What Will the Court Say About Religious Freedom?

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The Court heard oral argument in Espinoza v. Montana Dept. of Revenue on January 22, 2020. That case should predict the future meaning of the Free Exercise and Establishment Clauses of the First Amendment, and announce how many justices on the Court still believe in the separation of church and state.

Montana’s constitution has a Blaine Amendment, which is a no-aid clause saying the government should not aid religion. A few years ago, the government did just that, setting up a program where donors got tax credits for giving money toward scholarships, which could be endowed upon students from both private and public schools, including religious schools. The Montana Supreme Court, however, recognized that the program unconstitutionally funded religion, and so ended the program completely. No more scholarships for anyone.

Montana’s decision is at the core of the justices’ questions about this case. Montana’s side argues since the scholarship program is cancelled, no one is getting scholarships and there is no discrimination. In contrast, the petitioners, who are parents of schoolchildren who received the soon-ending scholarships, insist that the Montana Supreme Court decision violated the federal First Amendment when it ended the scholarships, based on faulty reasoning that their Blaine Amendment was constitutional.

Espinoza is the next step from the Court’s 2017 opinion, Trinity Lutheran Church of Columbia, Inc. v. Comer. In that case, a 7-2 Court held that Missouri violated the First Amendment when it refused tire surface material to Trinity Lutheran because it was a religious institution. Only Justices Ginsburg and Sotomayor dissented in that case. Those two came out swinging against the petitioners from the beginning of oral argument in Espinoza, asking if they really had standing. If the scholarship program has ended, they asked, then who could have an injury? Justice Kagan joined them, stating she was “having trouble seeing where the harm in this case is at this point.”

The petitioners said they had standing because they were injured by Montana’s unconstitutional ruling ending the program that gave them scholarships. The petitioners’ lawyer, Mr. Richard Komer, said “you can’t let the remedy shield the discriminatory judgment” of the court’s believing that the Blaine Amendment did not violate the federal Constitution. If the Montana court had gotten its opinion right, Mr. Komer argued, the parents would still have the scholarship. Gorsuch, in contrast to the other justices, concluded that if the Montana court misinterpreted the law, “we have a case.”

The petitioners argued that the Montana Blaine Amendment was unconstitutional. That would be a big victory in this case, if the Court ruled that no-aid-to-religion clauses are always unconstitutional. Justice Breyer asked a long and repeated question about that, pushing the litigants to tell him if a state that funded public schools always had to fund religious schools. Was that the long-term implication of a narrow ruling in this case? Breyer asked U.S. lawyer Jeffrey Wall, who argued in support of the petitioners’ side of the case, “If I decide for you am I saying that they have to give money to the same amounts proportionate to – to the parochial school?” “What’s the difference between this case, you win, and the same with the public schools, they have to give it to parochial schools too. What’s the difference?” Breyer realized that would be a huge change in the law as it stands today.

Chief Justice Roberts went back to Breyer’s question, asking Montana’s attorney if “the other side’s theory leads to a situation where the funding that goes to public schools, a – a – if – if they prevail, wouldn’t have to go to religious schools?”

Some justices kept arguing that “level down” was what the state court had done, taking away all scholarships in order to keep constitutional peace. Justice Kagan explained why, in the real world, it could be advantageous for the court to level down, because there would be no discrimination. Kagan thinks there is no discrimination, but the petitioners’ lawyer thinks the Blaine amendment is discrimination.

The attorney for the federal government also argued that the Montana court had acted unconstitutionally and should have ruled instead that their constitution’s Blaine Amendment violated the federal Free Exercise Clause. It was only because of the court opinion taking away the scholarships that petitioners were injured.

Justice Sotomayor asked if the attorney wanted all 37 Blaine amendments to be struck. He did not quite answer yes or no to that question. She spoke at length about James Madison’s separation between church and state and the long, non-discriminatory practice of separation.

Justice Kagan, who identified herself as one of the Trinity 7, saw a difference between the two cases. Trinity Lutheran denied a secular benefit while Montana denied a religious one. She thought Montana’s “we don’t want to subsidize religious activity, in particular religious education,” as a “far cry from Trinity Lutheran.” Mr. Wall, in contrast, responded that the Montana court talking about “religiously-affiliated schools” could not be distinguished from Trinity Lutheran.

Justice Alito said that “if they choose to provide scholarships that are available to students who attend private schools, they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church,” and that “it’s hard to see that that’s much different from Trinity Lutheran.”

Justice Kavanaugh got Montana’s lawyer, Mr. Adam Unikowsky, to agree the state could not give scholarships to secular and Protestant schools while denying them to Catholic and Muslim ones. Unikowsky did tell Kavanaugh that the state could give money to secular schools but not to Protestant, Jewish, Catholic and other religious schools because of the core meaning of the Establishment Clause. Kavanaugh pushed back, saying it was odious for the state to exclude people for religious reasons, just as it had done in Trinity Lutheran. Justice Kavanaugh raised again the question whether the Montana court’s decision was discriminatory.

While Montana’s lawyer said their decisions were not discriminatory, Kavanaugh argued the amendments were “rooted in – in grotesque religious bigotry against Catholics.” Unikowsky defended the 1972 Montana constitution as taking a pro-religion separationist stance. He defended a difference between distinguishing among religions and keeping government out of religion entirely. He defended no-aid clauses as helping religion keep its independence from government.

We start with the two Trinity Lutheran dissenters, Justices Ginsburg and Sotomayor. Will anyone join them? Kagan, because she distinguished Trinity Lutheran from Espinoza? Breyer, because of his concern for mandatory funding for parochial schools? And—a more distant maybe—the Chief Justice, whose questions seem focused on keeping the argument clear?

Thomas, Alito, Gorsuch, Kavanaugh, seem likely to vote with the petitioners.

Will we start or end with two justices on Montana’s side? The Court will tell you by June.