Freedom of Religion

Espinoza School Choice Case and Discrimination Against Religion

A response to a query of mine, from David Hodges of the Institute for Justice (who are plaintiff's lawyers).

|The Volokh Conspiracy |

When I moderated a debate on Espinoza v. Montana Dep't of Revenue, I had a question for one of the Institute for Justice lawyers who represents Ms. Espinoza (and others, including Linda Greenhouse, had asked the same question as well). Here's the issue:

  1. A Montana school choice programs let parents use certain tax credits to pay for education at private schools, whether religious or secular.
  2. The Montana Supreme Court held that this violates a Montana Constitution provision, which bars the government from making "any direct or indirect appropriation or payment from any public fund … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination."
  3. But rather than limiting the tax credit program to apply only to nonreligious private schools (which would have been much like what the Missouri government had done for the playground resurfacing grants in Trinity Lutheran Church v. Comer (2017)), the Montana court struck down the tax credit program altogether, as applied to secular schools as well as religious ones.
  4. The plaintiffs argue that this decision violates the Free Exercise Clause because it is religiously discriminatory.
  5. But, I asked, is it really religiously discriminatory, given that now all Montana private schools, religious and secular, are equally denied the tax credit?

The IJ people gave an answer there, and IJ's David Hodges has kindly written it up for me to post:

In September, Linda Greenhouse of the New York Timesnoted something "odd" about Espinoza v. Montana Department of Revenue, a case that the Institute for Justice (IJ) will be arguing before the Supreme Court on January 22. Espinoza will determine whether the Montana Supreme Court was correct to shut down a school choice program that allowed parents to select religious schools as part of a generally available tax credit scholarship program. That court ruled that the program violated the state constitution's prohibition on "indirect" funding of religious institutions.

What was odd to Greenhouse is IJ's argument that a decision that prevented everyone—including the religious—from receiving a benefit could violate the religious neutrality principle of the First Amendment. After all, Greenhouse wrote, the Supreme Court in Palmer v. Thompson upheld a city's decision to defy a swimming pool-integration order by closing the pool on the grounds that both the white and black residents of the town were equally deprived of a place to swim. The logic in Espinoza would seemingly follow: If a benefit is denied to everyone—black and white, religious and secular—then how can it discriminate against anyone? Put another way, so long as the effect is the same, how can the cause matter?

The answer lies in an Anatole France quote that the justices sometimes use to needle one another when they see a law as having an obvious pretext: "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For the Montana Supreme Court, the majestic equality of the law forbids both the religious and nonreligious to attend parochial school.

The underlying dynamic in Espinoza is not new to the Court. The desegregation era was replete with examples of cities justifying discrimination against African Americans by claiming the laws applied to everyone. For example, in Orleans Parish School Board v. Bush, the Court affirmed an injunction against Louisiana when it closed its public schools to avoid a desegregation mandate. In Griffin v. County School Board, the Court held that eliminating a public program to prevent the inclusion of a protected class is the same kind of unconstitutional discrimination as excluding that class in the first place. Finally, in Village of Arlington Heights v. Metro House Development Corporation, the Court explained that "[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision…judicial deference is no longer justified."

Given this context, Palmer is an outlier. In Palmer, the Court wrote that it was unclear whether the pool was closed for discriminatory reasons or benign ones like economic considerations. Absent more compelling evidence, the Court did not want to assume motive.

In Espinoza, by contrast, the Montana Supreme Court explicitly struck down the program because it included religious options. Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go. Also unlike Palmer, there was no ambiguity in the record about whether the program was ended for discriminatory or budgetary reasons. (And this is without even addressing the sordid national and state history of anti-Catholic animus behind the Montana constitutional provision at issue known as the Blaine Amendment.) Finally, even if there were no "bad motives," the text of the state constitutional provision itself clashed with the federal Constitution by disqualifying educational options because of religion—and nothing more.

In any event, both the perspective of time and subsequent caselaw have cast doubt on "neutral" laws and provisions that, as in Palmer, only seem to disadvantage one type of party. As the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, a case that involved a state provision similar to that in Espinoza, excluding a party "from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand."

