A Promising Day for Religious Liberty at the High Court

Democrats Kavanaugh confirmation hearing protests set-up Trump biased judges political scotus cross peace crimes victimes illegal sanctuary liberty religious courtChief Justice John Roberts is a busy man. He didn’t wrap up his first day of presiding over the third Senate impeachment trial in history until shortly after 2:00 a.m. on Wednesday. By 10:00 a.m., he was attending to more-ordinary business as oral arguments began in the most important religious-liberty case before the Supreme Court this term, Espinoza v. Montana Department of Revenue.

In 2015, Montana set up a tax-credit system through which taxpayers could contribute $150 to a scholarship fund for children attending private schools and would then be reimbursed dollar for dollar. The Montana supreme court scrapped the program on the grounds that it violated the state constitution’s Blaine amendment, which forbids public funds from aiding religious schools. In response, a lawsuit was filed by Kendra Espinoza, a single mother of two who had benefited from the program.

“This case asks whether the federal Constitution allows the wholesale exclusion of religious schools from scholarship programs. It does not. Yet, Montana’s Blaine Amendment requires that exclusion,” Espinoza’s lawyer, Richard Komer, argued before the Court on Wednesday. “If the Court had shut down the program because it included Muslim schools or African-American schools, there’s no question that would be unconstitutional.”

Komer pointed to the Court’s 2017 decision in Trinity Lutheran, which held by a 7–2 majority that the state of Missouri could not exclude religious schools from a state program meant to fund the resurfacing of playgrounds at secular private schools. “As Trinity Lutheran made clear, the rule is religious neutrality,” Komer said.

Justices Alito and Kavanaugh appeared to agree. The state isn’t required to “fund private education at all, but 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,” said Alito. “That’s the simple argument. And it’s hard to see that that’s much different from Trinity Lutheran.” Justice Kavanaugh said that Blaine amendments were “certainly rooted in grotesque religious bigotry against Catholics.” Adam Unikowsky, arguing for the state of Montana, said that wasn’t a problem because Montana re-adopted the amendment at its 1972 convention in order to protect religions from being coerced by the state.

Justice Elena Kagan, who joined the majority in Trinity Lutheran, argued that Espinoza was “a far cry from” that case, because the Montana scholarship program would subsidize religious activity and education, rather than merely providing a religiously neutral benefit such as resurfacing a playground.

On the whole, the liberal justices focused most of their questioning on the argument that the previous beneficiaries of the program, such as Espinoza, didn’t have standing to sue because the program no longer exists and thus no students from religious or secular schools may benefit from it. “These parents are treated no differently than parents of children who are going to secular private schools, so where is the harm?” Justice Ruth Bader Ginsburg asked.

Justices Kagan and Sonia Sotomayor appeared to agree with Ginsburg, but Chief Justice Roberts later exposed the problem with her question by posing his own hypothetical: What if, he asked, a state legislature decided to shut down parks and pools because a higher percentage of African-Americans benefited from them?

“That wouldn’t be good under your view, would it? Because they’re shutting down the whole program?” Roberts asked. “How is that different than religion, which is also protected under the First Amendment?”

The difference, the lawyer for the state of Montana argued, is that there are “principled reasons, deeply rooted in national tradition dating back to Madison, [why] we have a preference to not fund religious activities — not prohibit it but not fund it.”

Justice Roberts and Justice Stephen Breyer both expressed concern about whether a decision in favor of Espinoza could lead states to be compelled to directly fund private religious schools simply because they fund public schools. So while Roberts seemed skeptical of Ginsburg’s contention that Ms. Espinoza lacked standing to sue because the program had been shut down, it remained unclear how he or Breyer would vote in the case. Religious liberty had a promising day before the Court on Wednesday. But we likely won’t know the ultimate outcome of the case until early this summer.

Reprinted with permission from - National Review - by John McCormack

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Elizabeth Tomasi
2 years ago

Thank you to my brother-in-law, Donald Tomasi, for sending this fascinating and promising article. Guess we have to wait until June,2020 to hear an answer from the Supreme Court…one more outcome for which to pray!.

Ed J
2 years ago

This goes to the issue that a lot of people simply cannot read the English text in the Constitution that is clearly stated and unequivocal in meaning. How so many people come away with a distorted understanding of what the Constitution says is amazing. For example, the Constitution states we have freedom OF religion, not freedom FROM religion. Yet, misguided folks rant and rave if somehow some religious related activity is allowed to exist. For example, there are many schools affiliated in some fashion with a number of different religious groups. These self-righteous folks demand that no tax money be spent educating the children attending these private schools, despite the fact that these schools often save the state money by their very operation and that the parents of children attending such schools ALSO pay taxes which are then denied them for their children’s education. True equality would be if the state provides funding for each student, regardless of which school (public or private) the student chooses to attend.

Larry Pollard
2 years ago

Tell me again why is there a Liberal and conservative side ? Are they not there, but to interpret OUR Constitution ? It’s rare for a liberal to side with the conservatives, yet quite often do you hear of the conservative siding with the liberal side.

Ed J
2 years ago
Reply to  Larry Pollard

It is often so very simple. Conservatives generally base their arguments on facts and how the real world truly works. Liberals often base their arguments on fantasy, opinion or how they “wish” things to be, and oblivious to how the real world works. For example, take the immigration issue. Fact: a person either IS a citizen or IS NOT a citizen — PERIOD! Yet, liberals will dance around all over the landscape espousing a host of reasons, etc., which totally fail to acknowledge the foundational fact of citizenship as stated in the previous sentence.

Judy Crawford
2 years ago

Good to know

Carol L. Baril
2 years ago

If they vote against Espinoza, does that mean any school choice voucher program eliminates religious education too? Sounds like a slope to eliminate religious education all together, or better yet, Christian education. Pray this goes the way of Espinosa!

2 years ago
Reply to  Carol L. Baril

No it would just eliminate public funding of religious education and not just Christian education but all religious education. You do know that there are other religions or am I wrong?

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