Espinoza vs Montana: Dianne Post Weighs in on SCOTUS’ Judicial Activism

June 30, 2020

Dianne Post, Legal Director

Secular Communities for AZ

The Supreme Court decision in Espinoza v. Montana illustrates the height of judicial activism and the length to which this politicized court will go to enshrine their religious philosophy into the law.  The Montana Supreme Court had already held that the program funding vouchers could not stand and overturned it under state law.  So there was no case or controversy for the Supreme Court to Consider.  But the Supreme Court took the case anyway because they had a principle they wanted to instill – that governments must fund religious beliefs. 

Though the program had already been held unconstitutional under the state law, the Supreme Court went ahead and ruled that the no-aid provision in the state constitution discriminated against religious schools and families whose children attended.  But the schools were not even plaintiffs in the suit – only the families who wanted to exercise their religious beliefs at the cost of everyone else’s.  Like those who believe they have a right to refuse to wear a mask (which is not a fundamental right) even though it would support a public health goal for all of the people.  One judge had such sympathy for the single mother who worked three jobs and could not afford the school but he failed to question why a single mother has to work three jobs?  Why doesn’t she get paid a living wage at one job?  If she did, perhaps she could afford the school of her choice.   

The court said the Free Exercise Clause protects religious observers against unequal treatment.  With at least 1,500 different religious sects in the U.S., what observance will be protected?  Praying five times a day?  Praying a rosary?  Killing a chicken? The five-member majority  (Roberts, Gorsuch, Alito, Thomas, Kavanagh) argued that the reasoning wasn’t based on what the school was to do as in the Locke case where he was going to be a priest and proselytize,  but their status as a religious school.

They also astonishingly claimed there was history in the U.S. of not funding the training of clergy but no history of not funding religious schools – except perhaps the entire First Amendment jurisprudence.   Breyer’s dissent outlined a substantial history of exactly that. 

The only solution is to have no voucher system at all.  That is what the people of Arizona told the state legislature by a margin of over 60%. In disregard of the people, the legislature went right ahead and approved more vouchers.  This in spite of the fact that the school “choice” program has been proven to be discriminatory, provide no better education than public school, and have insufficient oversight to prevent graft and fraud. 

The parties in the case did not argue the establishment clause only the free exercise clause.  The court repeated that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. It is interesting that religions want to receive public benefits under neutral government programs.  But when the neutral government program or law gives a benefit to someone else, the religions want to be exempted.  For example, the neutral government law mandating public accommodations says that no business may discriminate against a person because s/he is a gay or lesbian. But religious people don’t want to abide by that neutral law that benefits the LGBT community.  No they even brought a pre-enforcement suit in Phoenix to exempt themselves from having to give other people the benefit of neutral laws.  They should not be able to have it both ways.  If they get to benefit from neutral laws, then they should abide by neutral laws.  If they don’t abide by neutral laws, then they should not benefit. I fear this Supreme Court does not care about this hypocrisy as they didn’t in Hobby Lobby where the corporation in question was heavily invested in the very birth control company they refused to allow their employees to partake.

A lot of ink was spilled over the Trinity Lutheran case where the court ruled that a church who was seeking a grant to resurface a parking lot could not be prohibited where a student seeking a grant to get a divinity degree could in Locke.  Stunningly they decided that a parent wanting a religious education for her child was more like a parking lot than like a divinity student so the reasoning of Trinity Lutheran applied.      

Even more ink was spilled to prove that the country had a tradition of supporting religious schools.  The court’s own story shows that supporting such schools resulted in chaos, fights, divisions, even riots and violence – precisely why the government should stay completely out of religion.  They said well the early fights were against Catholics and we should not countenance such discrimination.  If that is the case, then put the Equal Right Amendment into the Constitution because that discrimination should not be allowed to stand.  Eliminate the Electoral College because that discrimination should not be allowed to stand.  And I could go on.

The court simply cannot see how Montana’s argument that the no-aid provision promotes religious freedom can be. They reject the wisdom of many a religious leader who knows that when government interferes in religion, it won’t be long before it controls it.  When it controls it, it will substitute its own religion for that of the individual and nothing but discord will abound in the land. 

The court says that states do not have to subsidize private education at all – which is what Montana decided when it ended the program. But the court then ordered Montana to do something even though there is no program to end.  The court seems offended that the Montana court ended the program by declaring it unconstitutional rather than the legislature ending it.  But that is what courts do all the time – declare statutes unconstitutional.  Since Marbury v. Madison that has been their job – determine what the law is.  Yet the Supreme Court chastises the Montana Supreme Court for doing just that.  Why?  Because the Supreme Court is laying the groundwork to force states to fund religious schools.   

