The Supreme Court ruled 5-4 on Tuesday that a Montana scholarship program that indirectly provided state funds to religious schools is protected by the Constitution, weighing in on a high-profile dispute over the separation of church and state.
Chief Justice John Roberts wrote for the court. He was joined by fellow conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The court’s four Democratic appointees dissented.
So far, so good. To argue, as the Montana Supreme Court did, that the state couldn't fund scholarships to private religious schools because of religion strikes me as akin to saying the fire department couldn't put out a fire at a church--because of religion.
But the Montana Supreme Court went further:
Roberts wrote that no state is required to subsidize private education, but if it does, ” it cannot disqualify some private schools solely because they are religious"...
The case concerned a scholarship program enacted in Montana in 2015, which provided individuals and businesses with up to $150 in tax credits to match donations to private, nonprofit scholarship organizations...A trial court in Montana sided with the mothers, but the Montana Supreme Court reversed the decision, reasoning that the tax-credit program was in effect indirectly paying for tuition at religious schools, in violation of the state constitution.
The Montana court struck down the tax-credit program in its entirety.
As I read it, the Montana supremes got rid of the tax credit in its entirety so as not to have entanglements with religion, and the US supremes said they had to reinstate it. That just sounds odd to me.
If I have any legal beagles among my readers, please clarify my understanding if I'm mistaken.
The Institute for Justice was involved:
The case began in 2015 when the Montana Legislature passed a tax-credit scholarship program that enabled taxpayers to receive a $150 tax credit in exchange for donating to nonprofit scholarship organizations. These scholarship organizations provide scholarships to low-income students and students with disabilities whose parents believe that an alternative to their public school will best serve their children’s interests. The Montana Supreme Court struck down the program in its entirety because it permitted families to choose religious options in violation of the state’s Blaine Amendment—a provision initially enacted in the late 1800s to discriminate against Catholic schooling. IJ appealed the case to the Supreme Court on behalf of its three clients, including lead plaintiff Kendra Espinoza, a single mother and one of the beneficiaries of the tax-credit program...
In a decision written by Chief Justice John Roberts, the Court held that Montana engaged in religious discrimination when it applied the state’s Blaine Amendment to bar religious options in educational choice programs. It also held that Montana did not cure this discrimination when it struck down the entire scholarship program, including for children attending nonreligious schools, to prevent children attending religious schools from receiving scholarships.
Blaine Amendments were clearly anti-Catholic and hence probably unconstitutional, and if this case is the death knell for them, great. Still, I would disagree with Chief Justice Roberts that ending the scholarship wasn't a good enough solution in this particular case. Why should the state be required to fund a scholarship? What am I missing here?
3 comments:
Disclaimer: I'm not a lawyer. But from reading the opinion, the reasoning doesn't seem to require much technical detail.
The article is a bit short on detail. The opinion is available here.
In Roberts's opinion for the court, p. 21 (p. 24 of the pdf), he says:
"The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status."
In the next paragraph, he explains:
"When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, 'one of those cases' in which application of the no-aid provision 'would violate the Free Exercise Clause,' id., at 468, 435 P. 3d, at 614, the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program."
So the reasoning is that the application of the no-aid provision violates the Federal Constitution. At that point, the Montana Supreme Court should have realized that the provision couldn't be so applied. Once that realization is made, there is no violation of the state constitution to require the court to rule the whole program invalid.
The state is not required to fund a scholarship program. They cannot fund a scholarship program which excludes only religious schools. And since the provision which excluded them violates the federal constitution and is thus invalid, the Montana Court had no reason to eliminate the program. The state legislature could eliminate the program.
I haven't read the entireopinion (it's over 90 pages), but the way I understand the Supreme Court's decision is this:
The Montana Legislature passed a law that provided for the scholarship program. The Montana Supreme Court ruled that the law violated the Montana Constitution due to the inclusion of religious schools in the program, and due to that determination, invalidated the entire law.
The U.S. Supreme Court, in its 5-4 ruling, said that the Montana Supreme Court ruled incorrectly and by applying the Blaine Amendment in the way it did, violated the U.S. Constitution. Therefore, it reversed the Montana Supreme Court's decision, which was to invalidate the law.
Thus, the law is back in effect. The U.S. Supreme Court isn't requiring Montana provide the scholarship, it is only reinstating a law that it say was wrongfully struck.
As Roberts says on Page 24 of the decision: The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status.
Thanks for the clarification :)
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