George Mason
Law Review

All Work and No Play: Why the “Play in the Joints” Doctrine Must Be Revived to Preserve State Autonomy

Zach Kobokovich
Volume 29
Issue 2

Introduction 

The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”1U.S. Const. amend. I. The Establishment and Free Exercise Clauses are internally at odds, though they both seek to foster the flourishment of religious practice in different ways. See Walz v. Tax Comm’n, 397 U.S. 664, 668–69 (1970). While the Establishment Clause generally seeks to keep the government from interacting with religious entities, the Free Exercise Clause may compel government action wrongfully withheld, based on a person’s religious identity. See id. at 669. For a time, the Religion Clauses allowed for a “play in the joints” that provided states a zone of autonomy to craft policies permitted by the Establishment Clause but not required by the Free Exercise Clause.2See Locke v. Davey, 540 U.S. 712, 718–19 (2004) (quoting Walz, 397 U.S. at 669) (describing how the “play in the joints” doctrine refers to the space between the Religion Clauses and the idea that there are some actions that the Establishment Clause allows—such as indirect aid to religious schools—but that the Free Exercise Clause does not compel). In other words, states were free to be more accommodationist or more separationist, so long as they stayed within the boundaries set by the First Amendment.3See id. at 721 (holding that Washington was permitted to provide scholarship funds for ministerial training under the Establishment Clause but was not compelled to do so by the Free Exercise Clause); Emp. Div. v. Smith, 494 U.S. 872, 890 (1990) (holding that Oregon was permitted, but not required, to exempt sacramental peyote use from drug laws utilizing a similar analysis to that in Locke). To the alarm of some, however, the Supreme Court’s recent jurisprudence has severely reduced the space between the “joints” such that the states have far less room to “play.”4See Grant Sullivan, Symposium: What “Play in the Joints” Remains After Espinoza?, SCOTUSblog (July 1, 2020, 12:49 PM), https://perma.cc/QPR6-HCSU. In Espinoza v. Montana Department of Revenue,5140 S. Ct. 2246 (2020). the Supreme Court held that states may not bar private religious schools from participating in neutral school-choice programs without running afoul of the Free Exercise Clause.6See id. at 2256–57. Such restrictions on aid are now understood to impermissibly discriminate based upon religious status, meaning that state programs providing vouchers or tax credits for use at private schools may not exclude religious institutions simply because of what they are.7See id. Although the exact reach of Espinoza remains unclear, there is no question that it significantly narrowed the “play in the joints” doctrine and limited the discretion that the states once enjoyed.8See id. at 2288 (Breyer, J., dissenting).

In particular, Espinoza has profound implications for the majority of states with no-aid provisions written into their respective constitutions.9There is some disagreement as to the exact number of Blaine Amendments currently in force, but it is universally recognized that the majority of state constitutions contain such a provision. Compare Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551, 554 & n.14 (2003) (citing Toby J. Heytens, Note, School Choice and State Constitutions, 86 Va. L. Rev. 117, 134 (2000)) (placing the number at around thirty), with Michael Bindas, The Status of Use-Based Exclusions & Educational Choice After Espinoza, 21 Federalist Soc’y Rev. 204, 204 n.5 (2020) (stating the number is thirty-seven), and Brooke Reczka, The Wrong Choice to Address School Choice: Espinoza v. Montana Department of Revenue, 15 Duke J. Const. L. & Pub. Pol’y Sidebar 237, 239 (2020) (placing the number at thirty-eight). Often characterized as Blaine Amendments, these provisions broadly prohibit state funding from flowing to religious organizations.10Bindas, supra note 9, at 204 n.5 (citing Answers to Frequently Asked Questions About Blaine Amendments, Inst. for Just., https://perma.cc/QW2P-R7YX (describing how Blaine Amendments are characterized by language which “prohibits state legislatures . . . from appropriating funds to religious sects or institutions, including religious schools”)). Under the “play in the joints” doctrine, the more restrictive state constitutional standards existed within the gray area between the religion clauses and were instrumental in enabling the exclusion of religious schools from state voucher programs.11See Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 496 (2003). Espinoza, however, makes clear that states can no longer utilize their no-aid provisions to categorically bar religious schools from receiving generally available school-choice funds.12See Espinoza, 140 S. Ct. at 2261. This mandate appears to leave many states with a serious dilemma. They can either: (1) violate their own constitutions by allowing religious schools to participate in aid programs, or (2) discontinue potentially helpful funding initiatives altogether.13See Bindas, supra note 9, at 213. However, with some creative reinterpretation, it is possible that the various state no-aid provisions can remain intact.

Although on life support, state no-funding provisions arguably remain in force due to the narrow distinction between religious status and religious use laid out in Locke v. Davey.14540 U.S. 712, 721 (2004) (describing the status-use distinction); see also Bindas, supra note 9, at 204–05. In declining to overturn Locke, the Espinoza Court left open the possibility that more targeted restrictions on the actual use of state funds could withstand constitutional scrutiny.15See Bindas, supra note 9, at 213–14. Instead of categorically barring all religious schools from participating in neutral aid programs, which is clearly forbidden by Espinoza, states could potentially prevent diversion of taxpayer funds to support specific types of religious instruction.16See Locke, 540 U.S. at 721 (holding that Washington could identify specific categories of religious instruction, which recipients could not use scholarship funds to pursue). Accordingly, while religious schools would be able to participate in aid programs, they would be required to earmark and utilize state aid for purely secular purposes.17See Bindas, supra note 9, at 213–14. Of course, this approach would require an atextual refashioning of state no-aid provisions to allow indirect funding for secular purposes, but they would at least remain nominally intact as an external bar on unconditional grants to religious institutions. Given the potential allure of limiting Espinoza in this way, it is highly likely that the next round of school-choice battles will be fought over these types of modest restrictions.

This Comment will therefore analyze whether modest use-based restrictions can withstand constitutional scrutiny. Part I will examine the complex history of state no-aid provisions and the early state policies on religious education that led to their adoption. Part II will explore the rise and fall of separationism in the mid-twentieth century, the development of the “play in the joints” doctrine, and the concomitant narrowing of that doctrine that culminated in Espinoza. Part III will then analyze the questions left unresolved by Espinoza, focusing on the merits of three likely approaches that will be pushed by interested parties across a wide spectrum of views. While conceding that the Court will probably cabin the status-use distinction considerably, this Comment argues that a revived “play in the joints” doctrine would better preserve necessary breathing space for state policymakers. This Comment therefore concludes that modest use-based restrictions on religious inculcation can be sufficiently tailored to remain within the boundaries of such a doctrine.

I.     Common Schools and the Complex History of the Blaine Amendments

This Part provides a historical context for understanding the legal, social, and political currents that led to the adoption of state no-funding provisions in the mid- to late-nineteenth century. In particular, this Part examines the origins of public education in the United States, the social conflicts that partially colored the debate around the failed federal Blaine Amendment, and the various state no-aid provisions which both predated and followed that effort.

A.   Common Schools, The Great Protestant Compromise, and the Pre-Blaine No-Funding Provisions

At the turn of the nineteenth century, education was a private enterprise almost universally handled by the churches and combined with religious instruction.18Duncan, supra note 11, at 502. Over time, however, the states began to take greater interest in supporting comprehensive schooling.19See id. at 502–03. One of the earliest examples came from New York City’s Free School Society, which was founded in 1805 to serve poor children underrepresented in the city’s more exclusive church schools.20Ian Bartrum, Comment, The Political Origins of Secular Public Education: The New York School Controversy, 1840–1842, 3 N.Y.U. J.L. & Liberty 267, 287 (2008). The Society began to receive funding from New York’s newly created common-school fund in 1812 and eventually grew to an enrollment of 7,300 students by 1831.21Id. at 288, 291. At the heart of the Society’s curriculum, and the main reason why it became the dominant education provider in New York City, was its nonsectarian form of basic religious education.22See Steven K. Green, “Blaming Blaine”: Understanding the Blaine Amendment and the No-Funding” Principle, 2 First Amend. L. Rev. 107, 119 (2003).

In essence, the concept of nonsectarian education created a grand compromise among the various Protestant churches.23See id. at 120. Instead of teaching the particular doctrine of any one denomination, the curriculum included activities that were fundamental to each faith: daily reading from the King James Bible, recitation of the Lord’s Prayer, and singing of Protestant hymns.24Id. at 119. By teaching only these “commonly shared beliefs and practices,” the Society was able to serve a variety of communities and became the exclusive model for public education in New York City.25See id. at 120. Indeed, in 1825, the New York City Common Council voted to end the funding of all denominational religious schools on the recommendation of a state legislative committee.26See id. at 122 n.60. In explaining its recommendation to defund denominational schools, the State Assembly’s Committee on Colleges, Academies, and Common Schools opined: “Your committee [further wonders] whether it is not a violation of a fundamental principle of our legislation, to allow the funds of the State, raised by a tax on the citizens, designed for civil purposes, to be subject to the control of any religious corporation.” Bartrum, supra note 20, at 290–91 (alteration in original) (quoting N.Y. Gen. Assembly Comm. on Colls. Acads. & Common Schs., Report of the Committee of the Assembly, reprinted in William Oland Bourne, History of the Public School Society of New York (New York, William Wood & Co. 1870)). Since these institutions taught particular church doctrines, they created a source of potential conflict and were unable to assume a necessary public character.27See Green, supra note 22, at 120. The same principles began to appear elsewhere as nonsectarian public schooling became the dominant model for education.28Another of the early examples of this principle came from the nation’s first statewide public-school system in Massachusetts. See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 298 (2001). Massachusetts utilized many of the same denomination-neutral tactics: Bible reading without commentary or discussion, recitation of common prayers, and the singing of hymns. See id. However, almost inevitably, the generalized Protestantism of the common schools stirred up conflict as the burgeoning Catholic population grew in influence.29Duncan, supra note 11, at 504–05.

