The Supreme Court demolished the First Amendment separation of church and state in Espinoza v. Montana.


Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh attend the State of the Union address on February 5, 2019.
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On Tuesday, in a 5 to 4 general decision, the Supreme Court forced most states to fund private religious schools in a ruling that forces millions of American taxpayers to subsidize Christian education, even if funding from another religion violates your own beliefs. Incredibly, this maximalist decision did not go far enough for two conservative judges who would seemingly allow states to establish an official religion. Disagreeing, Judge Sonia Sotomayor described the majority’s decision as “perverse.” That may be an understatement: her decision is the culmination of a yearlong assault on secular governance and heralds even more radical decisions in the future.

The basis for Tuesday’s decision in Espinoza v. Montana It originated from a creative scheme devised by the Montana Legislature to fund sectarian schools. The Montana Constitution contains a “no aid” provision that prohibits the state from providing public funds to religious institutions, like 37 other state constitutions. To avoid this rule, the Legislature granted tax credits to residents who donate money to Big Sky Scholarships, which pays students to attend private schools, both secular and sectarian. (Montana’s demographics ensure that the only sectarian schools that participate are Christian.) In other words, residents get money from the state when they help children get a private education, including religious indoctrination. In 2018, the Montana Supreme Court found that this program violated the no-aid clause of the state constitution. But instead of excluding sectarian schools, the court removed the entire scheme for all private education.

Supreme Court President John Roberts revived the Montana tax credit scheme on Monday in a convoluted opinion that heralds a surprising new constitutional principle: once a state funds private education, “it cannot disqualify some private schools solely because they are religious. ” Twenty-nine states, the District of Columbia, and Puerto Rico provide tax credits or vouchers to families who send their children to private schools. Below Espinoza, now they must extend these programs to private religious schools.

The result: taxpayers in most parts of the country will soon begin to openly fund religious education, including the indoctrination of children in a faith that could clash with their own conscience. For example, several schools participating in the Montana scholarship program instill students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest. But many Montanans of faith believe that LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who don’t want to fund religious indoctrination that contradicts their own beliefs? In short, very bad: your rights just don’t matter that much. This decision reverses the First Amendment. The amendment’s free exercise clause protects religious freedom, while its establishment clause mandates that the government not enact any law that “respects an establishment of religion.” Just 18 years ago in Zelman v. Simmons-Harris, a large majority of the Supreme Court ruled that, according to the establishment clause, the states were permitted to finance private schools through vouchers or tax credits, on vigorous dissidents of the four liberal judges. Now the court has declared that, under the free exercise clause, most states are obliged to finance private religious schools. The conservative majority has revolutionized church-state law in record time.

The conservative majority has revolutionized the church-state law on the record hour.

How did the court plot this catastrophic course? The barrier between church and state was compromised when five judges allowed state funding for sectarian schools in Zelman. It almost collapsed when the court expanded religious institutions ‘access to taxpayers’ money in 2017 Lutheran trinity v. Eat, who argued that states cannot deny public benefits to religious institutions because they are religious. The court claimed to find this dangerous rule in the First Amendment free exercise clause, although, as Sotomayor pointed out in his scorching dissent, separating church and state does not limit anyone’s ability to exercise their religion. He closed with a warning: “In the end, the strength of today’s decision may be less important than it could allow tomorrow.”

Tomorrow has arrived, and it is as absurd as Sotomayor predicted. Roberts’ majority opinion follows Lutheran trinity to its logical and outrageous conclusion: a state violates free exercise, wrote the president of justice, when he “discriminates[s] against schools “based on” the religious character of the school. “Roberts explained that the government has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers right not to finance religious practice that violates their own beliefs. “We do not see how the non-aid provision promotes religious freedom,” the chief justice briefly wrote.

Roberts may not be able to see it, but James Madison certainly can. As Judge Stephen Breyer wrote in dissent, Madison opposed a Virginia bill that would have imposed residents to support teachers of “the Christian religion,” condemning it as “a sign of persecution” that violates religious freedom. . Montana’s Christian-only program in schools illustrates how states that fund religion end up funding the faith shared by most residents. Breyer, citing Madison, noted that state funding for a particular religion can “destroy that moderation and harmony” between different religions that is a hallmark of America’s religious tolerance.

This extreme result was not enough for judges Clarence Thomas, Neil Gorsuch and Samuel Alito. Thomas, along with Gorsuch, asserted that the very concept of separating church and state “communicates a message that religion is dangerous and needs vigilance, which in turn has the effect of tilting society in favor of devaluing the religion”. According to Thomas, imposing separation of church and state amounts to “religious hostility” and must end immediately. Justice reached this conclusion reiterating its conviction that the First Amendment’s establishing clause was “probable” designed to preserve states’ ability to establish official religions.

In his own opinion, Alito attacked “no help” clauses in 38 state constitutions, including those in Montana. He claimed that these provisions were motivated by anti-Catholic encouragement, and it is true that nativists supported them in the 19th century.th century. But Alito omitted the fact that advocates of universal education also encouraged these provisions for perfectly legitimate reasons. before the nativists gathered around him. And she dismissed the fact that Montana adopted its no-aid clause in 1972 for the express purpose of protecting religion from the entanglement of the state. Alito will not allow inconvenient events to stand in the way of his campaign to invalidate the constitutional guarantees of 38 states against the state subsidy of religion.

If there is any positive side to Roberts’ opinion, it is that he did not adopt the radical positions of Thomas, Gorsuch or Alito. At least not yet. The only limiting principle that Roberts establishes is that states “don’t need to subsidize private education” in the first place, so, in theory, states can abolish public funding for private schools entirely to avoid funding religious schools. But that’s what the Montana Supreme Court did here, but Roberts condemned his decision as “discrimination against religious schools.” If a legislature tries to end a coupon program in light of Espinoza, conservatives on the Supreme Court could easily find more evidence of anti-religious “discrimination” and compel her to revive the program. Having gutted protections against the establishment of religion, most are limited only by their own sense of what can get away with it.

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