SCOTUS Allows Subsidies for Religious Schools
A seemingly obvious result that isn't.
News accounts of yesterday’s Supreme Court decision make it seem straightforward. But the hodgepodge of overlapping opinions shows it to be anything but. Indeed, it’s nearly impossible to even come up with an accurate headline to describe the ruling.
The Washington Post goes with “Supreme Court says states that subsidize private education must include religious schools,” which gives the impression of something that seems like a no-brainer. The New York Times goes with “Supreme Court Gives Religious Schools More Access to State Aid,” which makes it sound like legislating from the bench, which it was not. Neither story, interestingly, is on the front page of their respective websites.
SCOTUSBlog’s Amy Howe (“Court rules that religious schools cannot be excluded from state funding for private schools“) summarizes the bizarre complexity of the ruling.
In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools.
Today the U.S. Supreme Court threw out the Montana Supreme Court’s decision. 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.
Again, the outcome would seem obvious. There’s a long line of cases requiring equal treatment for secular and religious institutions. Why was it only 5-4?
The Constitution’s free exercise clause protects people who are religious from being treated unequally, as well as from laws that discriminate based on religion, Roberts began. Three years ago, in Trinity Lutheran Church v. Comer, Roberts explained, the court “distilled” its decisions interpreting the free exercise clause into the “unremarkable” conclusion that, when the government denies an otherwise available benefit solely because of the would-be recipient’s religious nature, the denial is subject to the most stringent standard of constitutional review, known as strict scrutiny.
In this case, Roberts continued, the “no-aid” provision in Montana’s constitution clearly prohibits religious schools (and parents who want to send their children to those schools) from receiving funds through the tax credit program solely because the schools are religious. Therefore, it too is subject to the “strictest scrutiny,” and it can only survive if it is “narrowly tailored” to promote “interests of the highest order.” Roberts rejected each of the state’s arguments about the interests that the no-aid provision purportedly promoted. The provision cannot be justified as an extra protection against the separation of church and state, Roberts observed, because the U.S. Constitution’s establishment clause – which prohibits the government from establishing an official religion or favoring one religion over another – already serves that purpose. And although the Montana Department of Revenue asserted that the no-aid provision actually promotes religious freedom – both by ensuring that taxes don’t go to religious groups and by keeping the government out of the religious groups’ business – that is not enough, Roberts wrote, when the provision infringes on the schools’ and parents’ rights to exercise their religion. Finally, Roberts dismissed the state’s suggestion that the no-aid provision promotes the state’s interest in public education as unconvincing, noting that the provision only bars aid to religious schools, not to all private schools.
Again, that seems rather obvious. All five conservative Justices signed on to it, although Thomas offered a separate concurrence which Gorsuch joined and Alito and Gorsuch also filed their own concurrences joined by nobody. Thomas’ is almost cartoonish—arguing that the Establishment Clause prohibits the founding of a state religion and nothing more—and Alito’s rather tangential.
The dissents are rather strange.
Justice Ruth Bader Ginsburg dissented, in an opinion joined by Justice Elena Kagan. She stressed that the Montana Supreme Court’s decision invalidated the entire tax credit program, so that no one is receiving any money for private schools – whether they are secular or religious. Therefore, Ginsburg contended, no one is being treated differently based on religion, and there is no constitutional problem.
That makes no sense whatsoever. The legislature created the program and the state court struck it down. The majority, correctly in my view, contended that the provision of the state constitution that caused it to be struck down is in violation of the First Amendment to the US Constitution and is therefore moot. Ginsburg sidesteps that question entirely, arguing that the case itself is moot because of what the state court did. It’s just bizarre.
Justice Stephen Breyer filed a dissenting opinion that Kagan joined in part. He warned that the “majority’s approach and conclusion in this case” “risk the kind of entanglement and conflict” that the establishment and free exercise clauses “are intended to prevent.” “If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom,” Breyer wrote. Breyer criticized what he characterized as the majority’s bright-line rule that “all distinctions on the basis of religion” “are similarly and presumptively unconstitutional,” as well as the questions that Roberts left open about the limits of today’s ruling – for example, will the state be required to fund religious public schools?
