Sorry for the blunt title but I’m angry. The short answer to the question is obviously “a lot.” The adequate long answer would take at least a year to write. So, for now, I’ll have to settle for a few brief statements on the Espinoza school-funding case.

In 2017 the Supreme Court ruled in Trinity Lutheran that the state of Missouri violated the Free Exercise Clause of the First Amendment when it excluded a school run by the Trinity Lutheran church from participating in the state’s school playground resurfacing program. This radical decision, written by Chief Justice John Roberts, set the stage for last week’s equally bad ruling in Espinoza v. Montana. The Espinoza decision, also written by the Chief Justice, declared that the Montana Supreme Court was wrong to dismantle the state’s scholarship program that provided financial assistance to students who wished to attend private schools, both secular and religious. The Montana court did so because it was in violation of their states’ constitution, and they also wanted to avoid the problem of treating religious schools differently than secular ones, so they ended the entire program. This should have been the end of the case, but the Supreme Court nevertheless took it up (it was likely the four conservative justices Alito, Gorsuch, Thomas, and Kavanaugh who granted review).

What makes this case so radical, even though it could have been worse, is that the Court ruled that states must include religious schools an any scholarship programs for private education. Roberts concluded that by excluding religious families and schools from participating in the program the state had discriminated against them in violation of the Free Exercise Clause.

Though shocking, it was not unexpected. The Supreme Court had long ago abandoned the principle of separation, which the conservatives on the Court insist is hostile to religion (it’s not), in favor of an accommodationist approach to religion. This view is not a recent invention of the current court. It has a long history going back at least to the 1980s. In the 1989 Allegheny v. ACLU case, the now retired Justice Anthony Kennedy wrote:

Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage, and the Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion, and so to the detriment, of the religious. (1)

Anything short of accommodating religion is declared hostile to it, as if there were no benign reasons to exclude religion. This rhetoric of hostility to religion is part of a compelling narrative that the Religious Right uses to discredit the principle of separation. It has become a truism in conservative circles.

In the school funding realm, the Court began breaking down the barriers that barred religious institutions from receiving public funds in the 1980s (see Witters and Zobrest). But the real shift began with the 1997 Agostini v. Felton case which proclaimed that facially neutral government programs that provided aid to religious schools via private choice were not in violation of the Establishment Clause. (2) Several cases following this ruling took the logic laid out in Agostini and expanded it even further. (3) These cases established the facial neutrality and private choice duo as the guiding rule for funding cases. To achieve this outcome, these cases were largely aimed at diminishing the power of the Establishment Clause to bar public funding of religion. It has taken even more hits since then.

At this point, the Establishment Clause is so diminished that it hardly matters anymore. In both Trinity and Espinoza Roberts disposes of it fairly quickly. In both he cites Locke’s “play in the joints” concept to justify his brushing it aside. (Espinoza, p. 6) This “play in the joints” between the two religion clauses is built upon the assumption that the two are in conflict with each other, when in fact they are not. Unfortunately, this mistaken view has guided much of the Court’s First Amendment jurisprudence. This misunderstanding of the relationship between the two clauses is the product of a lot of bad history (a topic for another day). For now, just note that this notion makes it easier Roberts to dispose of the Establishment Clause.

To shore up his dismissal of the clause he adds that the Court has “repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” (Espinoza, p. 7) Some may find this statement shocking, but it is the result of many years of chipping away at the power and reach of the clause. With the Establishment Clause out of the way, Roberts proceeds to his main line of reason using the Free Exercise Clause.

There are several important aspects of Roberts’s argument in Espinoza, but here I want to focus on just one aspect of his reasoning since no one else has made this point, which exposes the radical nature of this Court and its disingenuous posturing as a neutral interpreter of constitutional law. One of the keys to understanding Roberts’ ruling is his clever use of language. He conflates the category “religion” with the contents of that category (particular sects/religions). This rhetorical sleight of hand underlies both the Trinity and Espinoza cases.

The Free Exercise Clause, Roberts explains, “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.’” (Espinoza, p. 8) This framing of the clause suggests that the clause is about protecting those who are in this category called “the religious,” thus implying that the clause protects people who are religious rather than protecting people from religious discrimination and tyranny because of either their particular religious beliefs (e.g. denying the Trinity) or because of their religious identity (e.g. Jewish). The above statements quoted by Roberts comes from the Trinity case, which uses a 1993 case as precedent. In Church of Lukumi Babalu Aye, Inc. v. Hialeah the Supreme Court struck down several city ordinances in the South Florida town of Hialeah because they were targeted specifically, albeit not explicitly, at preventing the members of the Santeria religion from practicing animal sacrifice, a central aspect of their religion. (Trinity, p.6) They were targeted because they were members of an unpopular religion, not because they were “religious.”

