Aching Joints: The Shrinking Space Between the Establishment Clause and the Free Exercise Clause

*Zachary Babo

I. Introduction

The First Amendment provides religion unique but potentially contradictory protections.[1]  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[2]  In guaranteeing these bedrock rights, the competing principles of the “Religion Clauses” may conflict.[3]  To solve this paradox, the Supreme Court once recognized “there is ‘play in the joints’ between what the Establishment Clause permits and [what] the Free Exercise Clause compels.”[4]  A recent decision regarding the constitutionality of state-sponsored scholarship funds flowing to religious schools may have narrowed that gap, further ushering in an age of “‘[F]ree [E]xercise supremacy.’”[5]  

II. No Straight Line Between Establishment and Exercise

While ruling that tax exemptions for churches did not violate the First Amendment, Chief Justice Warren Burger first articulated this “room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”[6]  When the Court applies the Religion Clauses, its judgments must turn on whether acts are intended to “establish or interfere with religious beliefs and practices or have the effect of doing so.”[7]  But the “complexities of modern life inevitably produce some contact” between government resources and religion.[8]  

The Court again explored the space between the joints of the Establishment and Free Exercise Clauses when reviewing a Washington collegiate scholarship program that did not sponsor students’ pursuits of theological study.[9]  Weighing the State’s substantial “interest in not funding the pursuit of devotional degrees[,]” and the “relatively minor burden” on recipients, the Court found no violation of the Religious Clauses.[10]  Because government funds were spent by the free choice of the scholarship recipients, no Establishment Clause concerns existed.[11]  The program also did not upset Free Exercise as it showed no “hostility towards religion,” or denial of practice; it simply chose “not to fund a distinct category of instruction.”[12]

However, the joints between the Free Exercise and Establishment Clauses grew more rigid when the Court held a Missouri church’s daycare could not be denied state grants to resurface its playground, despite state constitutional provisions prohibiting such aid.[13]  The Court deemed such a denial of benefits “on account of religious identity effectively impose[d] a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”[14] 

III. Montana’s Scholarship Program and “No-Aid” Clause Conflict

The Supreme Court revisited the space between these joints when a group of parents challenged a private school scholarship program in Montana.[15]  State legislators created a tax-subsidy program funding private school scholarships that adhered to the Montana Constitution’s “no-aid” provision, forbidding state funds from directly or indirectly supporting “any sectarian purpose.”[16]  Three mothers seeking to use their scholarships at a Christian school sued the state, claiming the program’s exclusion of religious schools discriminated on the basis of the religious nature of those schools.[17]  The Montana Supreme Court ruled the scholarship program could not be applied in a nondiscriminatory way without violating the state’s “no-aid” provision and, therefore, invalidated the entire program.[18]  The United States Supreme Court overturned this decision, stating that it was actually the application of the state’s “no-aid” provision that was offensive to the Federal Constitution.[19]  In doing so, the Court reenacted the invalidated scholarship program and mandated that it fund sectarian and secular private education alike.[20]  “A State need not subsidize private education.  But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”[21]

IV. Espinoza’s Majority Aligns with Trinity over Locke

Applying the strict scrutiny standard of Trinity, Espinoza’s majority determined the case “turns expressly on religious status and not religious use,” holding that Montana’s program discriminated similarly to the previously overturned Missouri policy.[22]  Since a Montana school would only be eligible for pubic aid if “it divorce[d] itself from any religious control or affiliation,” the scholarship program functions as an “‘indirect coercion’” which “‘punishe[s] the free exercise of religion,” prompting “‘the strictest scrutiny.’”[23]  The Court held that the state’s concerns about government involvement in religious activities were neither narrowly tailored nor “of the highest order” to allow the denial of a general benefit based on religious character.[24]  The majority highlighted two key distinctions to distance its decision from the holding of Locke: (1) Montana’s program discriminated by what the school is, whereas Washington denied the scholarship funds based on what the recipient proposed to do––i.e., use the funds for religious instruction––and (2) Montana could not muster a “‘historic and substantial’ state interest” in disqualifying religious schools from government aid that was comparable to Washington’s “historic and substantial’ state interest” in not funding the training of clergy.[25] 

V. Espinoza’s Internal Debate

Espinoza’s mandate that religious private schools have access to the same government funding as secular ones makes the “separation of church and state [] a constitutional slogan, not a constitutional commitment.”[26]  In his concurrence, Justice Thomas bemoaned the modern understanding of the Establishment Clause, arguing it is a limit only on the federal government, not the states, who may favor a religion so long as they do not coerce an orthodoxy.[27]  Justice Gorsuch argued that the focus on “religious status” as the basis for discrimination is misguided, as the First Amendment protects against both the right to “be a religious person, holding beliefs inwardly and secretly,” and “the right to act on those beliefs outwardly and publicly. . . . The right to be religious without the right to do religious things would hardly amount to a right at all.”[28] 

