 483. But the majority ignores the reasons for the founding era bans that we relied upon in Locke. “Perhaps the most famous example,” Locke, 540 U. S., at 722, n. 6, is the 1786 defeat of a Virginia bill (often called the Assessment Bill) that would have levied a tax in support of “learned teachers” of “the Christian Religion.” A Bill Establishing a Provision for Teachers of the Christian Reli- gion, reprinted in Everson, 330 U. S., at 72 (supplemental appendix to dissent of Rutledge, J.). In his Memorial and Remonstrance against that proposal, James Madison argued that compelling state sponsorship of religion in this way was “a signal of persecution” that “degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” Id., at 68–69. Even among those who might beneft from such a tax, Madison warned, the bill threatened to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.” Id., at 69. The opposition galvanized by Madison's Remonstrance not only scuttled the Assessment Bill; it spurred Virginia's As- sembly to enact a very different law, the Bill for Religious Liberty drafted by Thomas Jefferson. See Brant, Madison: On the Separation of Church and State, 8 Wm. & Mary Q. 3, 11 (1951); Drakeman, Religion and the Republic: James Mad- ison and the First Amendment, 25 J. Church & St. 427, 436 (1983); Everson, 330 U. S., at 12. Page Proof Pending Publication 528 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting Like the Remonstrance, Jefferson's bill emphasized the risk to religious liberty that state-supported religious indoc- trination threatened. “[T]o compel a man to furnish contri- butions of money for the propagation of opinions which he disbelieves,” the preamble declared, “is sinful and tyranni- cal.” A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson 545 (J. Boyd ed. 1950). The statute accordingly provided “that no man shall be com- pelled to frequent or support any religious worship, place, or ministry whatsoever.” Id., at 546. Similar proscriptions were included in the early constitutions of many States. See Locke, 540 U. S., at 723 (collecting examples). I see no meaningful difference between the concerns that Madison and Jefferson raised and the concerns inevitably raised by taxpayer support for scholarships to religious schools. In both instances state funds are sought for those who would “instruc[t] such citizens, as from their circum- stances and want of education, cannot otherwise attain such knowledge” in the tenets of religious faith. A Bill Estab- lishing a Provision for Teachers of the Christian Religion, reprinted in Everson, 330 U. S., at 72. In both cases, that would compel taxpayers to support “the propagation of opin- ions” on matters of religion with which they may disagree, by teachers whom they have not chosen. A Bill for Estab- lishing Religious Freedom, supra, at 545. And, in both cases, the allocation of state aid to such purposes threatens to “destroy that moderation and harmony which the forbear- ance of our laws to intermeddle with Religion, has produced amongst its several sects.” Memorial and Remonstrance, reprinted in Everson, 330 U. S., at 69. The majority argues that at least some early American governments saw no contradiction between bans on com- pelled support for clergy and taxpayer support for religious schools or universities. See ante, at 481, n. 3. That some States appear not to have read their prohibitions on com- pelled support to bar this kind of sponsorship, however, does Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 529 Breyer, J., dissenting not require us to blind ourselves to the obvious contradiction between the reasons for prohibiting compelled support and the effect of taxpayer funding for religious education. Mad- ison and Jefferson saw it clearly. They opposed including theological professorships in their plans for the public Uni- versity of Virginia and the Commonwealth hesitated even to grant charters to religiously affliated schools. See Buckley, After Disestablishment: Thomas Jefferson's Wall of Separa- tion in Antebellum Virginia, 61 J. So. Hist. 445, 453 (1995); Brant, supra, at 19–20. As for the majority's examples, it suffces to say that the record is not so simple. In Georgia, the Governor advocated for school funding legislation in terms that mirrored the lan- guage of Virginia's Assessment Bill. See R. Gabel, Public Funds for Church and Private Schools 241–242 (1937). And the general levies the majority cites from Pennsylvania and New Jersey were not adopted until after the founding. See id., at 215–216; see C. Kaestle, Pillars of the Republic: Com- mon Schools and American Society, 1780–1860, pp. 166–167 (1983). That is not to deny that the history of state support for denominational schools is “ `complex.' ” Ante, at 483. But founding era attitudes toward compelled support of clergy were no less complex. Many prominent members of the founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia's Assessment Bill. See Dreisbach, George Mason's Pursuit of Religious Liberty in Revolutionary Virginia, 108 Va. Mag. Hist. & Bi- ography 5, 31 (2000). Some who supported this kind of gov- ernment aid thought it posed no threat to freedom of con- science; others denied that provisions for aid to religion amounted to an “establishment” at all. See id., at 34–35; D. Drakeman, Church, State, and Original Intent 224–225 (2010). Indeed, at least one historian has persuasively ar- gued that it is next to impossible to attribute to the Founders any uniform understanding as to what constitutes, in the Page Proof Pending Publication 530 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting Constitution's phrase, “an establishment of religion.” Id., at 216–229, 260–262. This diversity of opinion made no difference in Locke and it makes no difference here. For our purposes it is enough to say that, among those who gave shape to the young Re- public were people, including Madison and Jefferson, who perceived a grave threat to individual liberty and communal harmony in tax support for the teaching of religious truths. These “historic and substantial” concerns have consistently guided the Court's application of the Religion Clauses since. Locke, 540 U. S., at 725; see, e. g., Nyquist, 413 U. S., at 794– 798; Walz, 397 U. S., at 695 (Harlan, J., concurring); Schempp, 374 U. S., at 307 (Goldberg, J., joined by Harlan, J., concur- ring). The Court's special attention to these views should come as no surprise, for the risks the Founders saw have only become more apparent over time. In the years since the Civil War, the number of religions practiced in our coun- try has grown to scores. And that has made it more diffcult to avoid suspicions of favoritism—or worse—when govern- ment becomes entangled with religion. Nor can I see how it could make a difference that the Es- tablishment Clause might permit the State to subsidize reli- gious education through a program like Montana's. The tax beneft here inures to donors, who choose to support a partic- ular scholarship organization. That organization, in turn, awards scholarships to students for the qualifying school of their choice. The majority points to cases in which we have upheld programs where, as here, state funds make their way to religious schools by means of private choices. Ante, at 474 (citing Zelman, 536 U. S., at 649–653). As the Court acknowledged in Trinity Lutheran, however, that does not answer the question whether providing such aid is required. 