Notre Dame professor receives citation in majority opinion

Amid a variety of controversial cases in the Supreme Court’s 2019-2020 term, Espinoza v Montana Department of Revenue stood above the rest as important precedent for the nation’s understanding of public education, religious liberty, and the Establishment Clause of the First Amendment. 

In the case, the Court ruled in favor of low-income parents seeking to access a tax-credit scholarship in order to send their children to private religious schools. Writing for the Court, Chief Justice John G. Roberts said: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Espinoza held that a neutral government program cannot discriminate against beneficiaries solely based on their religious affiliation. The Free Exercise Clause of the First Amendment holds that such governmental behavior is odious to our free republic and its plurality of viewpoints. 

For the University of Notre Dame, Espinoza’s importance is not only its holding in favor of religious liberty, but also the Court’s citation of Notre Dame’s own Professor Vincent Phillip Muñoz. Professor Muñoz is the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at the University of Notre Dame. 

 Professor Muñoz was cited by the Chief Justice’s majority opinion to rebut an argument made in Justice Stephen Breyer’s dissent. In footnote 3 of the majority opinion, Chief Justice Roberts outlines why there is a “meaningful difference” between the government funding religious ministers and religious schools. Speaking with the Rover, Professor Muñoz explains that “Madison has been misunderstood and misused by scholars and jurists.” Professor Muñoz continued, stating that scholars often cite “Madison’s arguments against state-funded chaplains to mean that government must discriminate against religion in all matters of government funding.” 

However, Madison’s vision of the First Amendment was more nuanced. Professor Muñoz elucidates: “What Madison actually argues is that the government should neither privilege or penalize religion as such—that is, that the state should neither impose special religious taxes to fund ministers but also that the state should not disqualify religious institutions or religious individuals from generally available governmental benefits on account of their religious affiliation.” Therefore, Madison’s argument against state-funded religious ministers is not applicable to this case. To make this point, Chief Justice Roberts cited Professor Muñoz’s first book, God and the Founders: Madison, Washington, and Jefferson.

Additionally, Justice Clarence Thomas cited Professor Muñoz in his concurrence. While agreeing with the majority opinion’s outcome, Justice Thomas consistently writes against the incorporation of the Establishment Clause against the states. In the wake of the Fourteenth Amendment, through a legal procedure now known as the “Incorporation Doctrine,” the Supreme Court has slowly incorporated the protections of the Bill of Rights against state power, including the First Amendment. 

However, Professor Muñoz and Justice Thomas believe there is something fundamentally different about the nature of the Establishment Clause, which reads “Congress shall make no law respecting an establishment of religion.” A number of years ago, Justice Thomas began arguing that this clause “pertains to federalism—that is, that the First Amendment was not meant to erect a ‘wall of separation’ between church and state,” Professor Muñoz told the Rover. Professor Muñoz argues against incorporation in his law review article in the University of Pennsylvania Journal of Constitutional Law entitled “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation.” 

Professor Muñoz summarized the argument by saying “the framers of the First Amendment sought to prohibit the new national government from making an establishment of religion and, at the same time, sought to recognize that church-state relations (including matters respecting religious establishments) remained within the jurisdiction of the states.” Justice Thomas cited the article first in his concurrence in Town of Greece, New York v. Galloway (2014) and again this summer in Espinoza

To have one’s work cited at all by our land’s highest court is an amazing feat. To have it happen again — twice, by two difference justices — is an exceptional achievement. 

Professor Muñoz first discovered the Court’s citation when a former student texted him congratulations. The student told him, bewildered by the praise, to read the opinion. Humbly, Professor Muñoz described it as “a very fun surprise” and “quite gratifying.”

He told the Rover that as a political theorist, he “never set out to influence the Supreme Court.” However, he said that he is “pleased that [his] scholarship has been used by Supreme Court justices to correct erroneous interpretations of the Founders.” 

Professor Muñoz highlighted the limited role of academia in society, saying what is “more important is how fellow citizens and neighbors treat one another.” We must always be asking ourselves: do we “respect and treat fairly those with whom they disagree about fundamental matters, including religion?”

Professor Muñoz recently finished a book draft tentatively titled Religious Liberty and the American Founding. Earlier this year, he presented the book’s thesis in the Charles E. Test Distinguished Lectures at Princeton University. Professor Muñoz acknowledged how it might “impact future church-state constitutional cases” and the jurisprudence of Justice Sotomayor and Justice Thomas. 

Upon reflection, Professor Muñoz said: “Like most academics, I sometimes wonder if anyone reads my scholarship and whether all the long nights in the library and the endless writing and rewriting are worth it. It’s probably true that not too many people read my academic work, but if the right people read it, it can have quite an impact.” 

Sean is a junior from Texas studying Political Science with minors in Constitutional Studies and Theology. He can often be heard arguing with friends or enjoying the cultural masterpiece “The Office.” He can be reached at