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“States can’t cut religious schools out of programs that send public money to private education, a divided Supreme Court ruled Tuesday.” AP News
“By a vote of 5-4, the justices ruled in Espinoza v. Montana Department of Revenue that the state court’s interpretation of the Montana constitution violated the U.S. Constitution, which protects the free exercise of religion. States are not required to subsidize private education, Chief Justice John Roberts explained in his opinion for the majority. But if they opt to do so, they cannot exclude religious schools from receiving those funds simply because they are religious.” SCOTUSblog
The right applauds the decision as a victory for religious freedom and school choice.
“In Justice Sotomayor’s words, the Montana supreme court ‘remedied the only potential harm of discriminatory treatment by striking down the program altogether.’ But consider a hypothetical situation in which a state constitution bans aid to racially integrated private schools, and when a lawsuit tries to force a private-school aid program to include integrated schools, the state’s supreme court in that very lawsuit just shuts down the entire thing for the stated legal purpose that it could not see a penny go to an integrated school. That is precisely the sort of massive-resistance tactic the Court repeatedly disfavored in the 1960s, yet Sotomayor and Ginsburg would sanction it here.”
Dan McLaughlin, National Review
“Funds or vouchers earmarked for school choice programs are awarded to parents, not schools. Parents are then free to take the funding to schools of their choice. Arguments about funding religious institutions are rightly never raised when food stamp recipients spend these at Christian co-ops, when Pell Grant scholarships are spent at religiously affiliated universities, or when Medicaid funds go to religiously affiliated hospitals. There’s no reason why schooling should be treated differently…
“[Furthermore] Wealthy families have always had the means to exercise school choice by moving into the affluent neighborhoods offering good public schools or by paying for private education. School choice vouchers, then, overwhelmingly benefit low- and middle-income families who may be assigned to low-performing schools or ones that are not the best fit for their children, based only on ZIP code. Choice is especially popular among minorities.”
Satya Marar, Washington Examiner
The solicitor general of Oklahoma writes, “Yesterday’s decision articulates an unmistakable rule of law: When the government creates a benefit program, it cannot seek to exclude persons and institutions of faith merely because they are religious… [Espinoza cleared] away any doubts about the Supreme Court’s willingness to protect people of faith from discrimination…
“This is especially true when the source of a state’s discrimination is a Blaine Amendment, which (for the first time) a majority of the court recognized has ‘checkered’ origins and a ‘shameful pedigree’ of hostility to specific religious groups…
“Over half a million students participate in school choice programs now protected by Espinoza. Many of these students come from families that are too poor to afford their current school without financial assistance, and some receive much needed support for their special needs from participating in these programs. Under today’s ruling, states can no longer punish any parents for choosing schools that teach the same values that they teach at home.”
Mithun Mansinghani, SCOTUSblog
“Justice Samuel Alito wrote a concurring opinion of particular moral and historical weight… He explained that the Montana state constitutional amendment at issue, which lower courts had used to invalidate the school-choice program, had its roots in a fiercely anti-Catholic national movement in the 1800s that included major involvement by the Ku Klux Klan…
“Called ‘Blaine amendments’ after their powerful congressional sponsor, these state constitutional provisions were adopted in response to a wave of immigration of mostly Catholic refugees… As most public schools at the time included daily readings from the King James Bible, embraced by Protestants but not Catholics (or Jews), Catholics who objected to Protestant ‘indoctrination’ set up parochial schools of their own. As anti-Catholic riots swept the country, Catholic schools became particular targets…
“The court’s job is not to determine the morality of cases before them, but to apply the Constitution as written. Still, when the Constitution and simple moral grounding both argue in favor of the same result, the court’s decision to that effect is particularly welcome.”
Quin Hillyer, Washington Examiner
The left sees the decision as a violation of the separation of church and state, and worries that it will lead to adverse consequences.
The left sees the decision as a violation of the separation of church and state, and worries that it will lead to adverse consequences.