Um, no? Indeed, “religious public schools” would rather clearly be an establishment of religion, which six decades of precedents have prohibited. I see the majority’s ruling here no different than previous rulings which, for example, have held that religious clubs have to be given equal treatment as secular ones.
Justice Sonia Sotomayor filed her own separate dissent in which she described the majority’s decision as “perverse.” “Without any need or power to do so,” she wrote, the Supreme Court “appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.” Although the Supreme Court has acknowledged that the government cannot bar the free exercise of religion, she continued, that “has never meant that a majority could use the machinery of the State to practice its beliefs.”
Her rationale is no different from Ginsburg’s, so it’s not obvious why she wrote separately. But, again, the Court isn’t requiring the state to do anything. The legislature created a fund that treated private schools (most of which are religious in Montana) the same regardless of religion. The state court overturned it and the Supreme Court is reversing the state court and thereby reinstituting the expressed will of the people.If the legislature wanted to end the program of its own accord today, it would absolutely be within its rights to do so.
In a separate SCOTUSBlog analysis (“RIP state “Blaine Amendments” – Espinoza and the “no-aid” principle“) law professor Steven Green , who filed an amicus brief on behalf of the losing side, chides the Court for its messiness.
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.
Heh. He continues.
Once again, a Supreme Court majority has gone to the edge of the cliff, ready to push the concept of no aid to religion over the side but stopping short. Even though the concept still exists (barely) in the form of making a distinction based on the “use” of tax funds rather than on the “status” of the recipient of those funds, the rule prohibiting government financial support for religion is all but dead. As Justice Ruth Bader Ginsburg observed in her dissent, even though the majority did not reach the ultimate conclusion, its opinion “seems to treat the [state’s] no aid provision itself as unconstitutional.”
Well, no. It subjects it to strict scrutiny, treating discrimination on religious grounds the same way it does discrimination on grounds of race or sex: permissible when it is “narrowly tailored” to promote “interests of the highest order.”
The rest of his argument, which is somewhat long, is interesting. Essentially, he argues that the states were long free to make their own decisions on these matters and that the Supreme Court has slowly clawed these back through an ever-expanding (but sometimes messy and unclear) view of the federal Establishment Clause. He also takes a dive into the anti-Catholic history of many of the no-aid laws, also a subject of great interest to Alito’s concurrence, but dismisses it as behind modern versions.
James, this ruling most emphatically goes directly against those six decades of precedents.
Montana legislators want to subsidize Christian schools, but realize that would be a bridge too far, even for the Republicans on the Supreme Court. So they came up with this cockamamie scheme wherein, say, James Joyner could give the cost of his kids tuition to a “charity”, who in turn could give a “scholarship” to the Joyner kids. Joyner then deducts his “donation” dollar for dollar from his tax bill. The Montana Supreme Court saw this farce for what it was, but the Republican Supreme Court Justices play the usual game of pretend. Sotomayor had it right:
I’ve said it before and I’ll say it again. One of the things I find most despicable about Republicans is their willingness to stand up and blatantly lie about their motives. “This isn’t about state funding of Christian schools!”, “We are only concerned about the health of the mother!”, “We were totally unbiased when we closed down polling places in black neighborhoods!”, “We are only striving to stop rampant voter fraud!”
@MarkedMan: This isn’t that much different than Trinity Lutheran, which went 7-2 just three years ago.
None of the liberals argued that it was a ruse to secretly fund religious schools. Rather, they pretended that there was no longer a program (because the state court struck it down) and that the majority was requiring the state to start up a program. It’s just nonsense.
And, no, it isn’t a backdoor way to get the state to pay for my private school. From the WaPo summary:
$150 is negligible, so it would require a whole lot of #150 contributions to add up to enough to pay for tuition. And one has to be low-income to qualify.
Sure, it was set at $150 while going through the Montana and then USSC challenges, but what do you think it will go to now that it is safe? The precedent is set. State money can fund private schools, which in turn are free to teach all kinds of odious things about Muslims and Catholics and women and minorities, who will have money taken from their pockets to subsidize those teachings.
