The Political Economy of the Free Exercise Clause

The Supreme Court has recently heard arguments in Espinoza v. Montana Department of Revenue, a potentially monumental case concerning the Free Exercise Clause. The case concerns the constitutionality of a program in Montana that allows citizens to provide state-funded scholarships to private schools, including religious schools. The Montana Supreme Court held the program unconstitutional under a state version of the so-called Blaine amendment, which prevents any state money from flowing to religious institutions. While there are some thorny procedural issues in the case, most observers believe that, should the Court reach the merits, it will hold that the Blaine Amendment’s discrimination against religious schools is unconstitutional under the Free Exercise Clause. While the state has no obligation to provide scholarships or vouchers to private schools, it cannot exclude religious schools from participating on an equal basis in school choice programs. My friend and fellow Law & Liberty contributor Mark Movsesian has an incisive analysis of why the oral argument in the case suggests this outcome.

 The Political Economy of Religious Inclusion

The likely outcome of the Montana case advances a classical liberal political economy. Requiring religious institutions to be included in programs that compete with purely public provisions of services, like the public schools, makes competition against such services more likely. Religious institutions also create more effective competition since religious institutions can deliver lower-cost services because of their religious affiliations. And finally, religious institutions widen the kinds of services delivered because they are less likely to be influenced by the fads of the secular world.

Religious inclusion in school choice programs highlights all three of these advantages. First, school choice is much more likely to exist in the first place if religious schools can participate because it will gain support from more interest groups—both the religious schools themselves and the parents who want to send children there—pushing for school choice. Indeed, because private religious schools substantially outnumber private secular ones, Blaine amendments are a barrier to any school choice program getting off the ground.

Second, school choice programs have many more lower-cost options when religious schools are included. Religious institutions can call on religious commitments to support their schools, both through donations from their congregations and from religious adherents who have a vocation to work for less than they would in the secular sector. They can also use the existing infrastructure of the religious institution to cut costs. For instance, an urban Catholic archdiocese has existing staff and the local knowledge to monitor city-wide schools. As someone who is searching for a private school in Chicago for my daughter, I have been amazed at the difference in average cost between the secular and religious private schools. The prices range from under $8,000 a year for a Catholic school to close to $40,000 a year for a high-end private secular school.

Third, religious schools are likely to provide a greater variety of education than secular schools alone. Religious schools are much more likely to make the precepts of their religion animate the teaching, curriculum, and general atmosphere. Most religions, in part, center on the transmission of enduring moral truths. They are thus much less likely than private secular schools to be caught up in the latest fads, such as political correctness.

For all these reasons, requiring the state to permit religious institutions to participate in school choice, or indeed in any other government-funded program, advances liberalism of the classical form. In particular, it advances the vision of Alexis De Tocqueville, who saw free association and not individualism per se as the essence of well-ordered liberty. This interpretation of the Free Exercise Clause promotes competition and genuine diversity of views.

John Stuart Mill made the point long ago that just because government funds a program, it does not follow that government should operate it. And operation solely by the government is particularly unwarranted where religious institutions are available. Their interest in running schools and certain kinds of welfare programs reminds us that these are necessarily morally-infused activities. It is dangerous for the state to possess a monopoly or even near-monopoly over such services, not only because its services will be worse without the spur of competition, but even more importantly because those services may be likely to impart whatever faddish uniformity appeals to the bureaucrats of the day. Of course, many progressives want a government market power over such morally-infused services for just that reason. Because of its likely rebuff to this progressive vision, Espinoza is potentially the most significant Supreme Court case this term.

It might be objected that permitting religious institutions to receive government funds permits yet another interest group to lobby for higher levels of state spending. But under current conditions, this concern has little foundation. Religious institutions want to be able to participate in areas, like education, where government already operates. It is not as if religious groups, for example, are at the forefront of pushing for big new infrastructure projects.

The Political Economy of Religious Exemptions

It is interesting to contrast this political economy of religious inclusion with the political economy that arises from another key Free Exercise Clause issue—providing religious adherents with constitutional exemptions from generally applicable regulations. Whether the Free Exercise Clause requires such exemptions is a matter of debate even among originalists. In Employment Division v. Smith, Justice Antonin Scalia held for the Court that the state was not required to provide exemptions from generally and neutrally applicable laws even if the effect of the law were to place burdens on religious exercise. Last fall, the Federalist Society held a superb debate between Michael McConnell and Philip Hamburger on whether this position is correct as an original matter.