It was readily apparent that the common schools’ limited religious education was only non-denominational to Protestants.30See id. at 505. Required readings from the King James Bible were a flagrant affront to Catholic doctrine, which placed great importance on the church’s official commentary contained within the Douay Bible.31Id. Accordingly, as their influence grew, Catholics began to strenuously object to the standing order and demanded state funding for parochial schools.32DeForrest, supra note 9, at 560. Although fair in principle, these proposals provoked enormous backlash as common-school supporters moved swiftly to protect the political compromise underlying the system.33See Bartrum, supra note 20, at 303–05 (describing the debate between Bishop Hughes and the Free School Society over the merits of the Catholic petition to receive money from the common-school fund). For example, in opposition to a parochial school proposal, The Law Committee of the New York City Common Council warned that, “Methodist, Episcopalian, Baptist, and every other sectarian school [would] come in for a share of this fund,” if Catholic schools received funding.34Green, supra note 22, at 124 n.67 (alteration in original) (emphasis omitted) (quoting Bourne, supra note 26, at 140). The New York City council agreed and denied the petition.35Id. at 125.

After failure on the local level, New York Catholics instigated a renewed effort to obtain funding from the state legislature in 1842.36See id. This proposal, however, was resoundingly rejected as the New York legislature instead enacted a broad prohibition on the funding of religious sectarian schools.37Id. A number of states followed suit with no-aid provisions of their own.38Duncan, supra note 11, at 507. To be sure, this first wave of state no-aid provisions was at least partially colored by anti-Catholic nativism.39See Green, supra note 22, at 125–26. During this period, the nativist Know-Nothing Party gained considerable influence in local politics and purportedly played an important role in securing the passage of a no-funding amendment in Massachusetts.40DeForrest, supra note 9, at 562. However, as Professor Steven Green has pointed out, it is difficult to explicitly connect anti-Catholic bigotry to most no-funding provisions enacted at this time.41See Green, supra note 22, at 126–27.

Many states that adopted no-aid amendments during this period were not in the midst of an embittered conflict over Catholic immigration that roiled states like Massachusetts.42See Steven K. Green, The Insignificance of the Blaine Amendment, 2008 BYU L. Rev. 295, 312–13. However, to be sure, there was violent conflict between Catholics and Protestants in states with significant Catholic populations. See Jeffries & Ryan, supra note 28, at 300. In Maine, Catholic students could be expelled for failing to read from the King James Bible and in Massachusetts, they were subject to corporal punishment for the same behavior. Id. In Philadelphia, riots broke out over the issue of whether Catholic students could be released from school during Bible reading exercises. Id. Michigan, for example, enacted its no-funding provision in 1835, when the number of Catholic parochial schools operating in the state was negligible.43Green, supra note 42, at 312. In fact, Michigan’s no-funding provision actually came at the behest of Catholic and Presbyterian clergymen who had advocated for universal nonsectarian education in the common schools.44See id. at 313 n.86 (citing Thomas M. Cooley, Michigan: A History of Governments 306–29 (8th ed., Boston, Houghton, Mifflin & Co. 1897)). Similarly, the amendment processes in Wisconsin, Indiana, Ohio, Minnesota, and Oregon were not indicative of any latent hostility towards Catholics.45See id. at 313–15. In fact, in Ohio, the common schools were particularly liberalized and even allowed Catholic students to read from the Douay Bible. Id. at 314. Rather, the enactment of these provisions reflected the idea that the continued vitality of public education depended on avoiding an unhealthy competition among the sects to capture a share of state funding for denominational schools.46See id. at 317–18. In principle, therefore, this first wave of no-funding provisions was primarily grounded on a policy judgment to preserve the financial security of public schooling.47Green, supra note 22, at 128.

B.   Rising Conflict and the Failed Federal Blaine Amendment

As the states continued to enact no-funding provisions, Catholics became more successful in their efforts to achieve fundamental fairness in the common schools.48See DeForrest, supra note 9, at 562–63. Instead of demanding equal funding, they largely shifted their focus to achieving truly nonsectarian education.49See id. at 562. The first major victory came in Ohio, where the Cincinnati School Board elected to prohibit readings from the King James Bible in the city’s common schools.50See id. That extremely controversial action was challenged and later upheld in a momentous decision by the Ohio Supreme Court in 1872.51See Bd. of Educ. v. Minor, 23 Ohio St. 211, 253 (1872); Green, supra note 22, at 133. Other jurisdictions such as New York, Chicago, Rochester, and Buffalo soon followed suit and enacted bans on Bible reading in their respective school districts.52DeForrest, supra note 9, at 562–63. Predictably, this movement was met with swift backlash from Protestant groups.53Id. at 563.

Seeking to exploit this controversy, Representative James G. Blaine introduced a proposed constitutional amendment to the House of Representatives in December 1875.54See Green, supra note 22, at 140. In its original form, the Blaine Amendment provided:

No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.554 Cong. Rec. 205 (1876).

Although Blaine’s proposal was generally well received by the public and in the press, three main criticisms arose.56See Green, supra note 22, at 151.

First, critics on both sides of the school-funding issue pointed out that Blaine’s initial proposal did not fashion an explicit solution to the Bible reading controversy.57See id. at 146–47. While the amendment constitutionalized the broader no-funding principle already enshrined in many state constitutions, it failed to directly address the propriety of nonsectarian religious education in the common schools.58See id. at 143. The Senate eventually resolved this apparent ambiguity by amending the House version and providing that:

No public property and no public revenue . . ., nor any loan of credit . . . shall be appropriated to or made or used for the support of any school . . . under the control of any religious or anti-religious sect . . . , or wherein the particular creeds or tenets of any religious or anti-religious sect . . . shall be taught. . . . This article shall not be construed to prohibit the reading of the Bible in any school or institution . . . .594 Cong. Rec. 5453 (1876), quoted in DeForrest, supra note 9, at 568.

Opponents vehemently objected to this language, noting that it was “a flat contradiction” to explicitly protect bible reading while prohibiting the funding of any school teaching religious tenets.60Id. at 5456, quoted in Green, supranote 22, at 150. One senator pointed out that the Senate version went “far beyond that proposed by Mr. Blaine” and had the potential to “bring evil to our schools, to our institutions, and to the people of our country” by further agitating religious strife.61Id. at 5581, quoted in Green, supra note 22, at 150. Supporters of the amendment countered that the proposal was still broadly tolerant in its equal treatment of the various sects, but those defenses obviously rang hollow.62See Green, supra note 22, at 149.

Second, the federalism implications of the Blaine Amendment were of primary importance, as it presaged increased federal intrusion into state education policy.63See id. at 148–49. Senator Theodore Randolph, for example, asserted that the amendment unduly interfered with traditional state authority over education and even created a state duty to provide public schooling.64Id. at 148. The press echoed similar concerns, with one newspaper claiming that the proposal was a “stupendous stride toward centralization” that would inevitably “turn over the children to be educated by the [f]ederal [g]overnment.”65The Public School Issue, Daily Am., Aug. 5, 1876, at 2, quoted in Green, supra note 42, at 320. By and large, the federalism issue dominated the Senate debate as the amendment’s supporters spent the lion’s share of their efforts allaying fears of centralized control over public education.66See Green, supra note 22, at 148–49. As Professor Green has explained, this was the chief issue for both the Republican majority defending the Blaine Amendment and the Democratic minority attacking it.67See id. at 149.

Finally, the Senate debate was replete with a third bitterly contested point: the Blaine Amendment’s anti-Catholic undertones.68See DeForrest, supra note 9, at 570. Senators William Pinkney Whyte, Lewis Bogy, and William Eaton all charged the Republican supporters of the amendment with leveraging anti-Catholic sentiment into a transparent political ploy.69Id. at 570–72. Instead of downplaying those allegations, Senators George Edmunds and Oliver Morton launched into extended diatribes on Pope Pius IX and the Catholic Church.70Id. Indeed, Senator Morton went so far as to suggest that education could no longer be entrusted to the states because they were prone to capture by local Catholic majorities bent on destroying public education.71Id. at 572. Although Senator Morton later tried to clarify his comments, the damage was done.72See id. It was clear that anti-Catholic animus was a significant motivation for some of the amendment’s key supporters.73See id. at 570–72.

Ultimately, the Blaine Amendment met a rather ironic demise. It was rejected along a strict party-line vote of twenty-eight yays to sixteen nays with twenty-seven senators absent.74See DeForrest, supra note 9, at 573. Among those abstaining was the newly appointed Senator James Blaine, who had lost interest in his own amendment after conceding the 1876 Republican nomination to Rutherford B. Hayes.75Duncan, supra note 11, at 509. Blaine failed to so much as mention the amendment in his subsequent memoirs, but it would become the defining feature of his legacy as the states seemingly picked up where he nonchalantly left off.76See Green, supra note 22, at 142.

