Supreme court set to further erode the First-Amendment wall between church and state

January 31, 2020 • 10:45 am

In the past few years, federal courts have continued a slow erosion of the church-state wall specified by the First Amendment to the U.S. Constitution, often ruling that religious symbols or monuments can remain on public land, or be flaunted by government agencies, because they’re not really religious but simply part of our “tradition.” Now the Supreme Court is set to speed up that erosion, and I suspect that, given the preponderance of conservative Justices, they will decide to allow more of the religious camel into America’s secular tent.

On January 22, the Supreme Court heard arguments on a “landmark” case—that is, it could be a landmark case if the Court decides to further bash the First-Amendment wall between church and state. This is the case of Espinoza v. Montana Department of Revenue, whose arguments can be seen on the Supreme Court’s blog below (click on screenshot), and are summarized in the New York Times article below that.

This is a complicated case, with the details and issues not at all clear from newspaper reporting (even the NYT), so I had to call the Freedom from Religion Foundation to get clarification (h/t to Attorney Patrick Elliott).

What’s at stake here is whether the government is obliged to fund religious schools, something that’s previously been off limits in most but not all states. This case represents an appeal following a case in Montana, where the state’s supreme court ruled against a scheme that allowed such funding. At the Freedom From Religion Foundation’s website, constitutional lawyer Andrew Seidel summarizes the case so I don’t have to:

The case involves a neo-voucher scheme adopted by the Montana legislature. Taxpayers owe taxes to Montana. They are relieved of that obligation [JAC: not completely relieved; they get a tax break] if they divert the payment to a scholarship organization that funds private education. It’s a dollar-for-dollar match. One dollar to a scholarship fund is one dollar off your taxes, and 94 percent of these scholarships fund private religious education. Montana appropriated $3 million to cover the anticipated shortfall from forgiving those obligations. The Montana Supreme Court struck down this neo-voucher program because the Montana Constitution says that the state “shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or [school].” The court ended the entire neo-voucher scheme, for all private education, religious and nonreligious.

Plaintiff Espinoza brought suit against the state’s ban because she has daughters in a Christian school and want the state program to be maintained to allow them to stay there.

According to another NYT piece, 13 schools were served by these vouchers, 12 of which were religious—and all of the latter were Christian schools. Seidel continues:

Conservative Christian parents want the U.S. Supreme Court to save the program by declaring that they have a right to public funds for their private religious education. If the Supreme Court agrees, it will be overturning a crucial legal principle. Without that principle, states could compel all taxpayers to fund religious worship and religious education. So, yes, this case does threaten religious freedom. Because the right to be free from that compulsion is religious liberty. The right is possessed by every Montana citizen and taxpayer, not just a select segment of Christian parents. That is the right at issue before the Court today.

Well, the law as I read it doesn’t compel taxpayers to fund religious education; after all, you don’t have to contribute to the “neo-voucher” fund. Nor does the state government directly issue vouchers to give money to religious schools. But in effect, the Montana state government was subsidizing religious education, for tax monies that could go to secular schools were diverted, though the program, to private schools, and in Montana that means religious schools. That’s why the Montana courts completely dismantled that program: what was happening was an “indirect appropriation” used for religious purposes: a violation of the state constitution.  The issue might be clearer if the law said that if you gave money to a fund that supported churches, your state taxes would be reduced by that amount. Now that is clearly a violation of the First Amendment. Well, it’s no different with religious schools.

Now half of what the plaintiffs are arguing is that the Montana court decision violates the “equal protection” clause of the U. S. Constitution (which is why this is before the Supreme Court, which has no power to interpret a state constitution). But that argument is bogus because the program that funded both secular and religious schools was eliminated by the state. So the issue of protection has disappeared. If the Supreme Court had its wits about it, it would reject this contention. But many people think that conservatives on the court will accept any argument to further religion.

Besides constituting a government subsidy to religious schools at the expense of public ones, the prospective voucher system also weakened the public school system.

