Fundamental Funds: Tax Credits and the Increasing Tension between the Free Exercise Clause and Establishment Clause—Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020)

Under the First Amendment, “[t]he method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse” of that used to protect general freedom of speech. Unlike with speech, the government generally does not participate in religious dialogue or debate, as “the Framers deemed religious establishment antithetical to the freedom of all.” Where the Free Exercise Clause embraces freedom of conscience and worship parallel to the speech provisions of the First Amendment, the Establishment Clause specifically prohibits “state intervention in religious affairs.” Yet courts have long recognized that “there is room for play in the joints” between the Establishment Clause and the Free Exercise Clause.

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