C.   The Post-Blaine No-Funding Provisions

By 1876, when the Blaine Amendment was rejected in the Senate, fifteen states had enacted no-aid provisions either by statute or by constitutional amendment.77Duncan, supra note 11, at 516. This momentum continued after the Blaine Amendment’s failure as Colorado, Texas, Georgia, New Hampshire, Minnesota, California, and Louisiana all adopted no-funding amendments in the late 1870s.78Id. at 518. Thirteen more states added no-aid provisions in the 1880s and 1890s, with the most notable enactments coming from Montana, North Dakota, South Dakota, Washington, and Wyoming.79Id. at 519. Subject to Congress’s 1889 Enabling Act, those newly created states were required to provide for public schools “free from sectarian control” in their respective constitutions as a precondition for obtaining statehood.80Id. Four more states added no-funding amendments in the early part of the twentieth century before Alaska and Hawaii brought the final tally to thirty-eight when they joined the Union in 1959.81Id. at 520–21.

It is difficult to specify the exact motivations behind many of the post-Blaine enactments, though anti-Catholic bias may have certainly played a role. As Professor Green has noted, unlike the federal Blaine Amendment, the records on many of the state enactments are rather sparse and contain little evidence of explicit anti-Catholic animus.82See Green, supra note 42, at 312. Additionally, a number of the post-Blaine provisions were modeled after earlier state amendments that, as discussed above, were primarily motivated by protecting the viability of the common schools.83See id. at 328. Since anti-Catholic bias varied according to local predilections, it is both unfair and inaccurate to portray religious bigotry as the sole factor animating the post-Blaine amendments simply by connecting them to failed federal effort.84See id. at 330–32. The historical record is much more complex.

II.     Separationism, “Play in the Joints,” and the Attack on State No-Aid Provisions

This Part lays out the legal dynamics which led to the various state no-aid provisions becoming the primary mechanism to block the inclusion of religious schools in state voucher programs. In particular, this Part traces the rise and fall of separationism as the guiding principle of the Supreme Court’s Establishment Clause jurisprudence, the increasing importance of state no aid-provisions under the permissive “play in the joints” doctrine, and the resultant free exercise challenges to those provisions which culminated in Espinoza.

A.   The Rise and Fall of Separationism

In Everson v. Board of Education,85330 U.S. 1 (1947). the Supreme Court first applied the Establishment Clause to the states through the Fourteenth Amendment.86See id. at 15–17 (allowing state busing of students to religious schools that adjoined local public schools). This marked a tectonic shift in the federal-state balance, as the Court would thereafter become deeply involved in policing an area of policy that had traditionally been left to the states’ discretion.87See Jeffries & Ryan, supra note 28, at 287. Indeed, in Everson, the Court emphatically announced its intent to enforce a wall of separation between church and state that “must be kept high and impregnable.”88Everson, 330 U.S. at 18. In practice, that wall of separation performed two major functions within the educational context: (1) ensuring complete secularism in the public schools, and (2) imposing limitations on state interaction with private religious schools.89See Lemon v. Kurtzman, 403 U.S. 602, 617, 621–22 (1971) (striking down state programs reimbursing teacher salaries in private religious schools where secular responsibilities could not be meaningfully distinguished from religious instruction); Bd. of Educ. v. Allen, 392 U.S. 236, 248 (1968) (upholding the provision of textbooks to children attending religious schools for secular subjects such as mathematics and history); Sch. Dist. v. Schempp, 374 U.S. 203, 223–24 (1963) (striking down Bible reading and recitation of prayers in Maryland and Pennsylvania public schools); Engel v. Vitale, 370 U.S. 421, 424–25 (1962) (striking down voluntary recitation of non-denominational prayers in public schools); Zorach v. Clauson, 343 U.S. 306, 312 (1952) (upholding a released-time program conducted off school grounds and paid for solely by religious institutions); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 209–11 (1948) (striking down a voluntary released-time program for religious instruction in public schools). For the most part, the former principle remains in place, as the Court has steadfastly affirmed the impropriety of any religious exercise or instruction in the public schools.90See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 306–07 (2000) (prohibiting a policy of allowing student invocations containing religious speech before school football games); Lee v. Weisman, 505 U.S. 577, 589–90 (1992) (prohibiting recitation of non-denominational prayer at school graduation); Wallace v. Jaffree, 472 U.S. 38, 56–57 (1985) (striking down an Alabama statute providing for voluntary recitation of prayers in public schools). The latter function, however, was never as strictly enforced and eroded considerably over time.91See Hunt v. McNair, 413 U.S. 734, 743–44 (1973) (allowing state aid to religious college because the aid was solely used for secular purposes and religion did not permeate every aspect of the school); Tilton v. Richardson, 403 U.S. 672, 681–82 (1971) (allowing a similar federal program to that approved in Hunt) (opinion of Burger, C.J.); Allen, 392 U.S. at 248 (upholding the provision of textbooks to children attending religious schools for secular subjects such as mathematics and history); Everson, 330 U.S. at 17–18 (allowing for children attending private religious schools to be transported by public busing).

From the outset, the Court’s commitment to strict separation between the states and private religious schools was never absolute.92See Everson, 330 U.S. at 18. Even in the era of separationism, the Court allowed parochial school students to use public busing, approved loans of secular textbooks to religious schools, and upheld programs providing aid to religiously affiliated colleges for secular purposes.93See Hunt, 413 U.S. at 743–44 (allowing state aid to religious college because the aid was solely used for secular purposes and religion did not permeate every aspect of the schools); Tilton, 403 U.S. at 681–82 (opinion of Burger, C.J.) (allowing a similar federal program to that approved in Hunt); Allen, 392 U.S. at 248 (upholding the provision of textbooks to children attending religious schools for secular subjects such as mathematics and history); Everson, 330 U.S. at 17–18 (allowing for children attending private religious schools to be transported by public busing). The Court did, however, draw a very clear line between higher education and primary schooling.94See Roemer v. Bd. of Pub. Works, 426 U.S. 736, 751 (1976) (opinion of Blackmun, J.). Whereas religiously affiliated universities were rarely “pervasively sectarian” and served a student body less susceptible to religious inculcation, primary church schools created unique dangers because religion permeated every aspect of the their educational processes.95Wolman v. Walter, 433 U.S. 229, 247, 249–50 (1977); see also Meek v. Pittenger, 421 U.S. 349, 366 (1975); Levitt v. Comm. for Pub. Educ. & Religious Liberty, 413 U.S. 472, 480 (1973); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 767–68 (1973); Lemon v. Kurtzman, 403 U.S. 602, 617, 621–22 (1971). Accordingly, any aid to religious primary schools required guarantees that the aid: (1) solely benefitted the individual students, and (2) could only be used for secular purposes.96See Wolman, 433 U.S. at 249–50 (prohibiting loans of secular educational materials which could have been used for religious purposes); Meek, 421 U.S. at 366 (upholding loaned secular textbooks to religious primary school students but prohibiting loans of instructional materials directly to the schools); id. at 362 (opinion of Stewart, J.) (same); Levitt, 413 U.S. at 480 (prohibiting reimbursement of religious primary schools’ testing expenses); Nyquist, 413 U.S. at 767–69 (prohibiting tax benefits and tuition reimbursement for parents of religious primary school students); Lemon, 403 U.S. at 617, 621–22 (striking down state programs reimbursing teacher salaries in private religious schools); Allen, 392 U.S. at 248 (upholding the provision of textbooks to children attending religious schools for secular subjects such as mathematics and history). Under this standard, separationism between the states and religious private schools reached its brief apex.

In the latter part of the twentieth century, however, the separationist rationale collapsed. In Mueller v. Allen,97463 U.S. 388 (1983). the Court approved of a Minnesota program offering tax deductions for private-school tuition even though ninety-six percent of the program’s beneficiaries were enrolled in religious schools.98See id. at 405 (Marshall, J., dissenting). Even with that rather skewed distribution, the Court found the program permissible because it depended on individual choice and was neutrally available to students of both religious and non-religious schools.99See id. at 398–99 (majority opinion). The same reasoning was later applied to uphold a state program providing scholarships to students attending religious universities and a federal program permitting sign language interpreters to assist students in religious schools.100See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993) (upholding a federal program providing sign language interpreters for deaf children attending religious schools); Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 489 (1986) (upholding a scholarship program that gave aid to disabled students for religious training). The final step came in Zelman v. Simmons-Harris,101536 U.S. 639 (2002). where the Court permitted an Ohio voucher program providing taxpayer funds to religious schools with no restrictions on whether the funds could be used for religious instruction.102See id. at 687 (Souter, J., dissenting). In dissent, Justice Souter lamented that the majority’s holding in Zelman effectively overruled Everson and ended the era of separationism.103See id. at 687–88. In addition to its greater acceptance of indirect aid, the Court also overhauled its jurisprudence on direct aid. In Agostini v. Felton, the Court overruled its baseline presumption that the provision of secular materials or services to “pervasively sectarian” schools necessarily supported the religious mission of those institutions. See 501 U.S. 203, 223–24 (1997). Instead, the Court held that direct aid, so long as it is secular in nature, may only raise establishment concerns when it is actually diverted to religious use. Id.; see also Mitchell v. Helms, 530 U.S. 793, 857 (2000) (O’Connor, J., concurring). Justice O’Connor’s concurrence in Mitchell is like the Marks opinion, as it rejected the plurality’s more expansive proposed rule that actual diversion of government aid to religious use is permissible if the aid is neutrally disseminated. See Mitchell, 530 U.S. at 837–38 (O’Connor, J. concurring). Notably, the plurality also mentioned the perceived anti-Catholic history of the Blaine Amendment in arguing that the Court should repudiate its precedents relying on the distinction between “sectarian” and “pervasively sectarian” schools. Id. at 828–29 (plurality opinion).