582 U. S., at 458. Neither does it address related concerns that I have pre- viously described. Private choice cannot help the taxpayer who does not want to fnance the propagation of religious Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 531 Breyer, J., dissenting beliefs, whether his own or someone else's. It will not help religious minorities too few in number to support a school that teaches their beliefs. And it will not satisfy those whose religious beliefs preclude them from participating in a government-sponsored program. Some or many of the persons who ft these descriptions may well feel ignored—or worse—when public funds are channeled to religious schools. See Zelman, 536 U. S., at 728 (Breyer , J., dissenting). These feelings may, in turn, sow religiously inspired political confict and division—a risk that is considerably greater where States are required to include religious schools in pro- grams like the one before us here. And it is greater still where, as here, those programs beneft only a handful of a State's many religious denominations. See ibid.; Big Sky Scholarships, Schools (2019), www.bigskyscholarships.org / schools. Indeed, the records of Montana's constitutional convention show that these concerns were among the reasons that a reli- giously diverse group of delegates, including faith leaders of different denominations, supported the no-aid provision. See Brief for Respondents 18–23; Brief for Montana Consti- tutional Convention Delegates as Amici Curiae 19–21, 22, 24–25 (noting support for the provision from a Congregation- alist minister, the Roman Catholic priest responsible for Catholic schools in the Diocese of Great Falls, a Methodist pastor, a Presbyterian minister, and the Montana Catholic Conference, among others). In an effort to downplay this risk and further distinguish this case from Locke, the majority contends that “Montana's Constitution does not zero in on any particular `essentially religious' course of instruction.” Ante, at 480 (quoting Locke, 540 U. S., at 721). But this is not a facial challenge to the no- aid provision. See Reply Brief 8. As applied, the provision affects only a scholarship program that, in effect, uses tax- payer funds to help pay for student tuition at religious schools. We have long recognized that unrestricted cash 532 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting payments of this kind raise special establishment concerns. Cf. Mitchell v. Helms, 530 U. S. 793, 818–819 (2000) (plurality opinion); see id., at 848–849 (O'Connor, J., concurring in judg- ment). And for good reason: The subsidy petitioners de- mand would go to pay for, among other things, the salaries of teachers and administrators who have been found in at least some instances to so “personify [the] beliefs” of the churches that employ them that they are quite literally “ministers” within the meaning of the First Amendment. Hosanna-Tabor, 565 U. S., at 188. 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. II In reaching its conclusion that the Free Exercise Clause requires Montana to allow petitioners to use taxpayer- supported scholarships to pay for their children's religious education, the majority makes several doctrinal innovations that, in my view, are misguided and threaten adverse consequences. Although the majority refers in passing to the “play in the joints” between that which the Establishment Clause forbids and that which the Free Exercise Clause requires, its holding leaves that doctrine a shadow of its former self. See, e. g., Cutter, 544 U. S., at 719; Walz, 397 U. S., at 669. Having concluded that there is no obstacle to subsidizing a religious education under our Establishment Clause precedents, the majority says little more about Montana's antiestablishment interests or the reasoning that underlies them. It does not engage with the State's concern that its funds not be used to support religious teaching. Instead, the Court holds that it need not consider how Montana's funds would be used be- cause, in its view, all distinctions on the basis of religion— whether in respect to playground grants or devotional teach- Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 533 Breyer, J., dissenting ing—are similarly and presumptively unconstitutional. See ante, at 476–477. Setting aside the problems with the majority's character- ization of this case, supra, at 526, I think the majority is wrong to replace the fexible, context-specifc approach of our precedents with a test of “strict” or “rigorous” scrutiny. And it is wrong to imply that courts should use that same heightened scrutiny whenever a government beneft is at issue. See ante, at 476, 478. Experience has taught us that “we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication.” Tilton v. Richardson, 403 U. S. 672, 678 (1971) (plurality opinion); see also Schempp, 374 U. S., at 306 (opinion of Goldberg, J., joined by Harlan, J.) (there is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible”); Walz, 397 U. S., at 669 (“[R]igidity could well defeat the basic purpose of these pro- visions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited”). If the Court has found it possible to walk what we have called the “ `tight rope' ” between the two Religion Clauses, it is only by “preserving doctrinal fexibility and recognizing the need for a sensible and realistic application” of those provisions. Yoder, 406 U. S., at 221. The Court proceeded in just this way in Locke. It consid- ered the same precedents the majority today cites in support of its presumption of unconstitutionality. But it found that applying the presumption set forth in those cases to Wash- ington's decision not to fund devotional degrees would “extend” them “well beyond not only their facts but their reasoning.” 540 U. S., at 720. In my view, that analysis ap- plies equally to this case. Montana's law does not punish religious exercise. Cf. Locke, 540 U. S., at 720 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 535 (1993)); see ante, Page Proof Pending Publication 534 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting at 478. It does not deny anyone, because of their faith, the right to participate in political affairs of the community. Cf. Locke, 540 U. S., at 720–721 (citing McDaniel v. Paty, 435 U. S. 618, 626 (1978)); see ante, at 478. And it does not re- quire students to choose between their religious beliefs and receiving secular government aid such as unemployment benefts. Cf. Locke, 540 U. S., at 720 (citing Sherbert v. Verner, 374 U. S. 398, 403–404 (1963)); see ante, at 478. The State has simply chosen not to fund programs that, in sig- nifcant part, typically involve the teaching and practice of religious devotion. And “a legislature's decision not to sub- sidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983); see also Lyng v. Automobile Workers, 485 U. S. 360, 368 (1988). I disagree, then, with what I see as the majority's doc- trinal omission, its misplaced application of a legal presump- tion, and its suggestion that this presumption is appropriate in many, if not all, cases involving government benefts. As I see the matter, our differences run deeper than a simple disagreement about the application of prior case law. The Court's reliance in our prior cases on the notion of “play in the joints,” our hesitation to apply presumptions of unconstitutionality, and our tendency to confne beneft- related holdings to the context in which they arose all refect a recognition that great care is needed if we are to realize the Religion Clauses' basic purpose “to promote and assure the fullest scope of religious liberty and religious tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.” Schempp, 374 U. S., at 305 (opinion of Goldberg, J., joined by Harlan, J.); see Van Orden v. Perry, 545 U. S. 677, 698 (2005) (Breyer , J., concurring in judgment). For one thing, government benefts come in many shapes and sizes. The appropriate way to approach a State's beneft- Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 535 Breyer, J., dissenting related decision may well vary depending upon the relation between the Religion Clauses and the specifc beneft and restriction at issue. For another, disagreements that con- cern religion and its relation to a particular beneft may prove unusually diffcult to resolve. They may involve small but important details of a particular beneft program. Does one detail affect one religion negatively and another posi- tively? What about a religion that objects to the particular way in which the government seeks to enforce mandatory (say, qualifcation-related) provisions of a particular beneft program? See, e. g., New Life Baptist Church Academy v. East Longmeadow, 885 F. 2d 940 (CA1 1989) (Breyer , J., for the court). Or the religious group that for religious reasons cannot accept government support? See Brief for Respond- ents 20–21 (noting, inter alia, Seventh-day Adventists' sup- port for Montana's no-aid provision on this ground). And what happens when qualifcation requirements mean that government money fows to one religion rather than an- other? Courts are ill equipped to deal with such conficts. Yet, in a Nation with scores of different religions, many such disagreements are possible. And I have only scratched the surface. The majority claims that giving weight to these considera- tions would be a departure from our precedent and give courts too much discretion to interpret the Religion Clauses. See ante, at 483–484. But we have long understood that the “application” of the First Amendment's mandate of neutral- ity “requires interpretation of a delicate sort.” Schempp, 374 U. S., at 226. “Each value judgment under the Religion Clauses,” we have explained, must “turn on whether particu- lar acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so.” Walz, 