But whatever its merits as constitutional interpretation, the exemption position is ambiguous when it comes to its impact on political economy. To be sure, ex post, it permits some groups with serious objections from being burdened by government regulation. But, ex ante, by providing an opt-out to certain religious groups from regulation, it makes the passage of the regulatory law more likely in the first place by reducing the likelihood that the group will lobby against the expansion of the burdensome government regulation. If the neutral inclusion requirement of the Free Exercise Clause operates to make private operation of government programs more likely, a constitutional exemption requirement of the Free Exercise Clause might well facilitate the expansion of the state regulation on those who are not religious.

To be sure, Smith‘s tolerance for legislative exemptions from neutrally applicable rules substantially tempers this constitutional effect. If the legislature cannot beat down the joint resistance of religious and non-religious groups to some expansion of regulation, it can always exempt the religious groups by law and impose the burdens on the rest. But the transfer of exemption from the constitutional to the statutory sphere just shows that statutes that institutionalize such exemptions for religious groups, such as the Religious Freedom Restoration Act (RFRA), also have some ambiguous effects as a matter of political economy.

Moreover, it may explain why progressives supported RFRA in 1993, recognizing that it would grease the passage of some new regulations because religious groups would be less likely to fight against them. As the United States has become more secular, however, progressives have abandoned RFRA because they do not believe that they need to worry as much about the power of religious groups in opposing the expansion of the state.

In any event, comparing these different possible strands of Free Exercise doctrine confirms that, at least as a matter of classical liberal political economy, winning Espinoza is more important than overturning Smith.

Reader Discussion

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on February 13, 2020 at 11:10:11 am

So long as private schools have to recognize a child's rights such as but not limited to the right to grow and style their hair the way they want, wear what they want, and not take p.e. or do community service, then yeah, children should have a right to go to private schools with public money (vouchers).

But if the private school tells people how to cut their hair, how to dress, etc. then those are just concentration camps designed to exterminate the very individuality education is supposed to bring out that has been repressed by the family and mass media.

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Tommie Aquarius
on February 13, 2020 at 11:14:54 am

1: I largely share McGinnis’s views about the policy advantages of permitting religiously-affiliated organizations to participate in government programs.

2: I also share McGinnis’s aversion to Blaine Amendments—but for diametrically opposite reasons.

I oppose Blaine Amendments because I think government should discriminate only to promote bona fide governmental purposes—and generally, discrimination on the basis of religion does not promote these purposes. I read the Smith case as consistent with this view.

McGinnis opposes Blaine Amendments, but seems quite enthusiastic about government discrimination on the basis of religion. Or, at least, on the basis of favored religions.

3: As a gratuitous aside: As far as I can tell, Evanston, IL, has excellent public schools. Last year, US News & World Report listed Evanston Township High School among the best high schools in America, with students in the top 3% on Advanced Placement exams. In short, kids in Evanston—like the kid who received the scholarship during the State of the Union address—are not in obvious need of rescue from “failing public schools.”

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on February 13, 2020 at 11:33:49 am

I believe government should 1) determine what it wants, then 2) go get it. Regarding education, we might imagine government wanting to teach kids to read,, etc. So we'd need to identify some measure for that. (Average standardized test score? Average annual growth in an individual's test scores? Etc.) And government would then offer vouchers for services from vendors demonstrating the ability to provide such services (and the ability to pay the relevant penalty for failure to achieve the objectives).

But if a vendor can deliver what government contracts for, should the rest matter? Perhaps government would specify that it will ensure that every student have a viable option to attend a PUBLIC school, and that PUBLIC schools will refrain from regulating hair, etc. But if parents have the option to send their kids into a free-hair environment, but instead choose a different environment, would that suffice? I get that this might not be the option that YOU would choose--and I respect that--but should YOUR preferences be a reason to restrict OTHER people's choices?

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on February 13, 2020 at 11:42:55 am

One issue that seems too often left out of the discussion in these situations is how the freedom of religion deals with the promotion of religious violence, especially the Muslim Jihadi variety. That example indicates that we must never make the "right" of religious freedom so utterly uniform as to allow that type to be "protected". But then where is the line to be drawn? I have seen a few references to that sort of aggressiveness as being beyond the pale, but not how that is embodied in law.

Something to think about not losing sight of when generalities are thrown about regarding the First Amendment...

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on February 13, 2020 at 12:08:58 pm

One might ask about the definition of "violence". The "Muslim Jihadi variety" is easily recognized and has been employed at one time or another by almost every religious or secular entity as, so to speak, time marched on through human history.