“Churches are given an extraordinary number of tax benefits… ‘Churches don’t pay property taxes on their land or buildings. When they buy stuff, they don’t pay sales taxes. When they sell stuff at a profit, they don’t pay capital gains tax. If they spend less than they take in, they don’t pay corporate income taxes. Priests, ministers, rabbis and the like get ‘parsonage exemptions’ that let them deduct mortgage payments, rent and other living expenses when they’re doing their income taxes. They also are the only group allowed to opt out of Social Security taxes (and benefits)’…
“As part of this exceedingly hands-off approach, church-affiliated institutions were not, in the past, eligible to participate in some government programs… The wall of separation between church and state never really existed. But for a while, there was a fairly high fence. It protected religious institutions from entanglements with the government, and vice versa… [This is] a shotgun marriage between church and state.”
Kevin Welner, Washington Post
“During the 20th century, America evolved away from the old shared assumption that public schools should teach ‘general principles of Christianity.’ In the 1960s, for example, the Supreme Court recognized even bland prayer was controversial… A new principle developed that any teacher-led religion represented ‘excessive entanglement’ between church and state…
“Today, therefore, instead of worrying about taxes funding controversial religious ideas held only by one denomination, we acknowledge the fact that funding any religious idea is inherently controversial, given the diversity of American religion and nonreligion. We also no longer talk about ‘sectarian’ ideas. But all that has done is broaden the basic provision enshrined long before the 1870s: American public education should use tax dollars to teach children how to read, write and become better citizens, not to teach them any religious ideas.”
Adam Laats, Washington Post
“As Justice Stephen Breyer wrote in dissent, [James] Madison famously opposed a Virginia bill that would have taxed residents to support teachers of ‘the Christian Religion,’ condemning it as ‘a signal of persecution’ that violates religious liberty. Montana’s Christians-schools-only program illustrates how states that fund religion wind up funding the faith shared by a majority of residents. Breyer, quoting Madison, noted that state funding of a particular religion may ‘destroy that moderation and harmony’ among different faiths that is a hallmark of America’s religious tolerance…
“What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs? In short, too bad.”
Mark Joseph Stern, Slate
“The question now is how far this project will go… The Supreme Court established in Christian Legal Society v. Martinez (2010) that the government may refuse to subsidize organizations that exclude certain individuals — even if that discrimination is motivated by religious faith. But Martinez was a 5-4 decision, and one of the justices in the majority, Justice Anthony Kennedy, has since been replaced by the much more conservative Justice Brett Kavanaugh. So it is far from clear that the current Supreme Court will allow the government to deny subsidies to anti-LGBTQ schools, or to other religious organizations that discriminate.”
Ian Millhiser, Vox
Some argue that “It is important to remember that the scholarship goes to the child, and that the child’s family then decides which school best meets the needs of individual students. Schools that participate in these programs must meet academic requirements established by the state or locality… Ms. Espinoza chose Stillwater Christian School not because she wanted to advance its interests but because she wanted a school that fit her daughters’ needs and was a place where they could thrive. They — and other students who stand to benefit from opportunities opened up — are the true winners.”
Editorial Board, Washington Post
The libertarian take
“As education scholar Matthew Ladner recently pointed out, ‘public schools in [the 19th century] were pervasively religious, but ‘non-sectarian,’ meaning vaguely Protestant.’ The Blaine Amendments were therefore used to favor the majority religious group, Protestants, over religious minorities such as Catholics (and Jews), by barring funding to their ‘sectarian’ schools. Some of American history’s most odious groups, including the Know-Nothings and the Ku Klux Klan, warned of a ‘Catholic Menace’ and even fought to outlaw private schooling altogether in states like Oregon…
“The US Supreme Court’s decision in the Montana case marks another step toward erasing the stain of anti-Catholic hatred written into the laws of many states… The ruling built on precedent. In a 2002 case, the Supremes had held that voucher programs can be legally used to pay for religious schools. That’s because the funding goes to families, which can then choose to send their kids to religious or nonreligious private schools. It’s the same reason why publicly funded Pell Grants can be used at private universities with religious affiliations without violating the Establishment Clause.”
Corey DeAngelis, New York Post
“You don't have to adopt many conservatives' unduly narrow interpretation of the Establishment Clause (which they interpret as barring only the establishment of an official church or as directly coercing people to take part in its services) to recognize that nondiscrimination is not establishment. Even if government endorsement of religion also qualifies as an ‘establishment,’ merely treating religious institutions the same as secular ones does not count as such an endorsement. For example, no one claims that the government endorses religion when it gives legal effect to religious wedding ceremonies on the same basis as purely secular ones.”
Ilya Somin, Volokh Conspiracy