The Thomas and Gorsuch concurrence argues that the entire First Amendment jurisprudence is wrong and has been for a long time.  According to Thomas, and now he has another adherent, the amendment only applies to the federal government imposing a religion on the states and to nothing else. It does not, according to him, prohibit preferring one religion over another or religion over non-religion.  His real argument is that those who want to discriminate on moral grounds as he defines them should be able to do so citing Masterpiece Cake

After saying he doesn’t believe historical factors should be taken into account, Alito takes historical factors into account by arguing that it was anti-Catholic bias that motivated the passage of the no-aid provisions.  He outlines the history of mob violence and riots between Protestants and Catholics – making precisely the case for the government staying out of religion!  He mentioned that Catholics had to establish their own schools because of using the King James Bible in public schools (which is why no Bible is allowed in school) but he does not mention the establishment of private schools after the Brown v. Board of Education decision to avoid integration or the reason there were religious schools in Reconstruction was because Blacks were not allowed to go to school with whites.

Gorsuch main argument in his concurrence was that he does not see the difference between status and action.  This is a very dangerous and slippery slope as he argues that the religious have the right to act on their beliefs i.e. to refuse service to an LGBT person because it would cause them to “act” in violation of their religion.  Earlier status/action cases have been successfully managed e.g. homosexual behavior (then criminal) versus homosexual status (not criminal); public drunkenness or drunken driving (criminal) and being an alcoholic (status and not criminal).  But Gorsuch is trying to unthread that needle.   He wants to protect religious actions no matter their impact on another person. This bodes ill for the public accommodations cases.

He also argues that the First Amendment protects religious conduct in receiving public benefits.  This is also troubling given cases before the court in which religious entities receiving public benefits seek to discriminate against other religions than their own (Catholic) and other people specifically LGBT people to prohibit foster care and adoption.  Gorsuch argues that no pressure can be put on a religious person to modify his behavior or violate his belief.  In other words, the owners of the Atlanta Motel should have been able to refuse to rent to Blacks because it violated their religion.  Virginia should have been able to prohibit the marriage of Blacks and whites because it violated the religion of those in the legislature.  Or a county clerk can refuse a marriage license to a gay person because it violates her religious belief.  It is nothing but a fig leaf covering discrimination.      

Gorsuch also argued that taking a neutral stance benefits nonbelievers because those most passionate in their beliefs are prohibited from acting out their very strong beliefs whether it’s knocking on your door to hand out religious pamphlets or refusing to work in a plant making ammunition or exorcising children with coat hanger beatings and near drownings because of belief in the devil or dunking women considered witches or prohibiting birth control or abortions because they say so.  He laments that an intent to protect religion may turn into a cudgel to ensure conformity when in fact that is precisely what his side is doing – they have turned religious freedom into a sword rather than a shield. 

In the Ginsburg and Kagan dissent they point out the obvious – there was no case for the court to decide and the court violated Article III that requires a case or controversy before deciding constitutional matters.  The Supreme Court said that a state could decide to have no program at all and that is what Montana did.  So there was no case.  Yet the Court went ahead and ordered them to do what?

In the Breyer and Kagen dissent they argued that the free exercise and the establishment clauses have to be taken together to avoid religiously based discord and yet secure liberty for all faiths and none.  This decision does the opposite by inflicting a rigid application of strict scrutiny on the free exercise clause and entangling government in religion.   

They cover the history of discord and division from the existence of state funding for religious teaching and argue that is why the government has to be strictly neutral. They also argue that from the founding of the country taxpayer supported religious indoctrination was seen as a threat to individual liberty. They pointed out the history of Madison and Jefferson and the Virginia religious establishment law. Jefferson considered it sinful and tyrannical to force a person to support a religion which s/he disbelieves. The  founding generation, including George Washington, Patrick Henry, and John Marshall, supported Virginia’s Assessment Bill not to tax citizens for a particular religion.

The court does not balance the right of those who choose not to fund religious education, elevating the right of those who do. They also point out the foolishness of the “status” versus “doing” argument by asking what in fact does a religious school do but teach religion. That is why the parents have chosen to send their children there.

As they point out, the Montana law did not punish religious exercise – they chose not to subsidize schools that teach religion. Choosing not to subsidize a fundamental right, such as marriage or voting for example, does not infringe on the right.  However this decision may be laying the groundwork for an attack on public funding of public schools by saying that it is harmful for religious schools not to get their fingers into that public taxpayer money.

The Sotomayor dissent was equally scathing.  As she said, the state supreme court had already ended the program on state law grounds and there was no federal question to be answered.  Not only did the Supreme Court violate Article III, it is clear that they are engaged in judicial activism by reaching hard for this tenuous case and turning it into a vehicle they can use to destroy the wall of separation between church and state. 

After wrongfully taking the case, they wrongly decided it. This is the first time the court is requiring a state to provide funds to a church in clear violation of the First Amendment, precedent, history, and the long supported separation of church and state. The Supreme Court held that because the state did not benefit religious exercise, they are compelled to do so. It is the first time the court orders that public funds must be used to pay for religious education. And it is wrong. The government is not obligated to fund a right e.g. I have a right to free speech but the government is not obligated to pay for my megaphone or website, allegedly I have a right to carry a gun but the government is not obligated to buy me one.  But with this decision, because I have a right to free exercise of my religion, the state is obligated to pay for my children’s schooling. As Sotomayor says, the ruling is perverse.  It turns the amendment on its head and mandates the state pay for someone to exercise their religion.  That was never its intent.