In Espinoza, where the public benefit is for an individual, not a church, it would be an even greater constitutional injury to deny that benefit merely because it might be used at a religious school. As it was in matters of race, so too must it be in other consequential areas of constitutional law.

I'm on balance tentatively persuaded by this argument, but I'd be glad to also post a response, if someone is inclined to offer it.

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  1. I think the Supreme Court would be making a mistake if it reversed here. I have long argued for a robust Free Exercise clause that limits government’s ability to forbid religious practice. However, I continue to think government has no obligation to subsidize that practice.

    Because of my view of the Establishment and Free Exercise clauses, I think government is limited in the conditions it can impose on religious institutions in exchange for subsidies. In my view it generally cannot require them to violate religious doctrines as a condition of receiving money, because doing so in effect amounts to Establishment. This, for example, not only can’t government require coed clergy as a condition for a subsidy, it can’t in my view require coed education. But I do think it has the option of not subsidizing religious entities in the first place if it wants.

    I see a big difference between government actively inhibiting religion, on the one hand, and choosing not to subsidize it, on the other. In general the “play in the joints” between the Establishment and Free Exercise clauses lets government choose to do nothing with respect to religion if it wishes.

    I also think it dangerous for the Court to move from merely providing the constitution’s textual protections, to providing greater protection than the text warrants. The Court has no more business specially protecting its friends than it does going after its enemies. I understand religion has special textual protection. But in my view, the establishment clause permits government to stay out of religion controversies by staying out of religion.

    1. “However, I continue to think government has no obligation to subsidize that practice.”

      The government is not subsidizing religious practice, the government is subsidizing education.

      As with Trinity Lutheran, if a religious organization is providing a benefit that the government wishes to subsidize, the government can’t deny them the subsidy merely because they are a religious organization.

      1. “The government is not subsidizing religious practice, the government is subsidizing education.”

        Teaching nonsense — for example, suppressing science or warping history to flatter certain superstition — is not education.

        Should governments also subsidize — or be compelled to subsidize — schools that teach that one plus one equals seven, or that storks deliver babies, or that the moon is made of green cheese, or that gravity (merely a theory, much like evolution) turns off when you’re asleep?

        1. “Should governments also subsidize — or be compelled to subsidize — schools that teach that one plus one equals seven…”

          I know of any reason that schools wouldn’t be free to exclude schools that teach that one plus one equals seven from subsidies. But if they’re going to subsidize schools that teach that one plus one equals two, they can’t distinguish between secular schools that teach that one plus one equals two, and parochial schools that teach that one plus one equals two.

          1. Watch that trap . . . the slippery slope includes science, biology, and history as well as mathematics. Whether Earth is a few thousand years old, whether evolution is a demonic plot, whether supernatural claims can withstand reality-based scrutiny . . .

            1. I’m not sure what point you think you’re making . No one is arguing that governments can’t set curricular standards involving science, math, history, etc.

              1. How many religious schools would make the grade if required to teach science and history rather than superstition?

                1. Are you under the impression that religious schools don’t teach science and history?

                  1. Do you contend that religious schools do not teach nonsense?

                    Some teach creationism, which is nonsense. Some teach that Earth is a few thousand years old, which is nonsense. Some teach that the Bible is nonfiction, which is nonsense. Some teach that the theory of evolution is wrong because it conflicts with religious dogma, which is nonsense on steroids. Some teach that history includes miracles, which is nonsense. Some teach that the supernatural (fairy tales in particular) should be favored over the reality-based world, which is nonsense.

                    Where science or history conflict with religious dogma, religious schools suppress or warp science or history to flatter superstition. They choose the nonsense, and peddle that nonsense to students, which is not education.

                    1. No less nonsense than those things that non-religious schools teach. Pseudo-neo-feminist philosophy for the win.

                    2. It seems to me that the government can certainly require that government funded schools teach a certain curriculum including history, evolution, cosmology {including the scientifically accepted history of the universe), etc.

                      What it cannot do is withhold finding because teachers who teach these things also say “but despite this scientific consensus, we believe that the universe was created by God 6000 years ago and the Earth is flat and rests on the backs of four giant elephants standing on a turtle.”