Apparently several other states have voucher programs that support religious schools, but some other states have forbidden them. In a ruling two years ago, the Supreme Court ruled that eliminating such programs actually violated the First Amendment by barring religious schools from participating in programs along with other private schools. And the basis for that ruling is “religious freedom”: the second contention of Espinoza in the Supreme Court case. Apparently religious people think that the First Amendment entitles them to not only have religious schooling for their kids (a right they have already), but also should have government support for that schooling. That, too, seems to be a backwards interpretation of the First Amendment, which is supposed to prevent entanglement of the government with religion.

The religious plaintiffs and their defenders, which of course include the Trump administration as well as various conservative and religious groups, are arguing that freedom of religion demands subsidies to religious schools if there are subsidies for secular private schools, for otherwise, excluding them under a voucher system is discrimination against religion.  But, as New York Times court reporter Linda Greenhouse wrote:

There is so much about this case that is simply backward. The administration argues in its brief that “the constitutional violation in this case is especially egregious because it involves the education of children.” But to the contrary, that’s exactly where the wall of separation has to be maintained with the greatest care. Religious education serves a purpose, inculcating religious values and preserving religious traditions. A parochial school is not just another neighborhood school down the block.

What is the FFRF and secularists worried about? Apparently that if the Supreme Court overturns the Montana decision, then all voucher programs must also include religious schools. As Greenhouse writes:

Certainly, parents are constitutionally entitled to choose a religious education for their children. And under a 2002 Supreme Court decision, Zelman v. Simmons-Harris, states are free to offer parents the choice of using vouchers to help pay for religious education. That was a bitterly fought 5-to-4 decision. The administration now would go further: not only that a state may include religious schools in a voucher program, but that it must include them, if it wants to have a voucher program at all.

But it could be worse than that. It’s not beyond the Court’s purview to confect a ruling that requires all states to allow government funding of religious schools, though it’s not clear how that would work. In other words, they could not only reinstate Montana’s original voucher program, but make it mandatory for every state to have such a program. And that would represent the most serious erosion of the First Amendment.


36 thoughts on “Supreme court set to further erode the First-Amendment wall between church and state

  1. that argument is bogus because the program that funded both secular and religious schools was eliminated by the state. So the issue of protection has disappeared.

    Yeah, it’s hard to see how SCOTUS could demand a State give a tax break to private schools. I could see them saying you either give the tax break to all such schools or none (regardless of the school’s religiosity), but since Montana has already chosen the “none” response, what is there to overrule?

    Still, I think FFRF is right to be afraid. I expect Goresuch, Alito, and Kavanaugh will do whatever legal gymnastics they need in order to force the state to indirectly fund Christian schools.

    1. The courts ain’t our only problem.

      Trump’s Secretary of Education, Betsy DeVos, is a stone-cold fundie who’d as soon dismantle our public education system in favor of private religious academies. And our attorney-general regnant, William Barr, a reactionary Catholic, gave a speech earlier this year at Notre Dame’s law school railing against “secularist and progressive” who “have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values” (as discuss in this recent article from The New Yorker).

      Goddamn chilling.

      1. And if Trump is re-elected, he’ll get to stack SCOTUS. He’ll throw red meat to his evangelical base and dare Republicans to oppose him. No courts will save us.

  2. We now can see the inherent evil of the Trump administration and why he purposely states that there are Obama judges and Trump judges…. If he gets eight years in office think of all the right wing Trump judges he is going to pollute our judicial system with. We may get to the point where decisions are going to have to be made, due to the fact that eventually the judiciary will be a sub section of Fox News,
    using the magic eight ball for all binding legal decisions.

    In the future does anybody see what could be coming, so when our side pays taxes we will have to go to court and say that we do not want my particular tax money to fund a religious school because I have no religion……If Trump and his sycophants want to overturn the constitutional amendment using a carve out, then one day our side will have to have a carve out that states that they can’t use my money to fund a school church. It’s going to get interesting over the next few years, folks.

