LAW AND RELIGION FORUM

At the First Things site this week, I have an essay on last term’s Religion Clause cases at the Supreme Court. I argue that the cases reflect the Court’s attempt to reach a modus vivendi in the culture wars between progressives and the traditionally religious on issues of sexuality, gender, and equality. Taken together, the cases suggest the Court is prepared to acquiesce to the dominant progressive consensus while allowing religious institutions some space to dissent. 

Here’s an excerpt:

Bostock suggests the Justices, including conservatives like Gorsuch and Roberts, are prepared to accede to the progressive view of sexuality and gender. But the Court’s hints about lingering free exercise issues imply it will afford religious institutions space to dissent. Other decisions from last Term confirm this reading. Take Espinoza v. Montana Department of Revenue, the Blaine Amendment case. The Court held, 5-4, that the Montana Constitution’s Blaine Amendment, which prohibits state funding for private religious schools, violated the First Amendment’s Free Exercise Clause. A state may not exclude schools from a funding program simply because of the schools’ religious “status” or “character,” Chief Justice Roberts wrote. “A State need not subsidize private education,” he explained. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Espinoza is a case about equality, but also has implications for debates surrounding sexuality and gender. It’s no secret that many, if not most, private religious schools hold to traditional understandings of sexuality and gender. In fact, parents often choose to send their children to religious schools precisely to avoid the progressivism that pervades public education. Allowing religious schools to receive public assistance on an equal basis with secular schools could make it easier for the traditionally religious to pass on their values to the next generation. 

The Court’s holding that in principle the state must afford benefits to private religious schools on an equal basis with private secular schools is thus important for the traditionally religious. Still, the Court’s focus on a school’s religious “status” raises some questions. Even if discrimination on the basis of a school’s religious affiliation is illegal, it remains unclear, under the Court’s decision, whether a state may restrict funding because the school’s program is at odds with progressive understandings of equality. The Espinoza Court left that question open, though it hinted that discrimination based on a school’s religious “use” of state funds also could be constitutionally problematic.  

You can read the full essay here.