B.   The “Play in the Joints” Doctrine, State No-Aid Provisions, and Free Exercise Challenges

As the Supreme Court loosened its Establishment Clause jurisprudence, the states gained a great deal of discretion to fashion their own standards under the developing “play in the joints” doctrine.104See Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970). This phrase was first mentioned in Walz v. Tax Commission,105397 U.S. 664 (1970). where the Court dispensed of an establishment challenge to the tax-exempt status of New York churches.106See id. at 676. Writing for the Court, Chief Justice Burger stated that “there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”107Id. at 669. Accordingly, while the Free Exercise Clause and the Establishment Clause provide binding standards, the states gained the ability to craft policy in the considerable space between the clauses as the clauses drifted further apart.108See Gabrielle Gollomp, Comment, Trinity Lutheran Church v. Comer: Playing “in the Joints” and on the Playground, 68 Emory L.J. 1147, 1158 (2019).

In practice, the modified federalism of the “play in the joints” doctrine enabled the states to be as accommodationist towards religion as the Establishment Clause would allow or as separationist as the Free Exercise Clause would permit.109See id. at 1157. This was especially true for those states with constitutional no-funding provisions.110See id. at 1160–61. For example, on remand in Witters v. State Commission for the Blind,111771 P.2d 1119 (Wash. 1989). the Washington Supreme Court struck down a scholarship program that the U.S. Supreme Court had specifically upheld under the Establishment Clause.112Id. at 1121. Due to the “sweeping and comprehensive” language of Washington’s no-funding provision, the program failed on state constitutional grounds because it provided public funds for religious instruction.113Id. at 1122. Other states similarly interpreted their constitutions as providing a stricter separation between church and state than the baseline standard of the Establishment Clause.114SeeSheldon Jackson Coll. v. State, 599 P.2d 127, 129–32 (Alaska 1979); Cal. Tchrs. Ass’n v. Riles, 632 P.2d 953, 960–64 (Cal. 1981); Epeldi v. Engelking, 488 P.2d 860, 865 (Idaho 1971); Bloom v. Sch. Comm. of Springfield, 379 N.E.2d 578, 580 (Mass. 1978); Paster v. Tussey, 512 S.W.2d 97, 104 (Mo. 1974); Gaffney v. State Dep’t of Educ., 220 N.W.2d 550, 553 (Neb. 1974); Elbe v. Yankton Indep. Sch. Dist., 372 N.W.2d 113, 118 (S.D. 1985); Chittenden Town Sch. Dist. v. Dep’t of Educ., 738 A.2d 539, 562–63 (Vt. 1999). In contrast, a few states interpreted their no-funding provisions as functionally equivalent to federal standards and permitted the implementation of neutral school-choice programs.115See Kotterman v. Killian, 972 P.2d 606, 623–24 (Ariz. 1999); Simmons-Harris v. Goff, 711 N.E.2d 203, 212 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602, 620 (Wis. 1998). This made for a diversified educational landscape that perfectly exemplified the flexibility of the “play in the joints doctrine.”116See Marc D. Stern, Blaine Amendments, Anti-Catholicism, and Catholic Dogma, 2 First Amend. L. Rev. 153, 156–57 (2004).

Of course, as state no-aid provisions took on a more central role in the school-funding controversy, school-choice advocates developed new lines of argument.117See id. at 158. Primarily, they contended that state no-funding amendments impermissibly targeted religious practice in contravention of the Free Exercise Clause.118See id. This line of argument was particularly compelling based on the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.119508 U.S. 520 (1993). In Lukumi, the Court found that animal-cruelty laws ran afoul of the Free Exercise Clause because they failed to treat religious observers neutrally.120See id. at 535. Although ostensibly neutral, the laws were specifically intended to curb animal sacrifice by adherents of the Santeria religion and therefore unfairly targeted religious practice.121See id. at 535–36. Based on that precedent, school-choice supporters were initially successful in arguing that state programs which explicitly singled out religious observers for unfavorable treatment were unconstitutional due to a lack of neutrality.122Davey v. Locke, 299 F.3d 748, 752–53 (9th Cir. 2002), rev’d, 540 U.S. 712 (2004).

The Supreme Court, however, provided a temporary reprieve from the effort to roll back state no-aid provisions in Locke.123See Locke v. Davey, 540 U.S. 712, 719–20 (2004). Relying on the permissive federalism of the “play in the joints” doctrine, the Court clarified that a lack of hostility towards religion, not absolute facial neutrality, was all that the Free Exercise Clause required.124See id. Accordingly, a Washington scholarship program could, consistent with the Free Exercise Clause, refuse to fund the “essentially religious endeavor” of pursuing a ministerial degree without displaying impermissible animus.125Id. at 721. Unlike Lukumi, where religious practice was essentially criminalized, the program merely declined to subsidize a specific category of religious instruction and was therefore distinguishable.126Id. at 720. Following Locke, state no-funding provisions remained a viable method for blocking the implementation of voucher programs which directed funding to religious schools.127See Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 351 P.3d 461, 470–71 (Colo. 2015) (striking down state voucher program that included religious schools); Moses v. Skandera, 367 P.3d 838, 846–47 (N.M. 2015) (striking down a state textbook loan program, and discussing similar dispositions in other states with no-funding provisions); see also Eulitt ex rel. Eulitt v. Me., Dep’t of Educ., 386 F.3d 344, 354–55 (1st Cir. 2004) (upholding Maine’s tuition assistance program, which excluded public schools based on a broad understanding of Locke).

Locke, however, also had clear limits, and the Supreme Court would later revisit its exact boundaries in Trinity Lutheran Church of Columbia, Inc. v. Comer.128137 S. Ct. 2012 (2017); see also Gollomp, supra note 108, at 1161–62. At issue in Trinity Lutheran was a Missouri program providing funds for playground resurfacing to daycare and kindergarten facilities.129Gollomp, supra note 108, at 1162. Based on its strict no-funding provision, Missouri enacted a categorical prohibition on the participation of church-run daycare centers in the program.130Trinity Lutheran, 137 S. Ct. at 2017. Distinguishing Locke, the Court found that this constituted discriminatory action.131See id. at 2023–24. Writing for the Court, Chief Justice Roberts emphasized that “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”132Id. at 2023. In contrast, Trinity Lutheran was improperly excluded from generally available state funding solely because of its status as a church.133Id. Based on this distinction between religious status and religious use, Missouri’s actions ran afoul of the Free Exercise Clause.134See id. at 2023–24. Although it declined to pass on other forms of funding, the Court had set the stage for its decision in Espinoza.135See id. at 2024 n.3 (opinion of Roberts, C.J.).

C.   Espinoza and the Further Narrowing of Locke

Espinoza came before the Supreme Court as an opportunity to extend the principles laid down in Trinity Lutheran. In Espinoza, the disputed program was a tax-credit initiative which enabled Montana citizens to deduct charitable donations made to participating scholarship organizations.136Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2251 (2020). The funds raised by the program were provided to eligible recipients, who could then direct them to the private school of their choice.137Id. Although clearly permissible under the Establishment Clause, the Montana Supreme Court found that the program violated the state’s no-aid provision by directing state funds to sectarian schools.138Id. at 2253. In his majority opinion, Chief Justice Roberts explained that this holding depended on clear discrimination against the religious status of the participating schools.139Id. at 2256–57. Rather than identifying and prohibiting the use of state funds for specific types of religious instruction, the program imposed a categorical prohibition on religious schools “solely because they [were] religious.”140Id. at 2261. As in Trinity Lutheran, that all-or-nothing approach could not withstand constitutional scrutiny under the Free Exercise Clause.141See id. at 2256–57.

In addition to simply applying Trinity Lutheran, the Court narrowed Locke even further and squarely addressed the history of Montana’s no-funding provision.142See Espinoza, 140 S. Ct. at 2257–59. In discussing Locke, the Court clarified that restrictions on religious use must invoke some “historic and substantial interest” in not funding that specific type of activity.143See id. at 2258. Whereas, in Locke, Washington had a historic interest in not funding the clergy, the Court found no convincing evidence that a similar tradition existed within the school-funding context.144See id. at 2259. Rather, the Court found that state funding of religious education was commonplace in the early republic and determined that the state no-aid provisions of the nineteenth century were tainted by anti-Catholic bias.145See id. Since these enactments were “born of bigotry,” they did not “evince a tradition that should inform our understanding of the Free Exercise Clause.”146Id. Notably, Justice Gorsuch would have gone further and argued for the elimination of the status-use distinction altogether.147See id. at 2278 (Gorsuch, J., concurring). He contended that “the right to be religious without the right to do religious things would hardly amount to a right at all” and effectively called for the Locke to be overturned.148Espinoza, 140 S. Ct. at 2277 (Gorsuch, J., concurring) (emphasis omitted).

Justice Alito, concurring, charted a different path and instead focused on the anti-Catholic motivations behind some of the state no-aid provisions adopted in the nineteenth century.149See id. at 2269–73 (Alito, J., concurring). Drawing on that history, Justice Alito argued the legislators’ original biases were relevant to determining the constitutionality of the no-aid provisions.150See id. at 2274. In essence, that conclusion breathes new life into an argument long raised by school-choice advocates: that the biased origins of the state no-funding amendments render them facially unconstitutional on free exercise and equal protection grounds.151See Richard G. Bacon, Rum, Romanism and Romer: Equal Protection and the Blaine Amendment in State Constitutions, 6 Del. L. Rev. 1, 40 (2003); Margo A. Borders, Note, The Future of State Blaine Amendments in Light of Trinity Lutheran: Strengthening the Nondiscrimination Argument, 93 Notre Dame L. Rev. 2141, 2150–53 (2018). In the inevitable next round of school-choice litigation, it is highly likely that this argument will be asserted, and it is clear that state no-aid provisions are now on exceedingly shaky footing even if they currently remain nominally intact.