  3. Bears noting, perhaps, that all five of the Court’s conservative justices — including its lone Proddie, Neil Gorsuch (who now identifies, I believe, as Episcopalian) — are products of Catholic parochial school educations (as is one of the liberal justices, Sonia Sotomayor).

    Would-be American theocrats are intent on dismantling the wall of separation. Question is, whether they’ll be content to try to chip away at it with chisel and mallet or attempt to knock big chunks out of it with a jackhammer.

    A problem we secularists face is that there’s an inherent tension between the First Amendment’s Establishment and Free Exercise clauses — which is why SCOTUS’s religion-clause jurisprudence is among the Court’s least doctrinally consistent. Or, to put it less kindly, it’s a freakin’ mess.

  4. It seems nothing positive comes out of SCOTUS nowadays. And if Trump is reelected and he gets another justice or two, this country will likely become a theocratic plutocracy.

    Canada is looking better and better and 2 hours north is British Columbia which happens to be my favorite province (of those I’ve visited).

    1. I am reading a book right now that explains it this way. That graveyard of liberty, the Supreme Court of the United States. And you can say this about the court since the end of the Civil War.

    2. I am pretty sure Canada allows indirect subsidies to religious schools. At least they did when I lived there some time ago. My friend sent his kids to a Jewish school and got a big tax break for the tuition he paid. He and I shook our heads about it, but my friend certainly wasn’t going to pass it up.

  5. We allow tax deductions for contributions to churches. We can deduct contributions to church controlled schools like Emory and I assume, Notre Dame. Hard to argue that this is any different.

    Maybe it is time to eliminate all deductions to churches and church controlled schools.

    Then there is the question of charitable deductions. Red Cross, Salvation Army, Greenpeace. Why should we support indirectly charities we don’t agree with.

    1. Why should we support indirectly charities we don’t agree with.

      Good questions. I don’t think I fall into the “get rid of it all” camp, but I do think that religious organizations that wish to get the tax deductions that non-religious charities get should have to follow the same financial reporting requirements and limits that other charities follow. That would be a big step in the right direction, though I’m sure other commenters may think it’s not a big enough step.

      Second, I think there’s a reasonable case to be made that primary and secondary schools should not necessarily be covered by the same tax deduction that a charity gets, because education is neither voluntary nor left to the private citizen. This type of education is a service you pay the government to provide. It provides. If you go out and get extra, that’s your business, but not the taxpayer’s obligation. Colleges and universities are different, because neither the federal government nor the state forces a kid to go to those, they are largely funded through tuition and donations (yes, even the public universities*), and not everyone is able or chooses to go to them.

      *I’ll use JAC’s undergrad alma mater as an example. The College of William and Mary is a Virginia state school. It’s FY19 budget was $416 million, of which $49 million was provided by the state. A bit less than 12%. Frankly, I think this is shameful on Virginia’s part. But that’s a conversation for another day…

  6. This atheist has no problem with religious schools getting voucher money. Religious hospitals can get Medicare funds and they seem to do a good job.

    Monopoly education could use a little competition.

    1. The hospital comparison is not an apples to apples comparison. If you receive treatment from a religious hospital, you are not required to learn religious lessons.

      Presumably, these religious schools will be using tax payer money to teach things that are not supported by evidence, but faith. I’m not quite sure if learning false stories on a taxpayer dime really constitutes competition.

      1. I taught at a Catholic school. I converted more people to atheism than I ever did in my whole.

        I grew up going to Episcopal and Catholic schools; they are far from conversion factories one might think.

        Education is a no win scenario for religion. The only place where religion is going to find hermetic solace is homeschooling and then going to Fundamentalist Christian Universities. Then the last remaining Christians in America will look something like Amish people.

        Catholics are seeing the effects of this: they’ve increased their education and their flock is fleeing or becoming ‘Cultural Catholis’. If religion wants to succeed they need to get out of the education business altogether or their ship is going to sink faster.