397 U. S., at 669. Nor does the majority's approach avoid judicial entangle- ment in diffcult and sensitive questions. To the contrary, as I have just explained, it burdens courts with the still more 536 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting complex task of untangling disputes between religious orga- nizations and state governments, instead of giving deference to state legislators' choices to avoid such issues altogether. At the same time, it puts States in a legislative dilemma, caught between the demands of the Free Exercise and Es- tablishment Clauses, without “breathing room” to help ame- liorate the problem. I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it par- ticularly diffcult to design a test that vindicates the Clauses' competing interests in all—or even most—cases. That is why, far from embracing mechanical formulas, our prece- dents repeatedly and frankly acknowledge the need for pre- cisely the kind of “ `judgment-by-judgment analysis' ” the majority rejects. Ante, at 484; see, e. g., Walz, 397 U. S., at 669. “The standards” of our prior decisions, we have said, “should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired.” Tilton, 403 U. S., at 678 (plurality opinion); accord, Nyquist, 413 U. S., at 773, n. 31. The Court's occasional efforts to declare rules in spite of this experience have failed to produce either coherence or consensus in our First Amendment jurisprudence. See Van Orden, 545 U. S., at 697 (opinion of Breyer, J.) (listing exam- ples). The persistence of such disagreements bears out what I have said—namely, that rigid, bright-line rules like the one the Court adopts today too often work against the underlying purposes of the Religion Clauses. And a test that fails to advance the Clauses' purposes is, in my view, far worse than no test at all. Consider some of the practical problems that may arise from the Court's holding. The States have taken advantage of the “play in the joints” between the Religion Clauses to craft programs of public aid to education that address their Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 537 Breyer, J., dissenting local needs. Many provide assistance to families with stu- dents in nonpublic schools, ranging from scholarships to tax credits and deductions that reimburse tuition expenses. See Dept. of Ed., A. Duncan et al., Education Options in the States 3–6 (2009). Although most state constitutions today have no-aid provisions like Montana's, those provisions are only one part of a broader system of local regulation. See App. D to Brief for Respondents. Some States have con- cluded that their no-aid provisions do not bar scholarships to students at religious schools, while others without such clauses have nevertheless chosen not to fund religious educa- tion. See Brief for State of Colorado et al. as Amici Curiae 6–7; Brief for State of Maine as Amicus Curiae 10–15. To- day's decision upends those arrangements without stopping to ask whether they might actually further the objectives of the Religion Clauses in some or even many cases. And what are the limits of the Court's holding? The ma- jority asserts that States “need not subsidize private educa- tion.” Ante, at 487. But it does not explain why that is so. If making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith im- pels them to enroll their children in religious schools, then how is a State's decision to fund only secular public schools any less coercive? Under the majority's reasoning, the par- ents in both cases are put to a choice between their beliefs and a taxpayer-sponsored education. Accepting the majority's distinction between public and nonpublic schools does little to address the uncertainty that its holding introduces. What about charter schools? States vary widely in how they permit charter schools to be structured, funded, and controlled. See Mead, Devilish Details: Exploring Features of Charter School Statutes That Blur the Public/Private Distinction, 40 Harv. J. Legis. 349, 353–357, 367–368 (2003). How would the majority's rule dis- tinguish between those States in which support for charter schools is akin to public school funding and those in which it 538 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting triggers a constitutional obligation to fund private religious schools? The majority's rule provides no guidance, even as it sharply limits the ability of courts and legislatures to bal- ance the potentially competing interests that underlie the Free Exercise and Antiestablishment Clauses. * * * It is not easy to discern “the boundaries of the neutral area between” the two Religion Clauses “within which the legislature may legitimately act.” Tilton, 403 U. S., at 677 (plurality opinion). And it is more diffcult still in cases, such as this one, where the Constitution's policy in favor of free exercise, on one hand, and against state sponsorship, on the other, are in confict. In such cases, I believe there is “no test-related substitute for the exercise of legal judg- ment.” Van Orden, 545 U. S., at 700 (opinion of Breyer, J.). That judgment “must refect and remain faithful to the un- derlying purposes of the Clauses, and it must take account of context and consequences measured in light of those pur- poses.” Ibid. Here, those purposes, along with the exam- ples set by our decisions in Locke and Trinity Lutheran, lead me to believe that Montana's differential treatment of religious schools is constitutional. “If any room exists be- tween the two Religion Clauses, it must be here.” Locke, 540 U. S., at 725. For these reasons, I respectfully dissent from the Court's contrary conclusion. Justice Sotomayor, dissenting. The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by exclud- ing them from a tax beneft. The threshold problem, how- ever, is that such tax benefts no longer exist for anyone in the State. The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the as- applied challenge petitioners raise here. Indeed, nothing required the state court to uphold the program or the state Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 539 Sotomayor, J., dissenting legislature to maintain it. The Court nevertheless reframes the case and appears to ask whether a longstanding Montana constitutional provision is facially invalid under the Free Ex- ercise Clause, even though petitioners disavowed bringing such a claim. But by resolving a constitutional question not presented, the Court fails to heed Article III principles older than the Religion Clause it expounds. Coleman v. Thomp- son, 501 U. S. 722, 730 (1991) (forbidding “resolution of a fed- eral question” that “cannot affect” a state-court judgment). Not only is the Court wrong to decide this case at all, it decides it wrongly. In Trinity Lutheran Church of Colum- bia, Inc. v. Comer, 582 U. S. 449 (2017), this Court held, “for the frst time, that the Constitution requires the government to provide public funds directly to a church.” Id., at 472 (Sotomayor, J., dissenting). Here, the Court invokes that precedent to require a State to subsidize religious schools if it enacts an education tax credit. Because this decision fur- ther “slights both our precedents and our history” and “weakens this country's longstanding commitment to a sepa- ration of church and state benefcial to both,” ibid., I respect- fully dissent. I A The Montana Supreme Court invalidated a state tax-credit program because it was inconsistent with the Montana Con- stitution's “no-aid provision,” Art. X, § 6(1), which forbids government appropriations for sectarian purposes, including funding religious schools. 393 Mont. 446, 467–468, 435 P. 3d 603, 614 (2018). In so doing, the court expressly declined to resolve federal constitutional issues. “Having concluded the Tax Credit Program violates” the no-aid provision, the court held, “it is not necessary to consider federal precedent inter- preting the First Amendment's less-restrictive Establish- ment Clause.” Ibid. So too the court declined to ground its holding on the Free Exercise Clause. Ibid. The court Page Proof Pending Publication 540 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting also remedied the only potential harm of discriminatory treatment by striking down the program altogether. After the state court's decision, neither secular nor sectarian schools receive the program's tax benefts. Petitioners' free exercise claim is not cognizable. The Free Exercise Clause, the Court has said, protects against “indirect coercion or penalties on the free exercise of reli- gion.