@MarkedMan:
While I have absolutely no love for the concept of public funds being used to subsidize religious institutions, even indirectly as is the case here, I have to agree with James here. The state opened this door by deciding to subsidize private education with public funding in the first place. It can’t subsequently complain that there is a draft.
Once that door has willfully been opened, the state has to treat all who seek to walk through it equally. It’s really no different in principle than the underlying premise in Hollingsworth – states have no burden to involve themselves in the legitimization or control of marriage, but once they did choose to involve themselves, they have to treat all who seek that legitimization equally. Montana created its own mess here.
A couple of random thoughts:
1) The Blaine amendments were blatant anti-Catholic laws that prevented any public funds from going to Catholic parochial schools. Catholics parents didn’t want their kids going to public schools because they weren’t secular; they were very Protestant schools. The entire Catholic school system was a reaction to the Protestant hegemony in public affairs.
2) I seem to remember NYS supplying textbooks to parochial schools and that was OK. Not sure how this is any different
3) Just wait for the reaction when some money finds its way into a madrassa school or some entity that uses religion as a front. Then you get government entanglement in defining what is a proper religion.
4) Tax code is filled with special benefits for religious entities, from property tax breaks, housing allowances for clergy, etc. They should all be cleaned up and eliminated.
@HarvardLaw92:
From their point of view, Montana Republicans didn’t create a mess. They got exactly what they wanted: state support of religious schools. The Republicans on the Supreme Court Gave them the OK. From their point of view, this is a shining victory.
@Scott: I was remembering this reaction:
Louisiana State Legislator Shocked To Discover Religious Freedom Includes Muslims
@Scott:
And at the time I felt it was a huge mistake for exactly the same reason. It was a deliberate “camel’s nose” ploy. “Let’s play pretend that schoolbooks aren’t financial support.”
That first step, hidden under a covering of “but the private schools don’t get to pick the textbooks, everyone gets the same ones”, led to this step, where a gay Montanan can have their pocket picked to pay the salary of some religious fanatic shouting at students that teh gays are an abomination.
I don’t even know how to react to James’ assertion that the precedent only counts for $150 or less.
@MarkedMan:
Right, the intent was clear. The mess will come into play when some enterprising souls want state money for, say, a Church of Satan school or a madrasah (which I imagine the good people of Montana would prefer even less than the satanic one). Now that it’s open season on state money for ANYbody who wants to open up a religious school, let the games begin. Wiccan, Buddhist, Flying Spaghetti Monster, Scientology??. Opening doors that were intended to be sealed always results in unintended consequences.
As an atheist, I find it disturbing any time my tax dollars are used to support a religious institution, in any way shape or form, as it is a violation of my own religious beliefs. But who cares?
@HarvardLaw92: Fair enough
@HarvardLaw92:
So what happens when Montana inevitably screws over religions they don’t like and it goes back to this SC? Who thinks Republicans in a post-Trump world are going to willingly agree that madrassas deserve the same treatment and money as a Sunday school? They aren’t going to overturn themselves and compliance in Militia Alley is unlikely at best. This will not end well for anyone.
In the end, Repubs always ruin their vision of the “right” they’re screaming about by taking things too far. LBGT rights are expanded and reaffirmed when conservative push obvious hate that the courts can’t justify outside of narrow technical rulings. We ended up with SSM because they just kept pushing it in the states – civil unions as separate-but-equal would have been the law of the land but noooo, “marriage” needs to be protected!. Abortion is still around because they keep pushing these ridiculous bills that don’t even give their allies enough fig leaf to sanction them. The perennial issue of gun rights is because instead of being satisfied with the kill stick they have, conservatives keep pushing for deadly weapons in more places with less oversight or responsibility but more death; eventually they’ll push so hard the government can’t help but agree restrictions will be needed. Now religion is getting pushed more and more. Religious rights or “personal beliefs” exceptions are starting to become a major problem for society to function – look at the maskholes and their insistence they don’t have to wear a mask because they feel it’s an “infringement” and “unsafe”. Antivaxxers are reviving measles and COVID-19 will be around for years because they had to make political a basic health stance.
