Disaster at the Supreme Court
By George Kane
Some readers may remember that in my column about the Espinoza v. Montana Department of Revenue case in the November 2019 issue I wrote that if the Supreme Court overturns the Montana decision, “‘Religious freedom’ would be reinterpreted to be a protection only for recipients of government largesse, but denied to federal and state taxpayers.” I considered this case to be the greatest threat to the separation of state and church in American judicial history. So in the morning of June 30, when I received an email from the Freedom from Religion Foundation announcing an adverse decision, I closed down the chess tournament I was watching on the internet and turned on my television. I was sure that there would be wall-to-wall coverage on every news station. I flipped between CNN, MSNBC and Fox news, but I found no coverage whatsoever on any of them.
Until I received the FFRF email, I had retained hope for a favorable ruling. The Montana Supreme Court had found that a tax credit voucher program violated the No Aid Clause of the state constitution, making parents of children in church schools ineligible. The legal theory on which the Roberts decision is based is that the Free Exercise Clause does not permit government to deny to a religious organization a benefit that is available to secular organizations. The argument contends that to do so burdens the free exercise of religion by imposing a penalty on it and violates government neutrality towards religion as well.
This argument had been used by the Court once before, in the 2017 Trinity Lutheran Church v. Comer decision. That case involved a grant to resurface a school playground with recycled tires, which the court ruled did not promote religion. In Espinoza, to the contrary, the government grant would expressly be used to fund religious instruction, which had previously always been considered an Establishment Clause violation. If the Court cared to test this principle by history, it should note that in Virginia’s Statute on Religious Freedom, Thomas Jefferson wrote in 1779 that the use of taxpayer funding to support religion is “sinful and tyrannical.”
The Montana Supreme Court’s ruling voided the entire program, so that the tax credits were not available to any parents, for either religious or secular schools. At no time in the proceedings were benefits that were available to others denied to anyone because of their religious status. The Court should have just dismissed the case, as the complaint was moot. That would be how the court could exercise judicial restraint, which conservatives always extol. The court normally first decides that a violation of the constitution has occurred and orders the state to take care of business in some way that is not unconstitutional. Instead, they told the Montana Supreme Court that they had to reinstate the voucher program to resolve the constitutional problem. The only reason to reverse the Montana decision was to invalidate the No Aid Clauses in 38 state constitutions. This decision is transparent judicial activism.
Justice Sotomayor wrote in her dissent ,“Today’s ruling is perverse. 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.”
Just weeks ago, we were outraged when the Small Business Administration waived a regulation that would have stopped it from providing Payroll Protection Program grants to churches
to pay minister salaries and more. Now there is no doubt that churches will be eligible for every business bailout hereafter. Espinoza only covers school voucher programs, but the same logic will prevail for every other government benefit that is available to non-religious organizations.
Education Secretary DeVos redirected hundreds of millions of dollars of pandemic-relief funds intended for public schools to religious schools. But after Espinoza there is no point in opposing grants and vouchers for only church schools. We must stop all government funding of private schools to avoid making taxpayers foot the bill for religious instruction.