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450 (1988). Accordingly, this Court's cases have required not only differential treatment, cf. ante, at 477–478, but also a resulting burden on religious exercise, Lyng, 485 U. S., at 450–451. Neither differential treatment nor coercion exists here be- cause the Montana Supreme Court invalidated the tax-credit program entirely. 393 Mont., at 467–468, 435 P. 3d, at 614. Because no secondary school (secular or sectarian) is eligible for benefts, the state court's ruling neither treats petitioners differently based on religion nor burdens their religious ex- ercise. See ante, at 516–520 (Ginsburg , J., dissenting). Petitioners remain free to send their children to the religious school of their choosing and to exercise their faith. To be sure, petitioners 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 beneft religious exercise. “The crucial word in the consti- tutional text is `prohibit': `For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.' ” Lyng, 485 U. S., at 451 (quoting Sherbert v. Verner, 374 U. S. 398, 412 (1963) (Douglas, J., concurring)). Put another way, the Constitution does not compel Montana to create or maintain a tax subsidy. Notably, petitioners did not allege that the no-aid provi- sion itself caused their harm or that invalidating the entire tax-credit scheme would create independent constitutional Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 541 Sotomayor, J., dissenting concerns. Even now, petitioners disclaim a facial challenge to the no-aid provision. Reply Brief 8, 20–22. Petitioners thus have no cognizable as-applied claim arising from the disparate treatment of religion, because there is no longer a program to which Montana's no-aid provision can apply. Nor is it enough that petitioners might wish that Mon- tana's no-aid provision were no longer good law. Petitioners identify no disparate treatment traceable to the state consti- tutional provision that they challenge because the tax-credit program no longer operates. See Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41–42, 44–46 (1976). 1 Short of ordering Montana to create a religious subsidy that Montana law does not permit, there is nothing for this Court to do. 2 1 To revive their as-applied challenge, petitioners rely on Griffn v. School Bd. of Prince Edward Cty., 377 U. S. 218 (1964), for the proposition that eliminating a public beneft does not always remedy discrimination. See Reply Brief 5. But Griffn is inapposite. There, a Virginia county closed its public schools and so-called “private schools” were set up in their place to avoid a court desegregation order. See 377 U. S., at 223. These so-called private schools “were open to whites only and . . . were in fact run by a practical partnership between State and county, designed to pre- serve segregated education.” Palmer v. Thompson, 403 U. S. 217, 221– 222 (1971). That is nothing like what the Montana Supreme Court's remedy achieved here. Nor have petitioners said otherwise; there is no allegation that Montana confers clandestine tax credits solely to secular schools. 2 Petitioners here have not asserted a free exercise claim on a theory that they were victims of religious animus, either. Cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993). Instead, one con- currence seeks to make the argument for them while attempting to com- pare the state constitutional provision here with a nonunanimous jury rule rooted in racial animus. Ante, at 497 (opinion of Alito, J.) (citing the dissent in Ramos v. Louisiana, 590 U. S. ––– (2020)). But those questions are not before the Court. In any case, the concurrence's arguments are as misguided as they are misplaced. Citing the Court's opinion in Ramos, the concurrence maintains that a law's “ `uncomfortable past' must still be `[e]xamined.' ” Ante, at 505–506 (opinion of Alito, J.). But as previously explained: “Where a law 542 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting B As another dissenting opinion observes, see ante, at 517 (opinion of Ginsburg, J.), the Court sidesteps these obsta- cles by asking a question that this case does not raise and that the Montana Supreme Court did not answer: whether by excluding “religious schools and affected families from [a scholarship] program,” Montana's no-aid provision was “con- sistent with the Federal Constitution,” ante, at 474 (majority opinion). In so doing, the Court appears to transform peti- tioners' as-applied challenge into a facial one. Ante, at 477; see also ante, at 489 (Thomas, J., concurring). This approach lacks support in our case law. The Court typically declines to read state-court decisions as impliedly resolving federal questions, especially ones not raised by the parties. See, e. g., Adams v. Robertson, 520 U. S. 83, 88–89 (1997) (per curiam ). Indeed, to honor principles of comity, this Court generally dismisses writs of certiorari from a State's highest court where, as is true here of the Court's otherwise is untethered to [discriminatory] bias—and perhaps also where a legislature actually confronts a law's tawdry past in reenacting it—the new law may well be free of discriminatory taint.” Ramos, 590 U. S., at ––– (Sotomayor, J., concurring in part). That could not “be said of the laws at issue” in Ramos. Ibid. It can be here. See Part II, infra. The concurrence overlooks the starkly different histories of these state laws. Also missing from the concurrence (and the amicus briefs it re- peats) is the stubborn fact that the constitutional provision at issue here was adopted in 1972 at a convention where it was met with overwhelming support by religious leaders (Catholic and non-Catholic), even those who examined the history of prior no-aid provisions. See Brief for Respond- ents 16–27; 6 Montana Constitutional Convention 1971–1972 Proceedings and Transcript, pp. 2012–2013, 2016–2017 (Mont. Legislature and Legisla- tive Council); see also ante, at 531 (Breyer, J., dissenting); Brief for Public Funds Public Schools as Amicus Curiae 5–11; Brief for Montana Constitutional Convention Delegates as Amici Curiae 19–25. These sup- porters argued that it would be wrong to put taxpayer dollars to religious purposes and that it would invite unwelcome entanglement between church and state. See, e. g., U. S. Const., Amdt. 1; Brief for Respon- dents 20. Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 543 Sotomayor, J., dissenting bespoke inquiry, “the sole federal question” the Court seeks to decide was not “raised, preserved, or passed upon in the state courts below.” Cardinale v. Louisiana, 394 U. S. 437, 438 (1969); see also Webb v. Webb, 451 U. S. 493, 499 (1981). That rule respects not only federalism but also the sepa- ration of powers. Article III confnes this Court's authority to adjudicating actual “[c]ases” or “[c]ontroversies.” See also Allen v. Wright, 468 U. S. 737, 750 (1984) (case-or-contro- versy requirement refects “the idea of separation of powers on which the Federal Government is founded”). Federal courts thus lack power “to decide questions that cannot af- fect the rights of litigants in the case before them” and may resolve only “real and substantial controvers[ies] admitting of specifc relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Lewis v. Con- tinental Bank Corp., 494 U. S. 472, 477 (1990) (alteration in original; internal quotation marks omitted). Consonant with that limitation, the Court has declined to “ ` “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” ' ” Washington State Grange v. Washington State Republican Party , 552 U. S. 442, 450 (2008) (quoting Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)). By answering an apparent hypothetical question, today's Court subverts these longstanding practices. True, on occasion this Court has resolved federal constitu- tional questions when it was unclear whether the state-court judgment rested on an adequate and independent state-law ground. See, e. g., Michigan v. Long, 463 U. S. 1032, 1043 (1983). But that is not this case. Recall that the Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue. See 393 Mont., at 467–468, 435 P. 3d, at 614; see also ante, at 518–519 (Ginsburg, J., dissenting). Page Proof Pending Publication 544 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting These principles exist to prevent this Court from issuing advisory opinions, sowing confusion, and muddying the law. This is case in point. Having held that petitioners may not be “exclu[ded] from the scholarship program” that no longer exists, the Court remands to the Montana Supreme Court for “further proceedings not inconsistent with this opinion.” Ante, at 489. But it is hard to tell what this Court wishes the state