The outcome of Espinoza v. Montana Department of Revenue, a potentially consequential religion case the Supreme Court will hear on January 22, is not particularly uncertain. The case asks whether states may subsidize secular private education without also subsidizing religious education. It’s likely the Court will rule in favor of allowing the subsidies, following a decision in Trinity Lutheran Church v. Comer (2017) that covered similar ground — although there is a chance the Court will decide it lacks jurisdiction to hear this case.

But the question of how the Supreme Court should write its opinion is devilishly difficult. Push too far in one direction and it could lead to states denying very basic services to religious institutions. Push too far in the other direction and the Court could wind up making public funding of religious schools mandatory.

Both Trinity Lutheran and Espinoza involve state constitutional provisions that prohibited those states from spending money to “aid” churches and other religious institutions — the first cases involved Missouri’s Constitution, while the more recent case emerges from Montana. Read literally, both state constitutions could produce absurd results.

As Justice Elena Kagan noted during oral arguments in Trinity Lutheran, the Missouri constitutional provision at issue in that case might be read to prohibit the state from providing “police protection or fire protection” to churches. That is, if a church caught ablaze, the fire department would be required to let it burn.

At the other extreme, lawyers for the plaintiffs in Espinoza — parents who wish to keep their children in a private, Christian school — push a radical theory of the government’s obligations to religious institutions in their brief to the Supreme Court.

The problem with a legal rule that allows the government to subsidize secular private schools but not religious ones, they argue, is “this means that the student may be forced to choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” States, they claim, “cannot condition an individual’s receipt of public benefits on her ceasing religiously motivated conduct.”

Taken seriously, this argument would deeply undermine public education. A student faced with a choice between attending a public school or paying tuition at a religious private school may also have to “choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” According to US Census data, states spend an average of $11,392 per year on each public school student.

If taken to its logical extreme, in other words, the plaintiffs’ argument in Espinoza could, if it carries the day, require every state to give thousands of dollars’ worth of tuition subsidies to religious schools.

The Constitution points in two directions in religion cases

The First Amendment places two limits on the government’s interaction with religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (although the First Amendment speaks of “Congress,” the 14th Amendment makes its provisions applicable to the states as well).

Thus, the establishment clause limits the government’s ability to advance religion, while the free exercise clause limits the government’s ability to target people of faith. Although the proper scope of these limits is hotly contested, the Supreme Court has acknowledged that these two clauses of the First Amendment are “frequently in tension.” The government is obligated both to stay out of religious matters and to protect the rights of the faithful.

“The Court has struggled to find a neutral course between the two Religion Clauses,” it admitted nearly half a century ago. Both clauses are “cast in absolute terms,” and both of them, “if expanded to a logical extreme, would tend to clash with the other.”

According to the state, the Montana constitutional provision at the heart of Espinoza, which was enacted in 1972, is an effort to manage this tension. That provision provides that the state “shall not make any direct or indirect appropriation or payment from any public fund or monies” to churches or other religious institutions.

Because of this provision, the state Supreme Court struck down a state program that helps some private school students pay their tuition.

The state argues in its brief to the Supreme Court that the state constitutional provision was enacted to “prevent the government from gaining undue influence over religious schools, preserve funding for public schools, and protect the rights of taxpayers with religious objections to state aid.” Thus, the provision is not just a safeguard against taxpayer funding of religious education; it’s also a safeguard against a situation where state subsidies begin to reshape religious schools — potentially violating the establishment clause in the process.

The specific program at issue in Espinoza provides very favorable tax treatment to individuals who donate to scholarship programs for private school students — an effective subsidy for those private schools. According to the state, 94 percent of the scholarships funded by this program went to religious institutions in the fall of 2018.

The Montana Supreme Court struck down these subsidies for private schools in 2018, holding that they violate the state constitution’s prohibition on aid to religious entities.

In response, the Espinoza plaintiffs argue that such a bar on funding for religious schools violates the federal Constitution — and under existing precedents they have a very strong case.

Trinity Lutheran involved a Missouri program that offered “state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.” Like Montana, Missouri’s Constitution also bars aid to religious institutions, so the state “had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.”

The Supreme Court struck down this policy, and it spoke in fairly expansive terms at it did so. “Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order,’” Chief Justice John Roberts wrote for the Court in Trinity Lutheran. Thus, Missouri could not forbid religious groups from participating in the playground resurfacing program.

“The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character,” Roberts wrote. “Under our precedents, that goes too far.”

Given Trinity Lutheran’s forceful language, it may seem odd that Espinoza needs to be heard by the Supreme Court at all. The two cases present nearly identical legal questions. So if Trinity Lutheran came down in favor of subsidies for religious schools, so too should Espinoza.

But Roberts’s opinion in Trinity Lutheran also includes one of the oddest footnotes ever to appear in a Supreme Court opinion.

The Supreme Court appears to understand that Espinoza is a tough case

After laying out an expansive theory of the free exercise clause in Trinity Lutheran, Roberts then appeared to negate his work in this footnote:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

This footnote appears to be an acknowledgment that it is not easy to come up with a comprehensive legal doctrine governing all cases where a religious group seeks a public subsidy. But it also renders the holding of Trinity Lutheran somewhat incoherent.