III.     Towards a Revived “Play in the Joints” Doctrine

Following Espinoza, state no-aid provisions likely remain in force due to the survival of the distinction between religious status and religious use.152See Bindas, supra note 9, at 213–14. What remains unsolved, however, is whether that distinction carves out any meaningful space for state policymakers to limit the diversion of taxpayer funds to religious instruction. For example, if Montana were to re-enact its tax-credit scholarship program, could it reinterpret its no-aid provision to permit indirect funding to religious schools for purely secular purposes? What if such a program were to specify that state funds could not be utilized to fund the salaries of ordained ministers or for activities such as school-run worship services, Bible study courses, or student faith groups?

Under Espinoza, the answer is not clear but it is likely that interested parties will advance three general solutions: (1) striking down no-aid provisions as a class in order to prevent the implementation of use-based restrictions; (2) confining the status-use distinction to the context of scholarships for ministerial degrees, or eliminating it altogether; and (3) preserving a modest space for “play in the joints” to prevent actual diversion of taxpayer funds to quintessentially religious endeavors. This Part outlines each of these solutions and argues that the third solution best balances state autonomy with Espinoza’s central holding.

A.   The Strong Accommodationist Approach: Directly Challenging the Constitutionality of State No-Aid Provisions

Espinoza will likely revive interest in bringing facial challenges to the constitutionality of state no-aid amendments.153See Borders, supra note 151, at 2153–54 (recognizing the inherent difficulties of raising an animus-based argument); Ira C. Lupu & Robert W. Tuttle, Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev. 917, 969 (2003) (describing the animus-based argument against the constitutionality of state no-aid provisions as “twisted and uphill”). These provisions have consistently served as a thorn in the side of school-choice advocates and, if left in place, could lead state courts to require use-based restrictions on voucher programs to ensure compliance with stricter state antiestablishment standards.154See Lupu & Tuttle, supra note 153, at 957–61, 966–67, 972–74 (describing the challenges of the no-aid amendments, and then outlining what conditions could be placed on vouchers). To forestall this protracted state-by-state litigation, school-choice advocates will likely echo the arguments raised by Justice Alito. In his Espinoza concurrence, Justice Alito detailed the disturbing history of anti-Catholic animus in the nineteenth century and the influence that religious bigotry played in the federal Blaine Amendment.155See Espinoza, 140 S. Ct. at 2269–73 (Alito, J., concurring). Drawing on that history, he argued that the same bias pervaded the adoption of state no-aid provisions, especially in those states that were required to enact them as a precondition to obtaining statehood.156Id. Based on this animus towards Catholics, Justice Alito concluded that even apart from their impermissible discrimination on religious status, state no-aid provisions fail on free exercise grounds due to their use of “bigoted code language” prohibiting the funding of sectarian schools.157See id. at 2270.

Justice Alito’s concurrence will likely reinvigorate a line of argument long raised by school-choice advocates that state no-aid provisions are presumptively unconstitutional as a result of that history.158See Bacon, supra note 151, at 35–37; Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 Fla. L. Rev. 909, 1042–43 (2013); Robert G. Natelson, Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federalist Soc’y Rev. 98, 105 (2018); Brandi Richardson, Comment, Eradicating Blaine’s Legacy of Hate: Removing the Barrier to State Funding of Religious Education, 52 Cath. U. L. Rev. 1041, 1046 (2003); Erica Smith, Blaine Amendments and the Unconstitutionality of Excluding Religious Options from School Choice Programs, 18 Federalist Soc’y Rev. 48, 53–54 (2017). This position draws on two theories: (1) that state no-aid provisions violate the Free Exercise Clause because they were based solely on animus towards Catholics, and (2) that state no-aid provisions violate the Equal Protection Clause because they were intended to discriminate against a vulnerable class.159See Bacon, supra note 151, at 35–37; Smith, supra note 158, at 53–54. The free exercise theory is derived from Lukumi, where the Court invalidated local ordinances intended to single out observers of the Santeria religion for unfavorable treatment and criminal sanction.160See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993). On similar reasoning, the equal protection theory is rooted in Romer v. Evans161517 U.S. 620 (1996). and Hunter v. Underwood,162471 U.S. 222 (1985). where the Court struck down state constitutional provisions enacted to discriminate against minority groups.163See Romer, 517 U.S. at 635–36 (striking down a state constitutional amendment targeting LGBTQ persons); Hunter, 471 U.S. 222 at 233 (striking down a state constitutional provision which targeted African Americans). School-choice advocates have contended that state no-aid provisions may be struck down under either theory due to anti-Catholic animus that allegedly drove the passage of each state amendment during the nineteenth and twentieth centuries.164See Bacon, supra note 151, at 35–37; Richardson, supra note 158, at 1075–77.

Although this line of argument does correctly detail the sordid history of anti-Catholic bigotry in the nineteenth century, it fails to justify a process of invalidating thirty-eight longstanding state constitutional provisions. Unlike the provision at issue in Romer, which specifically targeted LGBTQ persons, state no-aid amendments are facially neutral in their treatment of different religious groups.165Compare Romer, 517 U.S. at 634–35 (stating that LGBTQ persons suffered “real injuries” as a result of the targeted law enacted), with Borders, supra note 151, at 2149 (describing how school-choice programs, if neutral and focused on the freedom of the parent, do not violate the Establishment Clause). In general, they provide that public aid shall not flow to discrete sects or denominations, a command that applies equally to all faiths.166See Duncan, supra note 11, at 516–18. Although this mandate does target religion as a whole, which of course raises a separate question as to whether the resulting restrictions are properly limited to those on use, Locke established that absolute neutrality towards religion is not necessarily a prerequisite of the Free Exercise Clause in the absence of animus.167See Locke v. Davey, 540 U.S. 712, 720 (2004). Accordingly, to the extent that they pursue an animus theory, critics of the amendments must definitively demonstrate that the enacting legislatures were moved to action by an impermissible discriminatory intent towards a discrete religious minority.168See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993); Hunter, 471 U.S. at 232–33. Although there is some evidence to that effect, it is not clear that each and every state legislature was primarily motivated by anti-Catholic prejudices.169See supra Section I.A.

To start, it is insufficient to point to the federal Blaine Amendment as proof of bias because a significant number of state no-aid provisions predated it.170See Green, supra note 42, at 327–28. As Professor Green has persuasively argued, those earlier amendments were largely enacted to enshrine the concept of nonsectarian public education.171Id.at 310–15. This principle sought to protect the viability of common schools by providing a basic religious education that refrained from teaching the specific tenets of any denomination or sect.172See Green, supra note 22, at 119–20. Through this delicate compromise, which was admittedly geared towards commonly held Protestant traditions, public schooling replaced sectarian education as the dominant model.173See id. At bottom, this was a policy judgment. For example, the New York City Common Council noted that approving parochial school funding would have meant that “Methodist, Episcopalian, Baptist, and every other sectarian school [would] come in for a share” of state funding.174Id. at 124 n.67 (alteration in original). To be sure, this policy was unfair to Catholics who could not abide by the generalized Protestantism of the common schools, but it was conceived out of concern for the financial integrity of public schooling, not latent hostility towards Catholics.175See Green, supra note 42, at 310–15. Any prolonged emphasis on the use of the word “sectarian” as constituting bigoted code language is therefore misplaced.

Further, even for those no-aid provisions which followed the Blaine Amendment, it is still difficult to identify specific animus on the part of each enacting legislature. The records of the post-Blaine enactments are sparse and the degree of prejudice towards Catholics varied from jurisdiction to jurisdiction.176See id. at 329. It is certainly possible that state legislators were motivated to act by anti-Catholic bigotry, but it is equally likely that they sought to protect the financial viability of the common schools by supporting nonsectarian education. Indeed, many of the post-Blaine enactments were directly modeled off pre-Blaine provisions that were ostensibly driven by the latter purpose.177Id. at 328. For example, the language of Ohio’s 1851 Constitution was later mimicked by the Florida Constitution of 1885.178Id. at 297 n.17. Similarly, Washington’s 1889 constitutional convention parroted language from neighboring Oregon’s 1857 Constitution.179Id. at 328 n.160. Again, those later enactments may have been influenced by the federal Blaine Amendment, but the direct textual connection to earlier state amendments is also compelling.

At most, there may have been a more concrete connection between the legacy of the Blaine Amendment and the four states—Wyoming, South Dakota, North Dakota, and Montana—that were required to enact no-funding provisions under the Enabling Act of 1889.180See id. at 330–31. As Justice Alito pointed out, one senator characterized the Enabling Act as “completing the unfinished work of the failed Blaine Amendment” by requiring newly admitted states to provide nonsectarian public schools.181See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2271 (2020) (Alito, J., concurring) (internal quotation marks omitted). While perhaps probative of congressional intent—and even this is not clear because that lone statement was not echoed by any other senator182See Green, supra note 42, at 331.—this still does not explain the intent of the enacting state legislatures. As Professor Green has noted, the records of the constitutional conventions of the four states who enacted no-aid provisions pursuant to the Enabling Act were similarly devoid of explicit anti-Catholic bias.183Id. at 332. Without more concrete evidence, it would be tenuous to transpose Senator Blair’s intent to the small minority of states that were subject to the Enabling Act’s unique requirements.