But what about other forms of violence, i.e. forceful suppression of speech such as that now occuring under codes regulating what is termed "hate speech". Also forcible indoctrination of children in public (and in Canada if I am correctly informed, in religious schools) on matters relating to sexual relations, marriage and family life - also ideology relating to the indisputable fact of human sex, male and female (exceptions are tragic, rare, and possibly amenable to medical intervention). Fathers and mothers, responsible parents, principled persons whose lives testify to their behavior as "reasonable", have in many cases been deprived of any freedom except that of resorting to homeschooling. Most families simply do not have the various resources necessary to establish a home school.

These forms of violence seem to begin a process of subjugating Americans to a system bearing a strong resemblance, a strong and disturbing resemblance, to tyranny.

Interested readers may want to read today's post at The Public Discourse. The subject is "civility". It relates to the question before us: Are we still capable of mutual respect across difference?

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on February 13, 2020 at 12:10:53 pm

Perhaps, Evanston is the exception proving the rule. One could cite innumerable other school districts that are failing their students - or as one bright light elementary School teacher in my district now deems them "our young scholars".

Know many 6 year old scholars, do we?

And, of course, we all have read about "teaching to the test". Not so many have heard about grade inflation in order to meet Dept of Ed standards for graduation, competency etc.
It brings to mine the rather cynical reporting of Soviet Plant managers claiming continued advancement and improvements in output and quality that just incidentally met or exceeded the latest goals of the latest Five Year Plan. Such managers gained favor with the Central committees of the Republics while simulataneously being the butt of jokes from the workers who were tossing the much improved output into the garbage dumpsters.

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on February 13, 2020 at 12:17:42 pm

You raise potentially fair point about the relationship between the individual, the state, and "mediating institutions." I sense the general rule in the US is that individuals have the right to ask the state to defend their autonomy, but may surrender that right when they enter into certain institutions. The relationship of children to these institutions, however, is tricky.

For example, if you punch me, I can sue you. But if you and I enter into the institution of boxing, we will be presumed to have waived our objections to being punched by each other, at least consistent with the rules of boxing.

But from here, things get trickier. Under the rules of (some?) orthodox Jews, a woman has no right to obtain a religious divorce from her husband. Now, in the US, no one is legally obliged to abide by such rules. But within certain Orthodox communities, there is some acknowledgement that a bride's friends and family--or even contractors--may employ coercive methods to persuade a husband to grant a divorce. It's not exactly a legal practice, but since orthodox husbands rarely want to invite public scrutiny of the domestic problems within the orthodox community, the practice may go unpunished. It's an understood part of their institution.

The extent to which parents may employ coercive methods in dealing with their kids is complicated. Infant circumcision? Generally legal. Spanking? Generally condoned, but frowned upon. Gay conversion theory? Increasingly prohibited. Honor killings? Flatly illegal.

But where people seek to impose THEIR religious norms on OTHERS without color of law, the law is pretty forthrightly opposed. Thus, the Old Testament provides for the death penalty for a variety of offenses, including the stoning of homosexuals. And members of the Christian Identity Movement (the Klan) may claim a religious motivation for terrorizing black people. This is straightforwardly illegal. While you were not specific, I suspect your reference to Muslim Jihadi violence would fall into the category.

In brief, 1) the followers of many faiths have claimed religious reasons for violence, 2) I know of no evidence suggesting that Muslims are more prone to violence than anyone else, and 3) the fact that someone would claim a religious reason for violence is not a legally recognized excuse for violence.

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on February 13, 2020 at 13:47:41 pm

"should the private school's preferences be a reason to restrict the student’s choices?"

No. Private schools can't abuse children by discriminating against sex or race, beating, spying on people in the school showers, stealing their iPhones, raping, enslaving, or murdering--just to name a few misdemeanors or felonies.

Preventing private schools from telling people what to do with their hair or clothing is just one more form of child abuse prohibited by law to make sure that the schools preferences are forced on the students instead of allowing the students to exercise their individuality--that quality schools are supposed to bring out by educating children.

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Promised Landocalrisean
on February 13, 2020 at 14:25:41 pm

Ah. The "color of law".

Please read Steven D. Smith, "Conciliating Hatred", published at First Things magazine in 2004 .

Where does "law" end and "ideology" begin? That is the question.

Thank you for the civility of your response.

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on February 13, 2020 at 14:30:04 pm

Fair enopugh - BUT:

it is temporally disconnected.

No one adheres to the Biblical injunctions against homopsexuals, nor do they practice "eye for an eye" regimens of justice.