I saw this as a person of faith: this is a TERRIBLE idea. As you noted, its now open season and we;’ve seen how they get over things like statues and seasonal displays. Red states will *not* comply with equal treatments of faiths, it goes back to court and now the government gets to determine the validity of a faith. I don’t want a conservative within 100 ft of my faith or telling me it’s worth. Mark my words: they’re going to end up ruining 1A in their pursuit of getting things their way just like they do with all their pet peeves.
Great…let’s start taxing churches.
Do you have any idea how much property they own that isn’t taxed?
While my town is taxing my fuqing vehicles?
@Scott:
I am SO looking forward to the folks at The Satanic Temple stepping up and demanding funding. In Montana.
If you haven’t yet seen Hail Satan then you are missing what these political activists have been up to.
One step closer to stupid.
@Liberal Capitalist:
@Scott:
When Oklahoma wouldn’t back down off their Ten Commandments monument some cheeky locals funded a Lord Baphomet statue and litigated to have it installed right next to it.
It worked.
The Ten Commandments monument was removed.
Your conclusion that Ginsberg’s dissent is “strange” and “makes no sense whatsoever” says more about you than it does about the dissent. Ginsberg’s dissent shines a light on the fact that the “conservative” majority is abandoning principles it claims to hold to reach the result it wants.
Montana has a state constitution that prohibits giving money to religious schools. Montana enacts a statute that gives money to private schools, including religious schools. Clearly, the statute violates the Montana constitution. Given that, two remedies are available: (1) the state constitutional provision could be struck down as violating the 1st amendment, and the statute enforced as written; or (2) the statute could be stricken, so that funds were not available for private schools of any kind, religious or secular. As Ginsberg’s dissent points out, the plaintiffs specifically disclaimed a facial challenge to the Montana constitutional provision, and the state court chose option 2: void the statute in its entirety so that parents sending their children to religious private schools are placed in the same position as parents sending their children to secular private schools.
You may not like the option the Montana court selected, but under the rules conservatives on the Supreme Court claim to follow it should be an easy call to say that a state court is entitled to decide on the proper remedy so long as religious folks aren’t treated worse than non-religious folks. The decision to reach out and decide this issue shows that the rules mattered less than the result in this case.
@MarkedMan:
At least in this law, that’s simply not correct. The only people who get their “pockets picked” are those who donate to the fund. Which was of course going to benefit low-income parents sending their kids to religious schools, as religious schools are the majority of private schools.
I’m responding to your argument, which is flatly untrue, that the program was some laundering scheme where people could pay for their own kids’ religious schooling. It just isn’t.
Could a state create such a program in the future? Sure. Would it pass constitutional muster? I think we’d have to see but it might.
@OzarkHillbilly:
I’m not a huge fan of it either but we’ve had a string of rulings requiring the state to treat religion on an equal basis with secular organizations. So, this struck me as a no-brainer.
Further, this isn’t even “tax dollars.” It’s essentially a state-run charity. I have less of a problem with that.
@Roger:
But Roberts slaps down this argument rather forcefully in his majority opinion. The state court should have relied on the precedent in Trinity Lutheran. Which, incidentally, even Kagan and Breyer signed off on just three years ago.
While those religious institutions use this money to promote their religious views and impose their dogma on others? (on the 2nd point, I am thinking here specifically of Catholic hospitals but my objections do not stop at the emergency room doors)
Really James, I am not making a legal argument for or against this decision, ergo I really don’t care about precedent. As far as I am concerned it was a bad precedent the first time it was made and has only gotten worse every time it gets repeated.
And who pays the state to run this charity? We do. Or in this case the citizens of Montana. I’m not sure why religions who have vast amounts of experience running charities now need the state to run one for them.
** Honest question here for anyone who might know, treated on an equal basis? I know very little about tax law so I wonder if religions are treated the same as these secular organizations for tax purposes and how are the differences (if there are any) justified?
@James Joyner:
You think Roberts slapped the argument down forcefully. I read his opinion and think it’s an exercise in begging the question. Trinity Lutheran says nothing about how a state supreme court’s handling of this issue should be addressed—that case came up through the federal court system, not from the Missouri Supreme Court, and the Missouri system was not held to be unconstitutional below. It’s fine to disagree with the dissent, but it takes a pretty shallow analysis to claim that it makes no sense. The fact that Roberts disagrees with it doesn’t change that.
