Few topics arouse the passions of Americans like god and government and whether the twain shall meet.
This was demonstrated by the many “friend of the court” briefs filed ahead of tomorrow’s hearing at the US Supreme Court, where the justices will consider arguments on a major case that could have implications for the separation of church and state.
A flurry of 44 filings—a number rivaled only by similarly contentious cases on inflammatory issues like gun rights, abortion, or immigration—urged the court to consider the cultural consequences of the matter. The justices’ decision will either hamper religious freedom or erode the precious barrier between church and state, depending on which side the brief writers support.
The case, Espinoza v. Montana Department of Revenue, arises from a 2015 state tax credit program for private education and a dispute about applying the awards to religious schooling. After the program was enacted, Montana announced a rule barring the credits for use at nonsecular schools, an action that was challenged on constitutional grounds by three struggling mothers who benefited from the credits.
The named petitioner, Kendra Espinoza, is a single mother working two janitorial jobs. She sends her daughters to private religious schools because she likes the emphasis on Christian values, her Supreme Court brief explains. Last year Montana’s Supreme Court invalidated the student aid program as a result of her suit, finding the tax-credit scheme illegally allowed funds to be used at religious schools.
So now there’s no disparity to speak of, not between parents seeking tax-credits for private religious schools or for secular institutions. Because there’s no program.
Before the court
Espinoza’s lawyers will argue before the nation’s highest court that terminating the program doesn’t solve the problem of Montana’s discriminatory law, specifically the problem of a “no aid” clause that bars the state from using tax dollars to fund religious schooling.
This “no aid” rule, they say, violates three federal constitutional guarantees—the free exercise clause’s right to religious practice; the establishment clause’s promise that the government will favor no religion; and the equal protection clause’s pledge of similar treatment for all under the law. They say the state of Montana must “show neutrality—not hostility—toward religion in student-aid programs.”
Espinoza’s attorneys note, too, that the “no aid” provision has controversial roots. In the mid-19th century, about 10 states passed laws banning the use of public funds to support sectarian private schools. Known as “Blaine amendments,” the dictates stemmed from anti-Catholic bias and were designed to prevent state funding of the sect’s educational efforts.
But Montana tells the Supreme Court that the disputed state provision, on the contrary, creates a structural barrier between religious schools and government that benefits spiritual groups and supports the Constitution. It claims the “no aid” clause promotes religious freedom rather than inhibits it.
And holy smokes have folks chimed in!
Matters of debate
Dozens of amicus briefs filed by a slew of groups urged the justices to handle this case with care. Educators of public and private schools, legal scholars, parents, religious organizations, the federal government, think tanks, states, and politicians are among those who have opined.
Interestingly, spiritual leaders are not all in agreement about how the case should shake out. For example, the Catholic Association Foundation in its high court brief says Montana’s law is unconstitutional. The Association of Montana Rabbis, meanwhile, supports the state, arguing that the only way to protect all religions is to bar government funding of any religious schools because demographics dictate that benefits will disproportionately reach the dominant Christian institutions, disadvantaging minority faiths.
The federal government supports Espinoza and the religious freedom fighters. It tells the high court in its filing that Montana is deflecting from serious constitutional questions by claiming that there is no violation to consider because there is no program left to violate anyone’s rights, writing:
Montana emphasizes that the state court has now terminated the named the tax-credit program in its entirety as a remedy for the violation of the no-aid provision, and it claims that the remedy means that it has not discriminated on the basis of religious status at all. Montana focuses on the wrong link in the chain. Regardless of whether the remedy discriminates on account of religion, the no-aid provision certainly does, by subjecting religious schools alone to a special disability.
There’s some reason to believe the high court will agree with Espinoza and her high-powered allies, at least based on a 2017 ruling in a separation of church and state case that shows even child’s play can get serious when god and government are involved.
Scratches and bruises
Chief justice John Roberts wrote the majority opinion in that case, siding with a religious institution in Trinity Luther Church v. Missouri Department of Natural Resources (pdf). That case stemmed from a church playground application for state program funds to repave the location for safety reasons. Monies were denied because of the location’s religious affiliation and the high court chided Missouri. Roberts, on behalf of six other justices, wrote:
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion…The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.
Only justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, arguing that the playground paving case was part of a very serious larger crusade by some American religious organizations to erode the separation of church and state. The two dissenting justices may also find themselves the lone holdouts in Espinoza’s case, in view of the recent legal history and what with all the clamor surrounding the upcoming matter.
Eighteen other states have tax-credit programs resembling Montana’s, so they will be watching closely, in addition to all the religious, legal, cultural, and educational groups eyeing the case for its broader implications. The justices are expected to issue opinions by late June.