court to do. There is no program from which peti- tioners are currently “exclu[ded],” so must the Montana Su- preme Court order the State to recreate one? Has this Court just announced its authority to require a state court to order a state legislature to fund religious exercise, over- ruling centuries of contrary precedent and historical prac- tice? See Cutter v. Wilkinson, 544 U. S. 709 (2005); Locke v. Davey, 540 U. S. 712 (2004); see also Trinity Lutheran, 582 U. S., at 482–489, and nn. 7–11 (Sotomayor, J., dissenting) (describing States' religious disestablishment movements near the founding and cataloging state constitutional provi- sions declining to aid religious ministry). Indeed, it appears that the Court has declared that once Montana created a tax subsidy, it forfeited the right to eliminate it if doing so would harm religion. This is a remarkable result, all the more so because the Court strains to reach it. The Court views its decision as “simply restor[ing] the sta- tus quo established by the Montana Legislature.” Ante at 488, n. 4. But it overlooks how that status quo allowed the State Supreme Court to cure any disparate treatment of religion while still giving effect to a state constitutional provision ratifed by the citizens of Montana. Today's deci- sion replaces a remedy chosen by representatives of Montan- ans and designed to honor the will of the electorate with one that the Court prefers instead. In sum, the decision below neither upheld a program that “disqualif[ies] some private schools solely because they are religious,” ante, at 487, nor otherwise decided the case on fed- Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 545 Sotomayor, J., dissenting eral grounds. The Court's opinion thus turns on a counter- factual hypothetical it is powerless (and unwise) to decide. II Even on its own terms, the Court's answer to its hypothet- ical question is incorrect. The Court relies principally on Trinity Lutheran, which found that disqualifying an entity from a public beneft “solely because of [the entity's] religious character” could impose “a penalty on the free exercise of religion.” 582 U. S., at 462. Trinity Lutheran held that in- eligibility for a government beneft impermissibly burdened a church's religious exercise by “put[ting it] to the choice between being a church and receiving a government beneft.” Id., at 465. Invoking that precedent, the Court concludes that Montana must subsidize religious education if it also subsidizes nonreligious education. 3 The Court's analysis of Montana's defunct tax program re- prises the error in Trinity Lutheran. Contra the Court's current approach, our free exercise precedents had long granted the government “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.” Id., at 479 (Sotomayor, J., dissenting). Until Trinity Lutheran, the right to exercise one's religion did not include a right to have the State pay for that reli- gious practice. See School Dist. of Abington Township v. Schempp, 374 U. S. 203, 226 (1963). That is because a con- trary rule risks reading the Establishment Clause out of the Constitution. Although the Establishment Clause “per- mit[s] some government funding of secular functions per- 3 Petitioners' as-applied challenge fails under Trinity Lutheran for the reasons stated above: The Montana Supreme Court's remedy does not put petitioners to any “choice” at all. Rather, petitioners are free to send their children to any secondary school they wish while practicing their religious beliefs, and no one receives a tax credit for their school choice. Page Proof Pending Publication 546 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting formed by sectarian organizations,” the Court's decisions “provide[d] no precedent for the use of public funds to fnance religious activities.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 847 (1995) (O'Connor, J., concur- ring). After all, the government must avoid “an unlawful fostering of religion.” Cutter, 544 U. S., at 714 (internal quotation marks omitted). Thus, to determine the constitu- tionality of government action that draws lines based on reli- gion, our precedents “carefully considered whether the inter- ests embodied in the Religion Clauses justify that line.” Trinity Lutheran, 582 U. S., at 478 (Sotomayor, J., dissent- ing). The relevant question had always been not whether a State singles out religious entities but why it did so. Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids “historic and sub- stantial” antiestablishment concerns. Locke, 540 U. S., at 725. Properly understood, this case is no different from Locke because petitioners seek to procure what the plaintiffs in Locke could not: taxpayer funds to support religious schooling. 4 Indeed, one of the concurrences lauds petition- ers' spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like “teach[ing] reli- gion” so that petitioners may “outwardly and publicly” live out their religious tenets. Ante, at 510 (opinion of Gor- such, J.). But those deeply religious goals confrm why Mon- tana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter, 544 U. S., at 714, and the free exercise rights of taxpayers, “denying them the chance 4 Locke confrms that a facial challenge to no-aid provisions must fail. But cf. ante, at 479–480 (majority opinion). In Locke, this Court upheld the application of a materially similar no-aid provision in Washington State, concluding that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees. 540 U. S., at 721. Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 547 Sotomayor, J., dissenting to decide for themselves whether and how to fund religion,” Trinity Lutheran, 582 U. S., at 487 (Sotomayor, J ., dissent- ing). Previously, this Court recognized that a “prophylactic rule against the use of public funds” for “religious activities” appropriately balanced the Religion Clauses' differing but equally weighty interests. Ibid. The Court maintains that this case differs from Locke because no pertinent “ `historic and substantial' ” tradition supports Montana's decision. Ante, at 480. But the Court's historical analysis is incomplete at best. For one thing, the Court discounts anything beyond the 1850s as failing to “es- tablish an early American tradition,” ante, at 482, while itself relying on examples from around that time, ante, at 480– 481. For another, although the States may have had “rich diversity of experience” at the founding, “the story relevant here is one of consistency.” Trinity Lutheran, 582 U. S., at 481 (Sotomayor, J., dissenting); see also id., at 482–489 (chronicling state histories). The common thread was that “those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship.” Id., at 486. And as the Court's recent prece- dent holds, at least some teachers in religiously affliated schools are ministers who inculcate the faith. See Hosanna- Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 178, 196 (2012); see also ante, at 510 (Gorsuch, J., concurring); ante, at 525, 532 (Breyer , J., dissenting). The Court further suggests that by abstaining from fund- ing religious activity, the State is “ `suppress[ing]' ” and “penaliz[ing]” religious activity. Ante, at 485–486. But a State's decision not to fund religious activity does not “disfa- vor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.” Trinity Lutheran, 582 U. S., at 493 (Soto- mayor, J., dissenting). That is, a “legislature's decision not 548 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting to subsidize the exercise of a fundamental right does not in- fringe the right.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983). Finally, it is no answer to say that this case involves “dis- crimination.” Ante, at 477–478. A “decision to treat enti- ties differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.” Trinity Lutheran, 582 U. S., at 492 (Sotomayor, J., dissent- ing). So too here. * * * Today's ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the frst place. We once recognized that “[w]hile the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to prac- tice its beliefs.” Schempp, 374 U. S., at 226 (emphasis de- leted). Today's Court, by contrast, rejects the Religion Clauses' balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints. I respectfully dissent. Page Proof Pending Publication
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PRELIMINARY PRINT Volume 591 U. S. Part 2 Pages 464–548 OFFICIAL REPORTS OF THE SUPREME COURT June 30, 2020 Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court …