Justice Breyer, joined by Justice Kagan in dissent, expressed concern “that an overly rigid application of the [Religion] Clauses could bring their mandates into conflict and defeat their basic purpose” of ensuring no religion receives preferential or discriminatory treatment from the government.[29]  Breyer argued the “play in the joints” approach affords breathing room for states to ameliorate conflicts between the Religion Clauses, but the majority’s presumption of unconstitutionality forces the Court to untangle such disputes instead of deferring to the legislatures.[30] 

VI. Conclusion

Espinoza fortifies what Trinity made plain: a state cannot prefer secular institutions over sectarian ones without a compelling reason, of which a state’s constitutional interests in the separation of church and state, broader than what the Establishment Clause requires, is insufficient.[31]  But the Court appears primed to go beyond protecting, to outright preferring, religious institutions and religious exemptions in the law.[32]  With the conversative majority growing from 5–4 to 6–3 upon the sitting of a new justice whose favoring of faith has been evidenced in her writings and decisions, this shift may be expedited.[33]  Though the presumptive requirement of strict scrutiny lends some predictability to judicial outcomes, Espinoza’s fractured opinion leaves many questions unanswered about the interplay between the Religion Clauses.[34]  Perhaps the most compelling argument against the new “presumptive strict scrutiny” standard and for a redoubled willingness to “play in the joints” between the Establishment and Free Exercise Clauses may be found in Breyer’s dissent:

[G]reat care is needed if we are to realize the Religion Clauses’ basic purpose ‘to promote and assure the fullest scope of religious liberty and religious tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.’ . . . The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.[35]

*Zachary Babo is a second-year student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review and a Royal Graham Shannonhouse III Honor Society Distinguished Scholar.  He also serves as a teaching assistant for Prof. Amy Sloan’s Introduction to Lawyer Skills class.  He interned for the Maryland Office of the Attorney General’s Civil Litigation Division in the summer of 2020 and for the Hon. Joseph M. Getty on the Court of Appeals of Maryland in the fall of 2020.  He will be a summer associate with Kramon & Graham, P.A. during the upcoming summer of 2021.  Following graduation, he will serve as a clerk for the Hon. Stuart R. Berger on the Court of Special Appeals of Maryland for the 2022–23 term.  Prior to law school, Zachary worked more than a decade as a multimedia journalist.


[1]  See U.S. Const. amend. I.

[2] Id. (emphasis added).

[3] See, e.g., Locke v. Davey, 540 U.S. 712, 718–19 (2004).

[4] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (quoting Locke,540 U.S. at 718).

[5] Stephanie Russell-Kraft, The Religious Hijacking of the Supreme Court Doesn’t Require Amy Barrett, New Republic (Oct. 6. 2020), https://newrepublic.com/article/159617/barrett-supreme-court-religious-right; see Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020). 

[6] Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 669, 680 (1970).

[7] Id. at 669 (emphasis added).

[8] Id. at 676.

[9] See Locke, 540 U.S. at 716.

[10] Id. at 725.

[11] See id. at 719.

[12] Id. at 720–21

[13] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2040–41 (2017) (Sotomayor, J., dissenting).

[14] Id. at 2019 (majority opinion).

[15] See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2252 (2020).

[16] Id. at 2251–52 (quoting Mont. Const. art. X, § 6).

[17] Id. at 2252.

[18] Id. at 2253.

[19] Id. at 2261–62.

[20] Id. at 2262–63.

[21] Id. at 2661

[22] Id. at 2256.

[23] Id. at 2256–57.

[24] Id. at 2260­–61.

[26] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2041 (2017) (Sotomayor, Ginsberg, J.J., dissenting); see Espinoza, 140 S. Ct. at 2261.

[27] See Espinoza, 140 S. Ct. at 2264 (Thomas, J., concurring).

[28] Id. at 2276–77.

[29] Id. at 2281–82 (Breyer, J., dissenting).

[30] Id. at 2289–91.

[31] See Ian Millhiser, The Supreme Court’s Big Decision on the Separation of Church and State, Explained, Vox (June 30, 2020, 1:24 P.M.), https://www.vox.com/2020/6/30/21308204/supreme-court-separation-church-state-espinoza-montana-school-religion.

[32] See Russell-Kraft, supra note 5; Erwin Chemerinsky & Howard Gillman, Symposium: The Unfolding Revolution in the Jurisprudence of the Religion Clauses, SCOTUSblog (Aug. 6, 2020, 10:36 A.M.), https://www.scotusblog.com/2020/08/symposium-the-unfolding-revolution-in-the-jurisprudence-of-the-religion-clauses/.

[33] See Russell-Kraft, supra note 5.

[34] See Grant Sullivan, Symposium: What “play in the joints” Remains After Espinoza?, SCOTUSblog (July 1, 2020, 12:49 PM), https://www.scotusblog.com/2020/07/symposium-what-play-in-the-joints-remains-after-espinoza/#more-294836

[35] Espinoza, 140 S. Ct. at 2289–90 (Breyer, J., dissenting).

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