In the absence of more specific proof of animus, declaring state no-aid provisions presumptively unconstitutional would constitute a significant intrusion on state affairs. Unlike in Lukumi and Hunter, where hostility towards a minority group on the part of each enacting body was unmistakable,184See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993); Hunter v. Underwood, 471 U.S. 222, 232–33 (1985). there simply is not enough to justify declaring open season on state no-aid provisions. While Justice Alito raises some cogent points, it will likely be difficult for school-choice advocates to pursue this line of argument on solely an animus theory, at least for now. Of course, that leaves the separate question of whether state no-aid amendments are unconstitutional for disfavoring religion as a class based on religious status.

B.   The Moderate Accommodationist Approach: Confining or Eliminating the Status-Use Distinction

A second general approach would severely restrict or completely abolish the status-use distinction while leaving state no-aid provisions nominally intact. At least theoretically, under this approach, no-aid provisions could still block the initial creation of school-choice programs because they would necessarily require funding of religious schools. In this way, some state autonomy would be preserved for the decision of whether or not to actually establish a voucher or tax-credit program in the first place. However, when such a program is established, use-based restrictions would either be completely unavailable or limited to the context of scholarships for ministerial degrees. This position was laid out in two different forms by Chief Justice Roberts—whose majority opinion narrowed the status-use distinction185See Espinoza, 140 S. Ct. at 2257–58.—and Justice Gorsuch—whose concurring opinion advocated for simply doing away with it altogether.186See id. at 2276–78 (Gorsuch, J., concurring).

1.   Limiting the Status-Use Distinction to “Historic and Substantial” Interests

In Espinoza, Chief Justice Roberts emphasized that use-based restrictions must: (1) be targeted against essentially religious endeavors, and (2) identify some “historic and substantial interest” in not funding those activities.187See id. at 2257–58 (majority opinion). In adopting a demanding originalist interpretation of the latter requirement, the Chief Justice intimated that any “historic and substantial interest” must be grounded in an antiestablishment tradition which existed during the founding era.188See id. at 2258. In Locke, that requirement was satisfied because the longstanding tradition of not subsidizing the clergy stretched back to the late-eighteenth century.189See id. In Espinoza, however, the Chief Justice found that no similar “early American tradition” existed within the school-funding context, especially when many denominational schools received state funding in the early republic.190See id. at 2258–59. Under this extremely restrictive understanding, most—if not all—use-based restrictions will struggle mightily to clear the “historic and substantial interest” bar. Unless the same interest existed at the time of the founding, a use-based restriction will falter under constitutional scrutiny even if it solely targets an essentially religious endeavor.191See Espinoza, 140 S. Ct. at 2257. Accordingly, outside of the Locke context, state no-aid provisions may have very little room to operate under the Chief Justice’s framework.

The Chief Justice’s narrowing of Locke to its unique factual situation has long been advocated by scholars such as Professor Douglas Laycock.192See Douglas Laycock, Theology Scholarships, The Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155, 184 (2004). As Professor Laycock argued shortly after Locke was first decided, “[t]here is much to suggest, beginning with the Court’s discussion of tradition and its collection of early state constitutions, that the opinion is confined to the training of clergy.”193Id. at 184. Since no similar tradition against the funding of religious education existed in the late-eighteenth century, Professor Laycock contended that the lack of a similar “tradition-based interest” in the school-funding context should be fatal to any state restrictions on aid to religious schools.194Id. at 185–86. Indeed, Professor Laycock observed that while “[t]he tradition-based interest . . . [was] thus at its maximum in Davey . . . [,] it is considerably weaker in other contexts” and “[d]istinctions along these lines would be perfectly sound.”195Id. at 185. Safely cabined in that manner, Locke would simply serve as an exceedingly rare exception to a principle of absolute neutrality towards religion in the context of school funding.196See id. at 173, 184.

Although less sweeping than Justice Alito’s direct challenge to state constitutions, this position is certainly a questionable interpretation of Locke. In Locke, the relevant inquiry was whether the refusal to fund a distinct category of religious instruction demonstrated hostility towards religion.197See Locke v. Davey, 540 U.S. 712, 720, 724 (2004). The discussion of state antiestablishment interests, while focusing on the longstanding tradition of declining to subsidize the clergy, was directly attuned to that end.198See id. at 723. Rather than imposing a stringent additional requirement, the Locke Court merely emphasized that the historic nature of that interest made it particularly weighty.199See id. at 722, 724. Thus, this discussion provided further support for the Court’s conclusion that nothing “in the history or text . . . nor in the operation of the Promise Scholarship Program . . . suggests animus toward religion.”200Id. at 725. Nor was the historic nature of the antiestablishment interests the sole consideration. For example, the Court also emphasized that the scholarship program went “a long way toward including religion in its benefits” by allowing recipients to use funds at pervasively religious universities.201Id. at 724–25. It was never suggested that a use-based restriction on religious instruction could only be derived from antiestablishment traditions which predated or were contemporaneous with the founding.202See id. at 725 (discussing that the Court need not go further in deciding the case and implying that it need not discuss whether use-based restrictions could only be derived in line with originalist interpretation). Interpreting Locke to support such a command is simply not faithful to its logic, the touchstone of which was the nonexistence of animus.

Further, even if Locke’s discussion of “historic and substantial” antiestablishment interests had controlling importance, the same interests were arguably at issue in Espinoza.203See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2070–71 (2020) (Thomas, J., concurring); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188–90 (2012). As Justices Alito and Sotomayor pointed out, many teachers at religious schools are understood to be “ministers” for the purposes of federal employment discrimination law.204SeeOur Lady of Guadalupe, 140 S. Ct. at 2072 (Sotomayor, J., dissenting); Hosanna-Tabor, 565 U.S. at 199 (Alito, J., concurring). Indeed, a few days after Espinoza was decided, the Court expanded the “ministerial exception” to include any teacher—including those with no formal religious training—that performs “vital religious duties” such as “educating young people in their faith, inculcating its teachings, and training them to live their faith.”205See Our Lady of Guadalupe, 140 S. Ct. at 2064–66. That being so, there may have been a “historic and substantial” interest in Espinoza: the longstanding tradition of declining to fund the clergy that was previously established in Locke.206True, the ministerial exception is of recent origin, but its underlying reasoning is squarely rooted in concerns derived from the Founding era. In Hosanna-Tabor, the Court explained that “[c]ontroversy between church and state over religious offices is hardly new” and went through a detailed examination of the relevant history and its effect on the First Amendment’s religion clauses. Hosanna-Tabor, 565 U.S. at 182–83. That analysis seems to intimate, at the very least, that there is a historic and substantial interest in avoiding government involvement in the internal personnel decisions of religious organizations. Relatedly, there is an equally longstanding and historic interest in not funding the clergy, as both Locke and Everson pointed out in discussing the Virginia assessment controversy, a historical flashpoint wherein Thomas Jefferson and James Madison prevented a Virginia bill, which would have permitted direct tax grants to “teachers” of the Christian faith. See Locke, 540 U.S. at 722 n.6; Everson v. Bd. of Educ., 330 U.S. 1, 11–12 (1947). At bottom, those interests are interrelated: government should not interject itself into the personnel decisions of religious institutions, but nor should it provide direct support to those religious officers who it is prevented from appointing. If the Court considers ministers to historically be any person, ordained or not, who performs religious functions and teaches the faith, then it must contend with both of those historic interests. Under federal law, the tax-credit funds at issue would have presumably paid the salaries of teachers functionally understood to be ministers charged with the inculcation of religious beliefs. As in Locke, Montana therefore may have had a “historic and substantial” interest in avoiding the propagation of direct money grants to persons occupying religious offices.207See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2257–58 (2020).

On the whole, the lasting impact of the Chief Justice’s majority opinion will be to severely restrict the permissive federalism of the “play in the joints” doctrine and shut the door on more targeted use-based restrictions, which would have been consonant with Locke’s reasoning. For example, if a school voucher program were to broadly embrace church-affiliated schools but prohibit the use of state funding for essentially religious endeavors, it would be “including religion in its benefits.”208See Locke, 540 U.S. at 724. In this scenario, religious schools would be permitted to enjoy the same benefits as secular schools for the same purposes: receiving tuition aid to subsidize secular education. Any specter of status-based distinctions would be inherently banished under such a program, as the sole restrictions would be placed on essentially religious courses of instruction such as Bible study. Under Locke and its broad vision of the “play in the joints” doctrine, this evenhanded approach would have been permitted. Under the Chief Justice’s approach, however, reliance on a narrow vision of history would trump the states’ traditional discretion to craft policies that neither endorse nor inhibit religious practice. Although it is unlikely that the Court will change course, it should reconsider the federalism implications of its current trajectory before making an irreversible commitment to the Chief Justice’s narrow view.

2.   Eliminating the Status-Use Distinction Altogether

Opting for a less-incremental approach, Justice Gorsuch argued that the status-use distinction is illogical and should be rejected outright.209Espinoza, 140 S. Ct. at 2276 (Gorsuch, J., concurring). He noted that the record in Espinoza was “replete with discussion of activities, uses, and conduct,” making it more natural to conclude that “the State’s discrimination focused on what religious parents and schools do—teach religion.”210Id. at 2275 (emphasis omitted). In recognizing this reality—that religious actions are inexorably connected to religious status—Justice Gorsuch contended that the Free Exercise Clause protects both inward belief and outward action.211Id. at 2276. In support of that point, he cited Sherbert v. Verner,212374 U.S. 398 (1963). a landmark free exercise case in which unemployment insurance was improperly denied to a Seventh-Day Adventist who refused to take any job that required work on Saturdays.213Espinoza, 140 S. Ct. at 2277 (Gorsuch, J., concurring) (citing Sherbert, 374 U.S. at 399–401). While one could construe this as discrimination on Ms. Sherbert’s status—her identity as a Seventh-Day Adventist—Justice Gorsuch pointed out that the real issue was that “she had put her faith into practice.”214Id. at 2277. So too, he argued, did the petitioner in Espinoza, who sent her children to a religious school teaching the “same Christian values” that she instilled at home.215Id. at 2275–76. Whether framed as discrimination on status or discrimination on conduct, Justice Gorsuch forcefully concluded that “it is unconstitutional all the same.”216Id. at 2278.