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free exercise of religion that triggers the most exacting scrutiny.” Id., at 462. Here, the application of Montana's no-aid provision excludes religious schools from public benefts solely because of religious status. As a result, strict scrutiny applies. Pp. 473–479. (b) Contrary to the Department's contention, th…
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interest does not justify a no-aid provision that requires only religious private schools to bear its weight. Pp. 484–487. (e) Because the Free Exercise Clause barred the application of the no-aid provision here, the Montana Supreme Court had no authority to invalidate the program on the basis of that provision. T…
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Assistant Attorney General, by Mark Brnovich, Attorney General of Ari- zona, O. H. Skinner, Solicitor General, and Andrew G. Pappas, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Les- lie Rutledge of Arkansas, …
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Hirsen, Deborah J. Dewart, and B. Tyler Brooks; for the Liberty Justice Center et al. by Brian K. Kelsey, Jeffrey M. Schwab, and Daniel R. Suhr; for the Mackinac Center for Public Policy by Patrick J. Wright; for Mon- tana Catholic School Parents et al. by Andrea Picciotti-Bayer; for the Montana Family Foundation …
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In 2015, the Montana Legislature sought “to provide pa- rental and student choice in education” by enacting a scholar- ship program for students attending private schools. 2015 Mont. Laws p. 2168, § 7. The program grants a tax credit of up to $150 to any taxpayer who donates to a participating “student scholarshi…
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that is, any private school that meets certain accreditation, testing, and safety requirements. See § 15–30–3102(7). Virtually every private school in Montana qualifes. Upon receiving a scholarship, the family designates its school of choice, and the scholarship organization sends the scholar- ship funds directly…
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was needed to reconcile the scholarship program with the no-aid provision of the Montana Constitution. The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the program, and if it did, it would “very likely”…
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90 applications and awarded 54 scholarships of $500 each. Several families, most with incomes of $30,000 or less, used the scholarships to send their children to Stillwater Christian. In December 2018, the Montana Supreme Court reversed the trial court. 393 Mont. 446, 435 P. 3d 603. The Court frst addressed the …
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Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 473 Opinion of the Court Several Justices wrote separately. All agreed that Rule 1 was invalid, but they expressed differing views on whether the scholarship program was consistent with the Montana and United States Cons…
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(noting the parties' agreement that the Establishment Clause was not violated by including churches in a play- ground resurfacing program). Any Establishment Clause objection to the scholarship program here is particularly un- availing because the government support makes its way to religious schools only as a re…
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Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefts of public welfare legislation”); Lyng v. Northwest In- dian Cemetery Protective Assn., 485 U. S. 439, 449 (1988) (the Free Exercise Clause protects against laws that “penal- ize relig…
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that is “sectarian,” “religiously affliated,” or “controlled in whole or in part by churches.” 393 Mont., at 464–467, 435 P. 3d, at 612–613. The provision plainly excludes schools from government aid solely because of religious status. See Trinity Lutheran, 582 U. S., at 462. The Department counters that Trinity …
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Mont., at 460, 466–467, 435 P. 3d, at 609, 613–614. The De- partment also contrasts what it characterizes as the “com- pletely non-religious” beneft of playground resurfacing in Trinity Lutheran with the unrestricted tuition aid at issue here. Tr. of Oral Arg. 31. General school aid, the Depart- ment stresses, co…
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scrutiny.” Id., at 463. None of this is meant to suggest that we agree with the Department, Brief for Respondents 36–40, that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. See Lukumi, 508 U. S., at 546 (striking down law designed to ban religious practice invol…
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because of what he proposed to do—use the funds to prepare for the ministry.” Trinity Lutheran, 582 U. S., at 464. Page Proof Pending Publication 480 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court Apart from that narrow restriction, Washington's program allowed scholarships to be used at “pervasively …
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of the poor. M. McConnell et al., Religion and the Consti- tution 318–319 (4th ed. 2016). Even States with bans on government-supported clergy, such as New Jersey, Pennsyl- vania, and Georgia, provided various forms of aid to religious schools. See Kaestle, supra, at 166–167; Gabel, supra, at 215–218, 241–245, 37…
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schools. If anything, excluding religious schools from such programs would appear to impose the “peculiar burdens” feared by Madison. Page Proof Pending Publication 482 ESPINOZA v. MONTANA DEPT. OF REVENUE Opinion of the Court The Department argues that a tradition against state sup- port for religious schools a…
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tioners 5. According to petitioners, 20 of 37 States with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs. Reply Brief 22, n. 9. All to say, we agree with the Department that the histori- cal record is “complex.” Brie…
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This rule against express religious discrimination is no “doc- trinal innovation.” Post, at 532 (opinion of Breyer, J.). Far from it. As Trinity Lutheran explained, the rule is “unre- markable in light of our prior decisions.” 582 U. S., at 462. For innovation, one must look to the dissents. Their “room[y]” or “f…
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23. An infringement of First Amendment rights, however, cannot be justifed by a State's alternative view that the in- fringement advances religious liberty. Our federal system prizes state experimentation, but not “state experimentation in the suppression of free speech,” and the same goes for the free exercise o…
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advances Montana's interests in public education. Accord- ing to the Department, the no-aid provision safeguards the public school system by ensuring that government support is not diverted to private schools. See Brief for Respond- ents 19, 25. But, under that framing, the no-aid provision is fatally underinclus…
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schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to in- validate the entire program. 393 Mont., at 466–468, 435 P. 3d, at 613–614. The fnal step in this line of reasoning eliminated the pro- gr…
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that “no longer exists.” Post, at 544 (dissenting opinion). But it was the Montana Supreme Court that eliminated the program, in the decision below, which remains under review. Our reversal of that decision simply restores the status quo established by the Montana Legislature before the Court's error of federal la…
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which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing , 330 U. S. 1, 15 (1947); see also post, at 521–522 (Breyer , J., dis- senting). This “equality principle,” the theory goes, prohib- its the government from expressing any preference for reli- gion—or…
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Thus, the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Es- tablishment Clause does not prohibit States from favoring religion. They can leg…
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said, in part because it furthered the State's “antiestablish- ment interests” in avoiding the education of religious minis- ters. Id., at 722. But no antiestablishment interests, prop- erly understood, were at issue in Locke. The State neither coerced students to study devotional theology nor con- scripted taxpa…