Two other precedents used in Espinoza further illustrate Roberts’ trick. The first one comes from the landmark Everson case, from which Roberts quotes: “a State ‘cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation’” (Espinoza, p. 8) Note that the examples refer to discrimination against members of a particular religion and/or those who hold specific religious beliefs. The other case is the more recent Lying v Northwest Indian Cemetery Protective Assn in which the victims of discrimination were Native Americans whose particular religious beliefs clashed with the goals of the Forest Service. (Espinoza, p. 8) Again, the members of that Native American tribe were not victims of discrimination because they were religious, it was their particular religion that was the problem. In none of these cases were the individuals or groups targeted because they were religious per se.

In contrast to those cases, the state of Montana did not engage in that kind of prejudiced discrimination. There was no malicious or discriminatory intent by the state when it struck down the program. They didn’t discriminate against any particular religion; all religions were banned. Religion is singled out for special treatment in the state constitutions and in the U.S. Constitution for very good historical reasons, having nothing to do with hostility to religion. In fact, one of the reasons such anti-establishment provisions exist is to protect religion. Neither Montana, nor Missouri, engaged in the kind of “discrimination” that the Religion Clauses forbid. All religions, religious people, religious institutions, etc. are treated equally.

Nevertheless, Roberts chastised the Montana Department of Revenue and the Montana Supreme Court for following their state’s constitutional mandate that prohibits the use of “any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school…controlled in whole or in part by any church, sect, or denomination.” (quoted p. 3) This state constitutional provision is one of many state no-aid mandates which are often called “Blaines” or “Baby Blaines” in honor of the attempted federal constitutional amendment proposed by James G. Blaine in 1875. Blaine’s amendment was narrowly struck down in the Senate, mostly for states’ rights reasons. In the aftermath of this failure over the next 50 years 21 states adopted similar statements in their own constitutions. The claim made by those who oppose these constitutional mandates, and repeated by Roberts, is that they were “’born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’” (Espinoza, pp. 15-16) and as such they are in violation of the Free Exercise Clause and must go. Justice Thomas has been harping on this issue for years. As is typical for him he plays the long game and has hammered this message home by repeatedly mentioning it in his opinions every chance he gets. The history is seriously flawed. Surprise! Surprise!

But in Espinoza it is Justice Alito who took on the task of laying out this history, briefly noted by Roberts in the majority opinion, in his concurring opinion. His recounting of this shameful history, as he sees it, is itself shameful. Lawyers, and Alito is no exception, have a tendency to start with the desired conclusion and then proceed to make the evidence fit that conclusion. His brief essay on this topic is a great example of how NOT to do history. (yet another topic for another day) For those of you who are interested in this controversy a great place to start is Steven K. Green’s “Blaming Blaine.” (4)

While on the subject of Professor Green, I think it worth quoting this excerpt from his pointed critique of the Espinoza case:

There is so much contained in the various opinions in Espinoza v. Montana Department of Revenue that a college instructor could use that one case to teach an entire course about American church-state law: discrimination based on religious free exercise; the private choice exception to the establishment clause; whether the establishment clause is incorporated to the states; the history of the common schools; 19th-century anti-Catholicism; and the origins and meanings of state no-aid provisions (state “Blaine Amendments”). If that instructor used Espinoza to teach an accurate account of those various issues, however, it would be a pretty bad course. (5)

True indeed. However, it would make a great course if it was used as an example of bad constitutional law. Green side stepped addressing all of those issues, except the Blaines, for the same reason I have. The response would be so long that it would try the readers patience, not to mention the amount of effort that would go into such an undertaking. No doubt in the coming months law journals will fill up with responses to the recent spate of Supreme Court cases, and all of these issues will be endlessly debated.

So, what will be the impact of this decision? Many states already have scholarship programs that fund both secular and religious private schools, and this ruling won’t change them, but it does have implications beyond that. In light of this ruling, states are now required to fund private religious schools if they enact any program to fund private education, even in states with Blaines. While the Court didn’t explicitly strike down the “Baby Blaines” they made them ineffectual. So, for now a state can avoid the dilemma as long as it doesn’t create a program for private secular schools. But it will likely inspire some states to create such programs with the intent of helping to fund private religious education, a major goal of many school choice proponents, including Betsy DeVos, the scandalous education secretary. The real danger, however, comes as the Court continues on this path, using the same logic, to further expand access to public funds by religious entities.

Our public education system is already on life support as states have for years inadequately funded public education while at the same time diverting money to charters and private schools, which are mostly religious. The fallout from this ruling will only exacerbate the problem. In addition, it will further exacerbate the inequities in our education system. Opening religious access to public funds will also create the “animosities and jealousies” that the founders were so keen to prevent. (6) Not all religious groups will be able to compete in the scramble for access to the funds. This situation will benefit those religious groups that are wealthier and more common. And what will happen when Muslims, Scientologists, or the Satanic Temple seek to benefit from such programs? To deny them access would be actual discrimination. Will taxpayer be willing to have their tax dollars go to support a religion with which they disagree? One of the most fundamental ideas driving the disestablishment movement during the revolutionary period was the idea championed by Thomas Jefferson in his famous Statute for Religious Freedom, and parroted by pious religious dissenters in Virginia and elsewhere was:

