Carl H. Esbeck (University of Missouri School of Law) has posted With the Supreme Court having Decided Espinoza v. Montana and Ordering the State to Fund Religious Schools: What’s Left of the Establishment Clause? on SSRN. Here is the abstract: Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana, the Court held that when there is a government program with a secular purpose, such as education, social services, or economic relief, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What work is there still to be done by the Establishment Clause? To begin, government cannot set out to prefer religion over nonreligion. That such a preference is a prohibited establishment seems straightforward. And it is, once one appreciates that a discretionary legislative exemption to accommodate religion is not a preference. A religious exemption is where a statute, one […]
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