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that the Establishment Clause prohibits the government from favoring religion or taking steps to promote it. But as described supra, at 490–491, the Establishment Clause does nothing of the sort. The concern with avoiding endorse- ment has nevertheless been used to prohibit voluntary prac- tices that potentially …
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policing, which in turn has the effect of tilting society in favor of devaluing religion. Historical evidence suggests that many advocates for this separationist view were originally motivated by hostility to- ward certain disfavored religions. See P. Hamburger, Sepa- ration of Church and State 391–454 (2002). An…
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Although such hostility may not be overtly expressed by the Court any longer, manifestations of this “trendy disdain for deep religious conviction” assuredly live on. Locke, 540 U. S., at 733 (Scalia, J., dissenting). They are evident in the fact that, unlike other constitutional rights, the mere expo- sure to re…
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“simply by averting his eyes.” Hill v. Colorado, 530 U. S. 703, 753, n. 3 (2000) (Scalia, J., dissenting) (quoting Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975) (quotation altered)). Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 497 Alito, J., concurring …
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riae 2; Brief for State of Oklahoma et al. as Amici Curiae 16; Brief for Montana Catholic School Parents et al. as Amici Curiae 21–25; Brief for Senator Steve Daines et al. as Amici Curiae 1–27 (Sen. Daines Brief); Brief for Becket Fund for Religious Liberty as Amicus Curiae 4–20 (Becket Fund Brief); Brief for th…
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the Union. Thirty-eight States still have these “little Blaine Amendments” today. See App. D to Brief for Respondents. This history is well-known and has been recognized in opinions of this Court. See, e. g., Locke v. Davey, 540 U. S. 712, 723, n. 7 (2004); Mitchell, 530 U. S., at 828–829 (plurality opinion); se…
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this famous cartoon, published in Harper's Weekly in 1871, which depicts Catholic priests as crocodiles slithering hun- grily toward American children as a public school crumbles in the background: Page Proof Pending Publication The resulting wave of state laws withholding public aid from “sectarian” schools can…
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Page Proof Pending Publication 502 ESPINOZA v. MONTANA DEPT. OF REVENUE Alito, J., concurring Catholic votes.” 7 The amendment had its intended galva- nizing effect. “Its popularity was so great” that “even con- gressional Democrats,” who depended on Catholic votes, “were expected to support it,” and the congres…
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setts Board of Education from 1837 to 1848, the common- school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly diffcult, if not impossible.) Instead the aim was to establish a system that would inculcate a f…
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Massachusetts and elsewhere, Catholic students were beaten and expelled for refusing to read from the King James Bible. 12 In New York, a mob destroyed the residence of Bishop John Hughes, who had argued that, if the State was going to fund religious public education, it should also sup- port church schools. The…
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provision was cleansed of its bigoted past because it was re- adopted for non-bigoted reasons in Montana's 1972 constitu- tional convention. See post, at 541–542, n. 2 (opinion of So- tomayor, J.); see also Brief for Respondents 18; Tr. of Oral Arg. 22–23. They emphasize that the convention included Catholics, ju…
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predominantly affect. In 1970, according to the National Center for Educational Statistics, Montana had 61 religiously affliated schools. Forty-fve were Roman Catholic. 19 Not only did the convention delegates acknowledge the no-aid provision's original anti-Catholic intent, but the Montana Su- 18 6 Montana Cons…
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ues to have its originally intended effect. And even if Mon- tana had done more to address its no-aid provision's past, that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 States, by respond- ents' count, that have not readopted or amended them since around the turn …
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cially or had children with disabilities. Recipients were free to use the scholarships at the schools of their choice. Some families chose secular schools, others religious ones. Kendra Espinoza, the lead petitioner in this case, is a sin- gle mother who works three jobs. She planned to use schol- arships to help…
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#42
grave constitutional questions for the reasons the Court de- scribes. But I was not sure about characterizing the State's discrimination in Trinity Lutheran as focused only on reli- gious status, and I am even less sure about characterizing the State's discrimination here that way. See id., at 469 (Gorsuch, J., c…
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#43
outwardly and publicly. At the time of the First Amend- ment's adoption, the word “exercise” meant (much as it Page Proof Pending Publication Page Proof Pending Publication Cite as: 591 U. S. 464 (2020) 511 Gorsuch, J., concurring means today) some “[l]abour of the body,” a “[u]se,” as in the “actual applicatio…
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#44
State had barred the clergy from serving in the state legisla- ture or at the state constitutional convention. See id., at 620–622. Some have described the discrimination there as focused on religious “ `status.' ” Trinity Lutheran, 582 U. S., at 459 (quoting McDaniel, 435 U. S., at 627) (emphasis deleted). But n…
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#45
tank turrets consistent with the teachings of his faith. See id., at 709–712, 720. In terms that speak equally to our case, the Court explained that the government tests the Free Ex- ercise Clause whenever it “conditions receipt of an important beneft upon conduct proscribed by a religious faith, or . . . denies …
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#46
Catholics in Ireland: “ `As to freedom of conscience, I meddle with no man's conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted.' ” McDaniel, 435 U. S., at 631, n. 2 (opinion…
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#47
decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conficted with the State Constitution's no-aid provi- sion, which forbids government appropriations to religious schools. Mont. Const., Art. X, § 6(1). Parents who sought to use the program's sc…
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#48
sion fails when measured against Trinity Lutheran. I do not see how. Past decisions in this area have entailed dif- ferential treatment occasioning a burden on a plaintiff's reli- gious exercise. Lyng, 485 U. S., at 450–451; Trinity Lu- theran, 582 U. S., at 463. This case is missing that essential component. Rec…
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#49
case does not present: “[W]hether excluding religious schools and affected families from [the scholarship] program was con- sistent with the Federal Constitution.” Ante, at 474 (major- ity opinion). The Court goes on to hold that the Montana Supreme Court's application of the no-aid provision violates the Free Ex…
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#50
1 In its opinion, Montana's highest court stated without explanation that this case is not one in which application of the no-aid provision violates the Free Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614. When the court made that statement, it had already invalidated the entire schol- arship program. Ibid.…
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#51
ment put all private-school parents in the same boat—this Court had no occasion to address the matter. 2 On that sole 2 The Montana Supreme Court's decision leaves parents where they would be had the State never enacted a scholarship program. In that event, no one would argue that Montana was obliged to provide s…
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#52
