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.