Other scholars have echoed Justice Gorsuch’s concerns about the wisdom of the status-use distinction. As Professors Thomas Berg and Douglas Laycock argue, the Free Exercise Clause encompasses both the freedom to believe and the freedom to act.217Thomas C. Berg & Douglas Laycock, Espinoza, Government Funding, and Religious Choice, 35 J.L. & Religion 361, 365 (2020). Indeed, Professors Berg and Laycock point out that the line between status and use can become especially blurred when considering “intense” religious activity.218Id. at 366. They note that religious actions can in many ways form a crucial and inseparable part of a person’s identity, especially for those whose faith permeates every aspect of their life.219See id. at 366–67. With regard to the deeply devout, Professors Berg and Laycock note that any use-based discrimination on neutral school aid places a unique disability on “families and schools for whom the ‘intensity’ of religious practice calls for integrating religion into the educational process.”220Id.at 366. Professors Berg and Laycock therefore conclude that “[t]o allow aid to religious schools but not to their religiously grounded teaching ‘singles out those religions that cannot accept such “bracketing” of religious teaching’” and violates their free exercise rights.221Id. at 367 (quoting Thomas C. Berg, Vouchers and Religious Schools: The New Constitutional Questions, 72 U. Cin. L. Rev. 151, 177 (2003).

To a degree, Justice Gorsuch, Professor Berg, and Professor Laycock are correct that the Free Exercise Clause protects both inward belief and outward action. However, as Justice Sotomayor pointed out in dissent, “the right to exercise one’s religion d[oes] not include a right to have the State pay for that religious practice.”222Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2296 (2020) (Sotomayor, J., dissenting) (citing Sch. Dist. v. Schempp, 374 U.S. 203, 226 (1963)). The relevant inquiry in government benefits cases is whether religious persons or entities have been unfairly excluded because of who they are or what they believe.223See id. at 2255–56 (majority opinion). At a fundamental level, this analysis is about fairness: religious persons should be able to receive neutral government aid on the same terms and for the same purposes as their secular counterparts. With that being said, there is a crucial difference between the wholesale exclusion of religious persons from generally available benefits and government conditions on the use of funds. The former is an improper form of discrimination on religious status224See Berg & Laycock, supra note 217, at 363.—which is admittedly bound up with religious expression—while the latter is an indispensable part of the Court’s Establishment Clause jurisprudence.225Cf. DeForrest, supra note 9, at 618 (“[T]he Supreme Court’s [First Amendment] doctrine protects religious groups and believers from government restriction of the substantive content of their speech . . . .”).

If there is no meaningful difference between restrictions on status and restrictions on use, then it is at least questionable whether the government may continue to require sequestration of direct funding for purely secular purposes. In Mitchell v. Helms,226530 U.S. 793 (2000). the Court’s most recent case touching on a direct school funding program, Justice O’Connor firmly reiterated that actual diversion of direct aid to religious indoctrination is impermissible.227See id. at 857 (O’Connor, J., concurring in the judgment). Justice O’Connor’s concurrence in Mitchell is like the Marks opinion as it rejected the plurality’s more expansive proposed rule that actual diversion of government aid to religious use is permissible if the aid is neutrally disseminated. See id. at 837. Accordingly, as the law currently stands, that foundational restriction on use is not merely permitted by the Free Exercise Clause but compelled by the Establishment Clause.228See id. at 869–70. Further, this type of use-based restriction is recognized outside the educational context, with President Obama’s Executive Order 13559 specifying that “[o]rganizations that engage in explicitly religious activities . . . must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance.”229Exec. Order No. 13,559, 75 Fed. Reg. 71,319 (Nov. 17, 2010). Executive Order 13559 has been explicitly implemented through rulemaking by multiple federal agencies, meaning that a variety of federal programs limit direct aid to religious organizations for secular purposes.230SeeFederal Agency Final Regulations Implementing Executive Order 13559, 81 Fed. Reg. 19,355, 19,355 (Apr. 4, 2016). Justice Gorsuch’s proposal to completely abolish the status-use distinction contradicts that nuanced and longstanding view.

Beyond its potential to erode the Court’s Establishment Clause jurisprudence, Justice Gorsuch’s view is untenable in the indirect funding context because it equates restrictions on eligibility with restrictions on actual use. In Espinoza, the wholesale exclusion of religious schools from the tax-credit program was essentially an eligibility requirement. To initially qualify for receiving state funding, any participating school was required to be secular in character.231SeeEspinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2255–56 (2020). In contrast, there are plenty of scenarios where restrictions could permissibly limit the actual use of state funds by religious entities. The primary example of this was Locke, where religious students and religious schools were given equal access to scholarship funds except for one particular use: devotional training in preparation for the ministry.232See Locke v. Davey, 540 U.S. 712, 720–21, 721 n.4 (2004). There is no reason why, within proper limits, states could not restrict the use of taxpayer funds for similar types of religious instruction in primary schools. In essence, this would simply be reaching the same compromise that the federal government has applied in cases of direct funding: Religious entities are eligible to receive funding but may only utilize it for specified secular ends. Especially for states with no-aid provisions, this evenhanded approach would best balance the free exercise rights of religious persons with the state’s stronger antiestablishment interests.

Justice Gorsuch’s approach, therefore, should be rejected as it attempts to provide an unneeded panacea to a line-drawing problem that is perfectly manageable. Instead of requiring states to include religious schools in neutral aid programs, which is eminently reasonable, his view would compel unconditional grants to religious institutions. In effect, this would force states to either: (1) forgo any and all aid programs to comply with their no-aid provisions; or (2) effectively repeal their no-aid provisions, or neuter them to the point of utter uselessness. Such a result would be unwarranted when a much more reasonable compromise is available.

C.   The Moderate Separationist Approach: Reviving the “Play in the Joints Doctrine”

The final approach, what this Comment deems the moderate separationist view, allows states to operate useful school-choice programs while also complying with relatively more-stringent antiestablishment standards. This approach revives the federalism component of the “play in the joints” doctrine and enables states to place restrictions on the actual use of taxpayer funds for distinct categories of religious instruction. It does not compel any particular result and merely imbues the states with greater discretion to enact educational policies which best comport with local needs and traditions.

As the law currently stands, the “joints” of the Religion Clauses establish that state aid to religious schools must be dependent on individual choice,233See Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002). and that religious schools must be included in neutral funding programs.234See Espinoza, 140 S. Ct. at 2254–56. Where does this leave the majority of states with no-aid provisions? They essentially have two choices: (1) refrain from enacting any school-choice program to avoid conflict with stricter state antiestablishment standards; or (2) allow unconditional, indirect funding to religious schools if any aid program is adopted to avoid discrimination based on religious status. While those all-or-nothing solutions might work for some jurisdictions, other states may wish to subsidize private schools, even private religious schools, without completely ignoring their own constitutions. The moderate separationist approach simply seeks to carve out a reasonable middle ground by expanding the availability of genuine restrictions on the use of taxpayer funding. Use-based restrictions on distinct categories of religious instruction, although in tension with the plain meaning of most no-aid provisions, would at least enable states to disburse aid to religious schools while still maintaining stronger antiestablishment standards. As the Court emphasized in Locke, “[i]f any room exists between the two Religion Clauses, it must be here.”235Locke, 540 U.S. at 725.

Such an understanding would also be fully consistent with Espinoza’s central holding. In Espinoza, the Court established a bright-line rule: Religious entities may not be excluded from generally available government benefit programs simply because of who they are.236See Espinoza, 140 S. Ct. at 2255–56. That is an eminently reasonable command, but it does not follow that the states should be precluded from enacting modest restrictions on the actual use of taxpayer funds. While private religious schools do have a right to receive the same treatment as their secular counterparts, Locke instructs that there is no similar interest in using state funding to subsidize essentially religious endeavors.237See Locke, 540 U.S. at 720–21. That is a distinction that has long been recognized in the direct funding context,238See Mitchell v. Helms, 530 U.S. 793, 857 (2000) (O’Connor, J., concurring in the judgment); Wolman v. Walter, 433 U.S. 229, 249–50 (1977) (prohibiting loans of secular educational materials that could have been used for religious purposes); Meek v. Pittenger, 421 U.S. 349, 364, 366 (1975) (upholding loaned secular textbooks to religious primary school students, but prohibiting loans of instructional materials directly to the schools); Levitt v. Comm. for Pub. Educ. & Religious Liberty, 413 U.S. 472, 480–82 (1973) (prohibiting reimbursement of religious primary schools’ testing expenses); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 768–69 (1973) (prohibiting tax benefits and tuition reimbursement for parents of religious primary school students); Lemon v. Kurtzman, 403 U.S. 602, 617, 621–22 (1971) (striking down state programs reimbursing teacher salaries in private religious schools); Bd. of Educ. v. Allen, 392 U.S. 236, 248 (1968) (upholding the provision of textbooks to children attending religious schools for secular subjects such as mathematics and history). and it is unclear why states cannot apply the same logic to indirect funding programs when they have stronger antiestablishment standards embedded in their respective constitutions. If a state provides aid to a religious school for secular education but withholds it for specified categories of religious instruction, no free exercise rights are burdened. The school may still engage in those essentially religious endeavors while receiving state aid; it simply cannot use taxpayer funds to subsidize them. All that Lockerequires is an evenhanded approach, which substantially includes religion in the benefits of generally available funding programs.239See Locke, 540 U.S. at 724. A truly neutral school-choice program with modest use-based restrictions satisfies that mandate.

