The Big Sky Gets Bigger

The United State Supreme Court ruled Tuesday in the case of Espinoza vs. Montana Department of Revenue.

The names of legal cases are exceedingly numerous and, as in this case, often non-descriptive, making them hard to remember. As someone (presumably a law student) once said, studying law is like memorizing license plates.

But this license plate is worth remembering.

The Court determined that Kendra Espinoza and her fellow parents in Kalispell, Montana, are entitled to the same scholarship assistance for their religious school as are parents who send their children to non-religious schools.

The Big Sky Scholarship program granted a tax credit to anyone who donated to scholarship funds for selected students attending private schools. The Montana Supreme Court ruled that allowing a religious school to benefit from such a program violated the state’s constitution, which proscribes state aid to religious schools. (The Montana court abolished the tax credit program, but the discriminatory reasoning behind it remained an issue. More on that to come.)

In a 5-4 decision, the Supreme Court determined that Montana’s application of its “no aid” policy violated the First Amendment guarantee that “Congress shall make no law prohibiting the free exercise” of religion.

As Chief Justice John Roberts stated, writing for the majority: “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.” Such disqualification, as in this case, is a violation of religious freedom.

The Montana Department of Revenue tried to argue the opposite: that the no-aid law actually promotes religious freedom — both by ensuring that taxes don’t go to religious groups and by keeping the government out of the religious groups’ business.

Indeed, the Constitution’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”) did reflect the Founders’ concern to keep the state out of religious affairs. They did not want to see in the New World any extension of the Old World model of official state religion.

But Roberts said that wasn’t enough to justify blatant discrimination against religious schooling. Or, as he demurely put it, “We do not see how the no-aid provision promotes religious freedom.”

The majority also took note of the historical background of “no-aid” laws, which date back to a spate of legislation in the 1870s, called Blaine Amendments, which were driven by the anti-Catholic fervor of the time. Justice Brett Kavanaugh made the point during oral arguments in January when he condemned the “grotesque religious bigotry” against Catholics which served as background to such laws.

Justices Ruth Bader Ginsburg and Sonia Sotomayor wrote in dissent that the case should be thrown out because the Montana court had already disestablished the tax credit program, and there is no longer any scholarship money to be had either by religious or secular schools.

With that in view, Sotomayor called the majority opinion “perverse,” for “without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”

But legal perversity is often hard to identify correctly. Roberts located it elsewhere:

Refuting the minority point, he observed that the Montana Supreme Court invalidated the program on the basis of a state law which “expressly discriminates on the basis of religious status.” It then barred religious schools from participating in the program. “Then, seeing no other ‘mechanism’ to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program.” Thus, as the discriminatory principle led to the end of funding, it was something that could not be ignored.

The outcome was welcomed by America’s religious community, even as it caused “alarm” among the secular. We join Agudath Israel and the Orthodox Union, along with the Trump administration and various church leaders, who hailed the Court for coming down on the side of religious freedom.

The 5-4 split makes it vulnerable to future reversal, and indicates the precariousness of the majority, and the importance of selecting future nominees to the court whose sympathies lie with religious freedom.

In a broadside against the liberalizing trend of recent years, Justice Clarence Thomas deplored the “wayward” and “overly expansive” approach to the Establishment Clause which has resulted in a “correspondingly cramped interpretation” of the Free Exercise clause.

The Supreme Court, Thomas wrote in his concurring opinion, “has an unfortunate tendency to prefer certain constitutional rights over others,” and the free exercise clause “rests on the lowest rung of the Court’s ladder of rights.”

For the time being, however, the Big Sky — and the skies of other states — will have room enough for Mrs. Espinoza and parents everywhere to choose for their children the kind of education they believe in.

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