@OzarkHillbilly: I’m a “wall of separation” guy but think there are limits.
So, it really pisses me off when public officials hold prayers, especially denominational ones, at public gatherings. Which is still shockingly common.
At the same time, I don’t think a public school can simultaneously allow an LTBTQ Alliance club and disallow a Fellowship of Christian Athletes.
I think homeschooled kids and religious schooled kids should be own their parents’ dime, since they chose to indoctrinate their kids outside of the public school system. At the same time, it seems obvious that, if kids going to secular private academies are allowed amenities (taxpayer subsidized textbooks, participation in extracurriculars at the public schools, etc.) then the kids going to the Catholic school or the synagogue school should have equal access.
So, I read the Establishment Clause as requiring the government to stay out of religion, not to be anti-religion.
As to tax law, I simply don’t have any expertise. My limited understanding is that churches are treated identically to private charities and other non-profits. But there may be carve-outs that I just don’t know about.
@James:
I’m not 100% on the details but from what I understand, those who “donate” get a tax credit, meaning they pay less in taxes by taking this action. That means the shortfall has to be made up somewhere else and that place is highly likely to be on individuals who are not “donating”. @MarkedMan is exaggerating but not entirely wrong – families using this process are doing so at the expense of others. Considering how budgets are going to be strained due to COVID-19 expenditures, every small bit matters and it’s a legitimate matter of contention.
Most low-income families don’t have the income to “donate to the fund”. If you’re having trouble paying the rent, you can’t afford private school. If you’re working minimum wage, your child’s not going to a religious school unless they are on scholarship or getting a ton of assistance. This may benefit middle class families some but really this is a gift to higher income groups. It’s a tax break for the religious wealthy as well as circumventing our Constitutional protections.
Please release my latest comment from moderation. Unsure what triggered it – was polite and everything! 🙂
Which. it seems to me, is why the dissents that noted that saying “no amenities at all” solves the problem is a reasonable position. The road is two way and people who desire to subsidize private schooling for poor children can do so if they choose to without government subsidy of their “charity.”
@Scott:..2) I seem to remember NYS supplying textbooks to parochial schools and that was OK. Not sure how this is any different.
When I was in the second grade in the Webster (NY) Central School district in 1956, I remember watching out the classroom window as all the Catholic kids filed out to waiting school buses once a week (?) to be shuttled over to the local Catholic school for religious instruction.
They returned later in the day and resumed their secular studies.
I have no idea who paid for this transit but I’m pretty sure the School Buses belonged to the Public School district.
I’m sure I asked my parents about this however I can’t remember what their response was.
My contemplation of First Amendment issues was years in the future.
Maybe if I had discovered Jefferson’s letter to the Danbury Baptists at a younger age I would have put up a stink about this.
@KM:
No argument. I noted above that I think it’s a terrible practice and that their intent in going down this road should be evident.
When and if they decide to start being exceptionally dumb and preferring Christian education to the detriment of any other faith, that’s when the door opens to go back to court and derail the whole fiasco. I know it’ll likely happen. So do you.
But until then, we have to proceed from a legal standpoint on the presumption that it won’t. Even though we can pretty sure that it will. Until it does though, this was legitimately the correct ruling IMO. I don’t have to like it to recognize that it’s correct.
@James Joyner: But the “donation” is a sham transaction. You give the money to the “scholarship” program and then reduce your state taxes by an equal amount. A tax credit is effectively the same as a payment from the state
@James Joyner:
I don’t have a problem with letting them use a room. I do have a problem if they want the school to pay for some specific activity. Raise the money yourselves. The LTBTQ Alliance club should do the same.
Funny, when my sons were going to parochial schools I had to pay for everything and never complained about it. It was my choice.
There is nothing “anti religion” about not lending support to religious entities. Am I anti religion because I don’t put anything in the plate on Sundays? The easiest way to be neutral is to treat religious organizations just like they treat others.
That’s your problem right there.
What!? Are you saying that conservative judges were legislating from the bench!? How utterly shocking! I was told that only liberal judges did that…