Many, however, DO follow the Koran incitement to jihad. Not two years ago, was it a Gallup or IPSOS (?) poll taken of worldwide Muslims that found that fully one third of them actively approved of jihadist violence.

Let us temper your comments with a little temporal reality, shall we?

As for gay conversion therapy and the role of mediating functions.

The FAMILY is NOT a mediating function. IT is the PRIMARY function in these cases and the
"intervening" function is the State. Unless, of course, you are prepared to allow the State to increase its level of intervention into the PRIMARY socializing function of ALL societies, I suggest that you reexamine your position as it may appear that you approve of the "increasing" prohibition.

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on February 13, 2020 at 15:09:49 pm

I have just realized that you of course meant "cover of law". (I thought you were using an archaic construction unknown to me!). My response would however remain very much the same. Except to write more clearly - or try to:

Where does "making of law in accordance with established precedents" begin and "creation of ideology by representatives and unelected judiciary" begin?

And again, are there many and diverse forms of violence?

I trust that you and "Gabe" will sort this out.

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on February 13, 2020 at 15:21:59 pm

Where does “law” end and “ideology” begin?

Well, generally, law has some foundation in a legal authority. In the US, religious texts do not typically count as legal authority--although courts occasionally cite them as conforming to some legal authority. ("Criminal Code Sec. 201, Prohibition on Murder, reflects a long-understood public policy dating back to....") So that should address your concern about Muslim Jihadi violence.

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on February 13, 2020 at 15:43:32 pm

...poll taken of worldwide Muslims that found that fully one third of them actively approved of jihadist violence.

Maybe. And if you did a survey asking how many people would favor having sex with Gal Gadot, you might get a high number, too. But if you followed up to ask how many people DID have sex with Gal Gadot, you might discover something about aspiration surveys.

Recall Screwtape's admonitions about popular protestations of hate:

"In his anguish, the patient can, of course, be encouraged to revenge himself by some vindictive feelings directed towards the [Nazi] leaders, and that is good so far as it goes. But it is usually a sort of melodramatic or mythical hatred directed against imaginary scapegoats. He has never met these people in real life—they are lay figures modelled on what he gets from newspapers. The results of such fanciful hatred are often most disappointing, and of all humans the English are in this respect the most deplorable milksops. They are creatures of that miserable sort who loudly proclaim that torture is too good for their enemies and then give tea and cigarettes to the first wounded German pilot who turns up at the back door."

C.S. Lewis, The Screwtape Letters, Letter VI

In any event, feel free to read "No, Islam Isn’t Inherently Violent, And The Math Proves It."

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on February 13, 2020 at 16:05:28 pm

BTW: I do not advance the notion that Muslims are inherently violent. I do suppose that there is far too much in Koranic theology that condones violence. History supports this.

Please feel free to read any (or all) of the following:

The Myth of Islamic Tolerance: How Islamic Law treats Non-Muslims

Mohammed and Charlemagne: The History of a controversy Revisited

The Sword and Scimitar: Fourteen Centuries of War Between islam and the West

I could add any number of other books but......

I could add anything by Bat Yeor, an Egyptian Jewish writer, who while focusing more on current Euro-Arab policy *alignments* provides ample historical documentation supporting both Islamic leadership and general Muslim hostility / violence towards non_Muslims.

BTW: Good Screwtape. I would add that were the Good Brits to offer an English pot roast to their prisoners diet, one could then safely argue that they were demonstrating their "hatred."

Also, remember the cardinal rule of evaluating "the math" - What is left out is equally as important as what is presented.

Take care

(Oops, see above for a quote from Hadley Arkes, another First Things contributor. In fact, the quote is from his book "First Things")

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on February 13, 2020 at 16:35:07 pm

"Well, generally, law has some foundation in a legal authority. In the US, religious texts do not typically count as legal authority–although courts occasionally cite them as conforming to some legal authority."

I think this minimizes the actual, albeit long forgotten historical influence of religion upon the law.

Consider Hadley Arkes introductory discussion on the morals and Justice in his book:
First Things: An Inquisition into the First Principles of Morals and Justice

"....When we contemplate those things that stand, universally, as good or bad, justified or unjustified, we are in the domain of morals (or ethics): and as Aristotle understood, the matter of ettics is, irreducibly, a practical concern; ethics involves an understanding of the standards that guide the practice or the activities of our daily lives.Those standards, of necessity, are abstract; if they were not, they could not be universal in application. There is nothing empirical about them, and yet no practical action may be taken in our daily lives, no decision may be made between one course of action or another, without looking "outward" to those general understandings about the things that are right and wrong, just and unjust."

