Ultimately, the Court in Trinity rejected the fungibility argument, a position that Justice Stephen Breyer reaffirmed in the opening arguments of Espinoza. The proposition, Breyer said, that the state will “give police protection to all schools, all people, but no religious institution” is a facially “unconstitutional” one. Lawyers for the mothers suing in Espinoza agreed, arguing that the revocation of their children’s scholarships was an unconstitutional exercise in religious discrimination: the denial of a neutral public benefit — a scholarship to be used as they please — because of their status as religious persons.
Justice Brett Kavanaugh’s rejoinder to the respondents during opening arguments helps to explain the fundamental difference between Espinoza and Locke. While he conceded that “funding religion, funding religious schools generally or training of clergy is . . . an establishment clause-concern,” as argued in Locke, Kavanaugh claimed that Espinoza raises “a separate issue when you set up a neutral-benefit program — police, fire, or scholarships — and allow people to use those things, allow religious institutions to obtain the benefits of those things on a non-discriminatory basis.”
Kavanaugh’s assertion reaches the question at the heart of Espinoza: Is it constitutional for a state to withhold a neutral public benefit — here, a scholarship that parents can use at either a secular or religious private school — because the recipient of that benefit might use it in furtherance of a religious end? The plaintiffs acknowledge that states do not have an obligation to subsidize private education. If a state decides to do so, however, it has a constitutional duty to treat all of its citizens, religious and non-religious alike, with an even hand. That duty is what’s at stake here, and we won’t have to wait too long to know the outcome: A ruling is expected this summer.
— National Review (@NRO) January 29, 2020