In 2015, Montana's Legislature enacted a statute giving a $150 tax credit to any person who contributes at least that amount to an organization that provides scholarships for stu- dents who attend nonpublic schools. See Mont. Code Ann. § 15–30–3111 (2019). The overwhelming majority of these schools are religious.…
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#53
tutional neutrality in this area cannot be an absolutely straight line.” Walz, 397 U. S., at 669. Indeed, “rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” Ibid. That, in signifcant part, is why the …
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#54
direct coercion,' ” the Court explained, “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Id., at 462, 463. Finding that a State's “policy preference for skating as far as possible from religious estab- lishment concerns” could not satisfy that standard, the Court hel…
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#55
trols here. I disagree. In my view, the program at issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found uncon- stitutional in Trinity Lutheran. Like the State of Washing- ton in Locke, Montana has chosen not to fund (at a distance) “an essentially …
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#56
Wisconsin v. Yoder, 406 U. S. 205, 213–214 (1972). The lead- ing fgures of America's Enlightenment followed in the foot- steps of those who, after the English civil wars, came to be- lieve “with a passionate conviction that they were entitled to worship God in their own way and to teach their children and to form…
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#57
use the funds to' ” obtain a religious education. Ante, at 479 (quoting Trinity Lutheran, 582 U. S., at 464). Even if the schools' status were relevant, I do not see what bearing the majority's distinction could have here. There is no dispute that religious schools seek generally to inspire religious faith and va…
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#58
ison and the First Amendment, 25 J. Church & St. 427, 436 (1983); Everson, 330 U. S., at 12. Page Proof Pending Publication 528 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting Like the Remonstrance, Jefferson's bill emphasized the risk to religious liberty that state-supported religious indoc- trina…
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#59
between the reasons for prohibiting compelled support and the effect of taxpayer funding for religious education. Mad- ison and Jefferson saw it clearly. They opposed including theological professorships in their plans for the public Uni- versity of Virginia and the Commonwealth hesitated even to grant charters t…
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#60
harmony in tax support for the teaching of religious truths. These “historic and substantial” concerns have consistently guided the Court's application of the Religion Clauses since. Locke, 540 U. S., at 725; see, e. g., Nyquist, 413 U. S., at 794– 798; Walz, 397 U. S., at 695 (Harlan, J., concurring); Schempp, 3…
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#61
grams like the one before us here. And it is greater still where, as here, those programs beneft only a handful of a State's many religious denominations. See ibid.; Big Sky Scholarships, Schools (2019), www.bigskyscholarships.org / schools. Indeed, the records of Montana's constitutional convention show that th…
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#62
supported scholarships to pay for their children's religious education, the majority makes several doctrinal innovations that, in my view, are misguided and threaten adverse consequences. Although the majority refers in passing to the “play in the joints” between that which the Establishment Clause forbids and t…
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#63
for a sensible and realistic application” of those provisions. Yoder, 406 U. S., at 221. The Court proceeded in just this way in Locke. It consid- ered the same precedents the majority today cites in support of its presumption of unconstitutionality. But it found that applying the presumption set forth in those c…
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#64
the fullest scope of religious liberty and religious tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.” Schempp, 374 U. S., at 305 (opinion of Goldberg, J., joined by Harlan, J.); see Van Orden v. Perry, 545 U. S. 677, 698 (2005) (Breyer , J., concurring in judg…
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#65
Nor does the majority's approach avoid judicial entangle- ment in diffcult and sensitive questions. To the contrary, as I have just explained, it burdens courts with the still more 536 ESPINOZA v. MONTANA DEPT. OF REVENUE Breyer, J., dissenting complex task of untangling disputes between religious orga- nization…
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#66
local needs. Many provide assistance to families with stu- dents in nonpublic schools, ranging from scholarships to tax credits and deductions that reimburse tuition expenses. See Dept. of Ed., A. Duncan et al., Education Options in the States 3–6 (2009). Although most state constitutions today have no-aid provis…
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#67
Free Exercise and Antiestablishment Clauses. * * * It is not easy to discern “the boundaries of the neutral area between” the two Religion Clauses “within which the legislature may legitimately act.” Tilton, 403 U. S., at 677 (plurality opinion). And it is more diffcult still in cases, such as this one, where th…
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#68
bia, Inc. v. Comer, 582 U. S. 449 (2017), this Court held, “for the frst time, that the Constitution requires the government to provide public funds directly to a church.” Id., at 472 (Sotomayor, J., dissenting). Here, the Court invokes that precedent to require a State to subsidize religious schools if it enacts…
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#69
ercise. See ante, at 516–520 (Ginsburg , J., dissenting). Petitioners remain free to send their children to the religious school of their choosing and to exercise their faith. To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children's religious education. B…
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#70
so-called private schools “were open to whites only and . . . were in fact run by a practical partnership between State and county, designed to pre- serve segregated education.” Palmer v. Thompson, 403 U. S. 217, 221– 222 (1971). That is nothing like what the Montana Supreme Court's remedy achieved here. Nor have …
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#71
a legislature actually confronts a law's tawdry past in reenacting it—the new law may well be free of discriminatory taint.” Ramos, 590 U. S., at ––– (Sotomayor, J., concurring in part). That could not “be said of the laws at issue” in Ramos. Ibid. It can be here. See Part II, infra. The concurrence overlooks the …
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#72
original; internal quotation marks omitted). Consonant with that limitation, the Court has declined to “ ` “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” ' ” Washington State Grange v. Washington State Republican Party , 552 U. S. 442, 450 (200…
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#73
harm religion. This is a remarkable result, all the more so because the Court strains to reach it. The Court views its decision as “simply restor[ing] the sta- tus quo established by the Montana Legislature.” Ante at 488, n. 4. But it overlooks how that status quo allowed the State Supreme Court to cure any dispa…
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#74
mit[s] some government funding of secular functions per- 3 Petitioners' as-applied challenge fails under Trinity Lutheran for the reasons stated above: The Montana Supreme Court's remedy does not put petitioners to any “choice” at all. Rather, petitioners are free to send their children to any secondary school the…
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#75
the application of a materially similar no-aid provision in Washington State, concluding that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees. 540 U. S., at 721. Page Proof Pending Publication Page Proof Pending Publication Cite as…
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#76
548 ESPINOZA v. MONTANA DEPT. OF REVENUE Sotomayor, J., dissenting to subsidize the exercise of a fundamental right does not in- fringe the right.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983). Finally, it is no answer to say that this case involves “dis- crimination.” Ante, at 477–4…