Needless to say, courts typically do not limit constitutional doctrines to the very particular context of playground resurfacing. As Justice Neil Gorsuch wrote in a separate opinion criticizing Roberts’s footnote, “our cases are ‘governed by general principles, rather than ad hoc improvisations.’”

Read in context with his full opinion, Roberts’s footnote appears to draw a distinction between laws that deny government aid on the basis of religious “identity” and those that deny such aid because of “religious uses.” And this distinction does have some grounding in precedent. In Locke v. Davey (2004), the Supreme Court upheld a scholarship program that could be used to fund education at religious colleges and universities, but only for students who did not pursue a degree in “devotional theology.”

Thus, while a state might not be allowed to exclude religious institutions from public programs, it may be able to say that it won’t fund particular activities that are inherently religious in character. Students at Christian-identified schools could still compete for government-funded scholarships, but the school could not seek to fund a missionary program.

It’s not clear how sustainable a distinction between religious identity and religious action is in a world where conservative Christians are fighting hard to blur this line — and where much of the Supreme Court appears eager to let them. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), for example, a baker claimed that his opposition to same-sex marriage is so essential to his identity as a Christian that he should be allowed to ignore a civil rights law prohibiting anti-gay discrimination.

Certainly, the Court’s right flank is eager to tear down any distinction between religious identity and religious action. As Gorsuch wrote in his Trinity Lutheran opinion, “I don’t see why it should matter whether we describe [a] benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

And that right flank also comes into Espinoza in a much stronger position than they were during Trinity Lutheran. Justice Anthony Kennedy, a relatively moderate conservative, is no longer on the Court. His replacement, Justice Brett Kavanaugh, is much more likely to see things Gorsuch’s way than Kennedy was.

The Espinoza plaintiffs, moreover, appear eager to take advantage of a world where the line between religious identity and religiously motivated actions no longer exists. “Many devout families are required by their religious status to place their children in full-time religious schooling,” their brief claims. As evidence, it points to a canon law stating that Catholics have an obligation to entrust “their children to Catholic schools wherever and whenever it is possible,” as well as a brief filed by an Orthodox Jewish group suggesting that children should study the Torah at Orthodox Jewish schools.

The problem with these arguments, once again, is that it is difficult to draw a principled legal distinction between different government programs that fund secular education. If it is unconstitutional to exclude religious schools from a program subsidizing secular private education, then it is hard to come up with a reason the same governments that subsidize secular public education aren’t also required to fund religious education.

Two ways out of this dilemma

There are two ways the Court could resolve Espinoza that would ward off the very difficult questions presented by this case. The first, which Montana proposes in its brief, is to declare the case moot — meaning there is no longer a real dispute between the two sides.

As a general rule, state supreme courts have the final word on questions of state law. They cannot be overruled on matters of state law even by the Supreme Court of the United States. In Espinoza, the Montana Supreme Court held that the private school subsidy program at the heart of this case must be struck down in its entirety, meaning that the highest legal authority in the state of Montana has concluded that this program does not exist at all.

The opposing parties in Espinoza, in other words, are arguing over whether a state program that no longer exists must include religious schools. If there’s no program, there’s a very strong argument that the case is moot.

Should the Court declare the case moot, that won’t put off forever a resolution of the difficult First Amendment questions presented by Espinoza; eventually, another party is likely to arrive at the Supreme Court with a similar claim. But it will buy some time.

Alternatively, the Supreme Court could follow the lead of Chief Justice John Roberts’s majority opinion in Rucho v. Common Cause (2019).

Rucho, which held that federal courts may not even consider challenges to partisan gerrymanders, was rooted in the proposition that it’s just too hard to come up with a principled way to determine which maps are unconstitutional gerrymanders. As Roberts wrote in Rucho, his Court “struggled without success over the past several decades to discern judicially manageable standards for deciding such claims.”

The Court has also struggled without success to manage the tension its own opinions acknowledge between the establishment clause and the free exercise clause. One way to respond to this difficult question: The Court could simply throw up its hands and declare that state lawmakers can operate free from federal judicial oversight, as it did in Rucho.

Of course, the downside of this approach is that it is hard to reconcile such judicial abdication with the text of the Constitution. Both the free exercise clause and the establishment clause are a part of that text. It seems strange for the Supreme Court to simply ignore them.

But the First Amendment also prevents the government from engaging in viewpoint discrimination. That didn’t stop the Court from holding in Rucho that a state legislature may draw legislative maps that inherently favor people who hold one political viewpoint and that disfavors people with a different political viewpoint.

Let’s be serious. There’s little chance that a conservative Supreme Court that appears eager to expand the rights of religious conservatives is going to hold that cases like Espinoza are too hard to decide. But whatever you may think of Rucho, the decision isn’t completely devoid of wisdom.

It is true that if the Supreme Court is so eager to address a particular problem that it does not fully consider the implications of its decision, it can wind up doing more harm than good. Sometimes, the best thing the Court can do when faced with a tough question is to move slowly, or to look for off-ramps that will give the justices more time to consider the issue in a later case.