That to Compel a Man to furnish Contributions of money for the Propagation of opinions which he disbelieves and abhors is Sinful & Tyrannical; That even the forcing him to Support this or that Teacher of his own religious persuasion is depriving him of the Comfortable Liberty of giving his contributions to the Particular pastor whose morals he would make his Pattern. (7)

Those who believe that this decision will be a boon for religion, by which they mean Christianity, might want to revisit the reasons that so many religious dissenters pushed for the separation of church and state in the early Republic. Taking money from the state, even indirectly, has never been good for religion as they repeated in their petitions, essays, and pamphlets. In response to a future proposal for a general assessment (a tax to support ministers of different denominations as opposed to a single denomination), Virginia’s Baptists wrote in the Virginia Gazette:

The consequence of this is, that those whom the State employs in its service, it has a right to regulate and dictate to; it may judge and determine who shall preach, where they shall preach, and what they must preach. The mutual obligations between preachers and the societies they belong to, should this be the case, must be evidently weakened; yea, farewel [sic] to the last article of the bill of rights! Farewel to ‘the free exercise of religion,’ if civil rulers go so far out of their spheres as to take the care and management of religious affairs upon them. (8)

If those religious schools are receiving public funds, will they then be required to adhere to the same rules and regulations secular public schools do?

The Right has played the long game and invested in creating a conservative legal infrastructure complete with think tanks, advocacy groups, legal organizations, and law schools meant to change the legal and political culture of this nation. They invested in the courts and that effort is paying off, maybe not as much as they would like, but by capturing the courts they are well on their way to achieving their goals even as they are out of step with the majority in this country. Trump just appointed his 200th federal judge, many of whom are demonstrably not qualified. (9) This is important because most cases are settled by the lower courts, and the Supreme Court takes only a small percentage of the cases appealed to them. These appointed judges are ideologically vetted for their support for right-wing causes, rather for their impartiality. (10) Now is the time for the rest of us to take the courts seriously. If you think voting doesn’t matter, you’re wrong! If you’re thinking about not voting, or voting for a third-party candidate, think of the courts.

Don’t let some of the recent headlines fool you (e.g. “Supreme Court hands down major decision reaffirming abortion rights in Louisiana case” and “The Supreme Court Just Ruled 5–4 to Protect Abortion Rights”). (11) The victories for DACA recipients and women’s rights are something to be celebrated but they are, nevertheless, temporary victories. (12) The ruling in Bostock v. Clayton County was a more solid win, but Justice Gorsuch, who along with the Chief Justice, was moved not by a sudden appreciation for LGBTQ rights but instead by his textualist principles. None of these decisions should be taken as an indication of the reasonableness of the Roberts Court. Roberts is known for being politically astute and for his “death by a thousand cuts” approach to judicial rulings. The strategy is meant to avoid those shocking headlines which might mobilize the left or further damage the reputation of the Court. Yet, he aims to achieve the same ends that his fellow conservative colleagues share. The result has been a slow but steady march to the far right.

1. See Allegheny v. ACLU at https://www.law.cornell.edu/supremecourt/text/492/573
2. Ellen M. Wasilausky, “See Jane Read the Bible: Does the Establishment Clause Allow School Choice Programs to Include Sectarian Schools After Agostini v. Felton?” Washington and Lee Law Review 56 (1999).
3. See Mitchell v. Helms (2000) and Zelman v. Simmons-Harris (2002)
4. Steven K. Green, “‘Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” First Amendment Law Review, 107 (2004).
5. Steven K. Green, “Symposium: RIP state ‘Blaine Amendments’ – Espinoza and the ‘no-aid’ principle.” SCOTUS blog. https://www.scotusblog.com/2020/06/symposium-rip-state-blaine-amendments-espinoza-and-the-no-aid-principle/
6. James Madison, “Memorial & Remonstrance Against Religious Assessments,” Founders Online. https://founders.archives.gov/documents/Madison/01-08-02-0163
7. Jefferson wrote: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry those temporal[ry] rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependance on our religious opinions…” https://www.monticello.org/site/research-and-collections/virginia-statute-religious-freedom

This particular quote comes from the petition from Northumberland County in Virginia during the fight over the general assessment bill (November 28, 1785). Jefferson’s phrase was also repeated in a petition from the Baptist Association (November 3, 1785): “That to compel man to furnish contributions of money to support that Religion which they disbelieve and abhor * sinful and tyrannical that to compel even * to support the Gospel who profess to believe it, is inconsistent both with the * and independent Spirit of the Christian Religion, and the custom of the Primitive Church.” (see http://www.virginiamemory.com/collections/petitions)

8. Virginia Gazette (March 28,1777).
9. https://www.politico.com/news/2020/06/24/senate-confirms-200th-judge-under-trump-337938
10. https://rewire.news/article/2020/06/24/trumps-200th-judge/
11. https://abcnews.go.com/Politics/supreme-court-hands-major-decision-louisiana-abortion-case/story?id=71254751 and https://www.motherjones.com/politics/2020/06/june-medical-services-russo-supreme-court-abortion-ruling/
12. Department of Homeland Security v. Regents and June Medical Services v. Russo respectively.