Would you admit that this has been true (not, even, that it is presently true, BTW) since the dawn of human society? Prior to the rise of the philosophers in Greece (also Byzantium, China, etc) from where did the sense of right and wrong, justice or injustice arise AND how was it inculcated into the minds (if NOT the hearts) of human beings.

If you answered via religion, of one sort or another, you would be correct. How often has it been said that the Ten Commandments are akin to a Legal Code? or consider the Canon Law of the Catholic Church; or, an even more obvious example (less salutary to my mind) is Islam and Sharia where there is a direct correspondence between the two.
Yes, there was Justinian's "Corpus Juris Civilis", a codification of all Roman Laws BUT those laws themselves were in part influenced by both Christianity and Roman Paganism, i.e., a religion.

While the tendrils of the religious roots of law may be difficult to discern that have nonetheless, over the centuries, been entwined in the trunk of our laws.

Whether good or bad is not for me to argue. I only point out that as Arkes suggests we MUST look outward from the codebooks to find justification for our own "Corpus Juris"
Some may be suropsied to find that religious beliefs and practices played a significant role in the understandings of not simply what is legal but what is good.

Anyway, just some food for thought. I don;t believe that you intended to be dismissive of the role of religion in law BUT one could infer that.

take care

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on February 13, 2020 at 17:05:58 pm

By "law" we mean things universally-agreed upon like prohibitions on discrimination, theft (communism), monopoly including government monopoly (socialism), rape, murder, slavery.

By "tyranny" we mean things that limit individuality, like telling people the length of their hair, how to dress, who to worship, what drugs they can take, what guns they can own, what erotica they can watch, what music they can listen to, what video games they can play, what schools they can use vouchers at, etc.

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Discriminaton based on the Color of Law
on February 13, 2020 at 19:12:20 pm

It's NOT public money, it's THEIRS-what THEY pay into the school system. They earn their money, and it's their child before it ever reaches the state.

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anony mous
on February 13, 2020 at 21:37:48 pm

I believe I understand your preferences. I don't understand why you would find it important to impose your preferences ON OTHERS.

To simplify, let's assume that kids get to choose where they go to school. If kids CHOOSE to go to a school where people wear uniforms, would it offend you if they then wore uniforms?

At my high school, we had no mandatory uniform--but it seemed as if every boy wore blue jeans, Oxford shirts, and sneakers/hiking boots. If school was supposed to inculcate a sense of individuality as manifest in clothing, ours was a badly failing school.

Then in college, I took an occasional class or two in the music conservatory. I got to observe many fine musicians--musicians that demonstrate tremendous individuality, freedom, and expressiveness through their music. Every one of them had spent their formative years playing scales. In short, some people may conclude that learning discipline is the true path to individuality. I don't mean to persuade you to adopt this view; I merely mean to persuade you that there may be more than one view on these matters--and thus, there may be cause for circumspection about claiming to know what is the best learning environment for everyone.

The beauty of vouchers is that I DON'T have to claim to know what is best for everyone. Perhaps it would suffice to ensure that every kid has the option of attending a school that meets some baseline standard (for the sake of argument, a standard that forbids dress codes, etc.), and then let people choose that option--or choose something else.

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on February 14, 2020 at 18:18:43 pm

"If kids CHOOSE to go to a school where the teachers film them in the shower or beat them if they're late, would it offend you if they then got filmed or beaten?"

Yes. If people have a right to privacy, they have a right not to be filmed and can't be bribed by a good education to go to a place where they lose the right not to privacy. If people have a right not to be beaten, they can't choose to wave that right in hopes of a good education.

Basic rights--like the right not to be discriminated against or beaten--can't be waved by students, and neither can freedom of speech--like wearing what you want.

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Jeffrey Frankepstein
on February 16, 2020 at 03:30:31 am

[…] Law & Liberty (via How Appealing), John McGinnis explains why a holding in Espinoza v. Montana Department of […]

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Friday round-up | Fox and Farmer Law
on February 16, 2020 at 23:47:49 pm

Since it is true that there is nothing in The Catholic Faith that precludes one from becoming a good citizen, and it is true The Catholic Faith helps to develop and educate young gentleman and young ladies to become moral citizens, then The Blaine Amendments, are unconstitutional because they discriminate against Catholics, who, being members of the public, are entitled to public funding for the purpose of education.


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