        1. I never had any doubt about the existence of God until one of the Christian Brothers in my Catholic high school said he could prove it. He gave us what I now recognize as a reasonably competent presentation of Aquinas’s five proofs. I hadn’t thought about the question before, but once he put it on the table, and the question of whether God exists was treated like the question of whether Richard Nixon (who did exist) or Superman (who, as far as I know, did not) existed, I listened attentively to the proofs, said to myself, “that’s it?” and ceased to believe that day.

    2. And those hospitals can deny care for treatments in the name of religious freedom. These include such treatments as abortions, contraception, hormone therapy, fertility treatment, gender-affirming care, or tubal ligations.

      New Trump regulations have expanded rules to allow health care workers who have a “religious or conscience” objection to a medical procedure to refuse to participate in those procedures, even in a tangential way. This means anyone from a doctor to a receptionist (who can refuse to schedule an appointment), from hospitals to pharmacies, can refuse even something like an emergency abortion to save the life of the mother.

      So it’s a little more than oh, they’re hospitals so they do a good job.

      1. I’m okay with it. Tax money, from Social Security and welfare, goes to halal groceries and Christian bookstores and right into church collection baskets.

        We could let parents decide who teaches their children, rather than unrelated bureaucrats.

        1. You seem to have a difficult time separating someones earnings from taxes. You have it all screwed up. If taxes due to pay for schools is diverted to religious schools that is very bad. What you do with your social security is your own business. It is not the same thing and you should probably go back to basic economics class.

        2. You can decide. Nobody here (as far as I know) is calling for the abolishment of private schools. What we’re pointing out is that there is no reason the taxpayer should pay for your choice.

          Your taxes pay for a police force. If you want more security, you are welcome to hire a bodyguard, but the taxpayer won’t be paying for that. The same is true for education: your taxes pay for the basic version of it. If you want more, you are welcome to hire more on your own.

          1. Should police respond to a break-in at a church? Should fire dept? Aren’t those public supports of religion? Does church pay property tax, is it exempt? If exempt, isn’t that reducing dollars going to public education? How does that differ from voucher reduction?

    3. I can understand a rule that says if you use taxpayer money so NYC parents can send their kids to Horace Mann, you have to be able to let them use it so they can go to Cardinal Hayes. What I can’t understand is a rule that says you must use taxpayer money for both or either. In this case, nobody gets any money. What’s the issue?

    4. I agree with one caveat – the religious school must allow students of any (or no) religion to attend.

      I used to live in a place with horrible schools. The poor were stuck while the richer people had options. Vouchers for all private schools are necessary to solve this problem.

    5. I don’t see a problem either, with a program that allows parents to take some of the tax money they would have spent on public school and redirect it to a private school, regardless of whether that private school is religious.

      That’s separate from the matter of this specific case, though. Even if the Montana Supreme Court was wrong in striking down the voucher program – perhaps it depends on the meaning of “sectarian”, since the program was open to all and that doesn’t sound sectarian to me – I don’t think the US Supreme Court can require Montana to start up and run another voucher program. I think they can only rule that Montana can do so, if it wants.

  7. In one form or another, we’ve argued this issue since before nationhood. None of the colonies, with one or two exceptions, had freedom of religion, and colonial taxes when used for education went to teach whatever the colonial religion was. This was a problem then, as it is now.

    Just a quick reminder of the Danbury Baptist letter to Jefferson:

    We specifically were not formed as a Christian nation in re “separation of church and state”, but over the years since
    then, the pressure has built to overturn that separation.

    I do not want federal and/or state taxes used to support religious schools and/or religious education.

  8. What next? Reserving a half dozen seats in congress for church “fathers”? I’d feel that freedom had been set back 300 years.

  9. Don’t Christians realize that if they win then their tax dollars will also be used to fund Islamic schools, where children will likely be taught that Christianity is false.

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