To be sure, it is true that any use-based restrictions on religious instruction would not be facially neutral with respect to religion. However, Locke seemingly held that absolute neutrality is not required under the Free Exercise Clause in the absence of animus towards religion.240See id. at 720, 724. Moreover, Locke seems to suggest that, when relatively modest use-based restrictions are at issue, a lesser form of scrutiny is warranted.241There is also plenty of reason to believe that strict scrutiny should apply under Lukumi. See Locke, 540 U.S. at 726 (Scalia, J., dissenting) (arguing that Lukumi firmly establishes strict scrutiny as the applicable standard of review for any laws that are not facially neutral toward religion). Indeed, the level of scrutiny applied in Locke is far from clear but appears to have been some form of intermediate scrutiny warranted by the modest use-based restrictions at issue. See id. at 720, 725 (majority opinion) (rejecting the applicability of Lukumi, and asserting that the law passed scrutiny because it advanced a substantial government interest and only placed a minor burden on religion). The Supreme Court will likely resolve this issue in the pending case of Carson ex rel. O.C. v. Makin, 979 F.3d 21 (1st Cir. 2020), cert. granted, 141 S. Ct. 2883 (2021). Nonetheless, at the time of this writing, this Comment precedes on the idea that lesser scrutiny is warranted. If strict scrutiny did apply, however, this Comment posits that the state interest in providing funding for a basic public education without religious proselytization would still withstand strict scrutiny. That interest is compelling and there likely is not a less restrictive means of accomplishing it short of the very limited use-based restrictions conceived of here. So long as the state advances a substantial interest and places only a minor burden on religious practice, then Lockeinstructs that use-based restrictions may withstand constitutional scrutiny.242See Locke, 540 U.S. at 725. Under the moderate separationist approach advocated here, both of those elements are satisfied.

First, the burden on religious practice, if any, would be negligible because church-affiliated schools and their students could still engage in essentially religious endeavors while receiving state aid. True use-based restrictions, unlike in Espinoza, would not stand as absolute prohibitions on funding religious schools, but would merely limit that funding to secular endeavors. Second, the states can advance a substantial interest in providing funding for low-income students to receive the equivalent of a secular education, even though those students have opted out of the public-school system.243See, e.g., Carson, 979 F.3d at 42–45. In Carson, the First Circuit found compelling Maine’s stated interest in providing free public education, which the State determined to be necessarily secular in character, to children in rural districts that did not otherwise have access to a local public school. See id. at 42. Certainly, it is noteworthy that the Justices seemed highly skeptical of the validity of this asserted interest during oral argument in Carson. See Amy Howe, Conservative Justices Scoff at Maine’s Exclusion of Religious Schools from Tuition-Assistance Program, SCOTUSblog(Dec. 8, 2021, 4:42 PM), https://perma.cc/T5YK-3223. That said, context matters and there is a marked distinction between, on the one hand, asserting an interest in providing funding for a basic secular education as a means of wholly excluding religious schools from a neutral aid program, and on the other hand, asserting that interest in the context of an inclusive program that does fund religious schools while providing some modest restrictions on how the funds may actually be used. The former example, exemplified in Carson, is status-based discrimination masquerading as use-based restrictions and is indistinguishable from Espinoza, by punishing religious schools that actually teach religion. The latter position, however, is consonant with Espinoza and allows broad participation by religious schools, even those that are pervasively religious, in a neutral program, while simply preventing the actual diversion of state funds to distinctively religious activities. In this context, though there is no guarantee, the Justices might be more receptive to the state’s position. In this way, the state can ensure that those students are receiving the same benefit as children attending the public schools without being required to fund a limited class of emphatically religious activities. Limiting state funding solely to secular instruction in religious schools accomplishes that interest without completely excluding religious schools from aid programs because they engage in essentially religious endeavors.

Certainly, school-choice supporters will likely argue that determining what constitutes an “essentially religious endeavor” will devolve into a messy redux of the Supreme Court’s mid-twentieth-century Establishment Clause jurisprudence. As Professor Laycock has wryly observed, those earlier attempts at separating the religious from the secular led to “much-ridiculed distinctions” wherein the government “could provide books, but not maps; . . . bus rides to school, but not bus rides to field trips” on the off-chance that any religious instruction could be provided.244Laycock, supra note 192, at 164. Although it is possible for such tortuous distinctions to reappear in the present context, delineating those activities which the states may decline to fund would be a far more-limited enterprise. And by limiting the inquiry in this manner, any related Establishment Clause concerns regarding potential entanglement would likewise be de minimis.

For one thing, under Locke, states may only place restrictions on essentially religious endeavors. Although non-exhaustive, a list of such activities would likely include Bible study courses, school-run worship services, and religiously proselytizing events by student faith groups (though not necessarily events where aspects of religion are discussed for purposes of academic debate).245The obvious potential retort to some of these restrictions, especially those directed to the worship activities of student faith groups, is that such restrictions would constitute viewpoint discrimination under Rosenberger v. Rector & Visitors of University of Virginia See id. at 169; see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). That would especially seem to be the case if, as this Comment suggests, state money could flow to other student activities, such as sports teams, but not to student faith groups. Locke, however, forecloses that argument for the most part. In Locke, the Court found that the Oregon scholarship program did not constitute a forum for speech because “[t]he purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to ‘encourage a diversity of views from private speakers.’” Locke, 540 U.S. at 720 n.3. That logic would seemingly apply to the context of funding primary school tuition for qualifying families, which is likewise not a forum for speech. Secular subjects where aspects of religion may potentially be discussed, such as history or civics, would not fall under that heading. Nor would a biology class which teaches the creationist approach alongside secular scientific topics. In short, use-based restrictions would necessarily be limited to a very finite range of activities involving direct proselytization as opposed to any activity that could conceivably advance religion. Line drawing problems might still exist, but they would be far less vexatious and are still preferable to the alternative of simply abdicating all controls over the permissible use of taxpayer funds. At bottom, the states would only restrict funding a very limited range of activities involving direct proselytization or worship.

Lastly, any lingering free exercise objections to the administration of such a program would likely fall wide of the mark. Indeed, in order to comply with Espinoza, states would not be able to engage in status-based distinctions through the guise of potential diversion. For example, a neutral aid program could not categorically exclude deeply religious schools where faith animates the educational process. In essence, this would require state administrators to decide which schools are too religious to receive state funding because they would be presumptively unable to avoid diverting it to religious use. That is fundamentally a status-based distinction that punishes church-affiliated schools that take their faith-based missions seriously. Espinoza plainly forbids that result. Accordingly, the proper standard for exclusion from the sort of program proposed here would necessarily be an actual, willful diversion of state funding to essentially religious endeavors in clear violation of the safeguards implemented by the states.246See Mitchell v. Helms, 530 U.S. 793, 857 (2000) (O’Connor, J., concurring in the judgment) (reaffirming standard of actual, as opposed to potential, diversion). This is largely a recognition that at least some mixing of the religious and secular functions of participating schools is inevitable and should not prospectively disqualify deeply religious schools from participation in neutral aid programs. Rather, only direct violations of the minimal safeguards enacted would properly lead to exclusion.

Properly cabined in this way, genuine use-based restrictions would: (1) not pose any threat of resurrecting insidious status-based distinctions, (2) be fully consistent with Espinoza’s central command, and (3) provide a necessary rejuvenation of the “play in the joints” doctrine. This approach would simply provide state policymakers with the discretion to enact reasonable restrictions on the actual use of taxpayer funding while ensuring that religious schools may share in the benefits. Especially in comparison with the more sweeping alternatives, which would either require the complete abrogation of school-choice programs or the effective nullification of state constitutional provisions, the moderate separationist approach presents the best path forward.

Conclusion

Espinoza and Trinity Lutheran are correct to draw a line between religious status and religious use. Church-affiliated schools cannot be categorically barred from receiving neutrally available state aid without discriminating against the religious identity of those institutions. However, this does not mean that states, when they offer such aid, should be required to provide unconditional grants to religious institutions in violation of their respective constitutions. Yet, in different ways, that is essentially what Chief Justice Roberts and Justices Alito and Gorsuch would require. Whether by declaring state no-aid provisions presumptively unconstitutional, eliminating the status-use distinction entirely, or limiting its application to the facts of Locke, the result would be the same: States would have to provide taxpayer funding to religious schools with no controls on how that money could be utilized. That cannot be correct.

Rather, to preserve the permissive federalism which animated Locke, states should possess the discretion to enact modest use-based restrictions under a revived “play in the joints” doctrine. This would provide states with necessary breathing room to ensure that taxpayer money is not diverted to essentially religious endeavors involving direct proselytization. Such an approach would be properly limited to the actual use of state funds and could not be utilized to reanimate insidious status-based discrimination. Accordingly, out of respect for state autonomy over education policy, the Court should interpret Espinoza to allow for these modest use-based restrictions.

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