                    3. What about schools that teach that men can get pregnant and have periods? What are your thoughts on those schools?

                    4. Rev. Kirkland: I attended parochial schools and was instructed in the sciences consistently with what I would have learned from public schools. I went to public schools for both my undergraduate and law school education, and I don’t think my background in science, math, and the like was different in kind from what public school students had learned. I wasn’t taught “creationism.”

            2. Assuming a government is competent (which is, of course, a big assumption), when they pay for a service like plowing snow, building City Hall, or educating students, there would be specific requirements and specifications that those vendors must meet. Such requirements may include “Arterials and fixed bus routes shall be plowed within six hours of more than one inch of snow buildup” or “The roof shall be 80 mil TPO applied according to manufacturer’s recommendations and following the 2018 IBC” or “Schools are eligible for a subsidy only if their students, on the average, achieve a score at or above the 50 percentile on the Science Comprehensive Achievement Test (SCAT) for their grade level in the prior academic year”.

              Note that there should be no requirement that the student believe in evolution, just that they understand the scientific basis and support for it (any more than I believed half the crap I wrote in English classes in response to questions such as “What message was the author trying to convey in Chapter 7?”).

        2. If you want to start barring the subsidization of schools that teach nonsense and warp history, you’ll have to throw a far wider net than just religious schools.

          1. I know . . . Harvard, Berkeley, and Michigan don’t meet the standards clingers wish to impose.

            This is why clingers don’t control nice things, like strong universities.

            1. They just control things like…the United States government.

              1. To birthers, I guess Trump being Nancy Pelosi’s bitch seems like “control.”

                1. Obama is the original birther, but whatever.

      2. “merely” can’t be true here, since it also denied the subsidy to non-religious schools.

    2. ReaderY: Leaving aside the specific Montana case, don’t you need to consider things called “subsidies” in the context of where the money came from and the probable effects of denying it?

      To take an extreme example: some town decides to impose a property tax of 500% of assessed value per year. However, they also offer a “subsidy” tax abatement of 498% to eligible properties. All property is eligible except religious institutions.

      I assume you’d not be on board with that. There needs to be some kind of test, based on whether doing without the subsidy is a reasonable option. In the case of schools, are people taxed so hard that they can’t reasonably afford other options?

      1. Your hypothetical is not implicated here. This is a true subsidy, not a tax credit for a punitive tax disguised as a “subsidy.”

        The problem with your hypothetical is not that the state decided to tax 500% of assessed value per year on property. It’s that it treats religious organizations’ property differently from non-religious organizations’ property. There would be an EP and FE problem. But those challenges have nothing to do with whether or not the religious property owner could survive “without the subsidy”. They’d have a strong case even if they could survive without the subsidy.

        1. Such a large tax on religion would be tossed even if it were equal. It clearly crushes houses of worship, interfering with the free exercise of religion, and can’t survive under the fiction of general applicability.

          And if they can’t make their tax payment and is seized, that immediately impacts the practice, which is far more entangling than exemption from the law. That’s the one idea stopping this. Meanwhile politicians pretend religion is exempted by their good grace.

          1. What would be the constitutional problem with a 500% tax on all property that has the incidental effect of shutting down some or all churches? Smith is current law, and it says you can interfere with religious exercise by way of laws of general applicability. A property tax of 500% is a law of general applicability. There is no constitutionally mandated maximum property tax on churches. Whether something is a “fiction of general applicability” depends on it being an actual fiction. If churches and non-churches are both taxed 500% (with no subsidy for the non-church land), it’s a law of general applicability, no?

  2. Matters of racial discrimination, and precedents which apply to them, should not logically be held equivalent to questions about establishment of religion. Invoking the latter has textual constitutional support, which is lacking if done on behalf of racial discrimination.

    Even advocacy on behalf of limited discrimination against religion is supportable—if that discrimination is engaged in only for the restricted purpose of avoiding establishment of religion. The notion that tax dollars can be handed over to religious institutions, including schools, and used for the purpose of teaching religious doctrine, ought to be out of bounds in the American constitutional scheme.

    More generally, ours is a constitution which proclaims separation of church and state to accomplish a twofold purpose—first to assure no state interference with religion, but second, to assure a secular form of government. To carry that scheme into practice, both objectives must be honored. Taxation used to promote secular indoctrination burdens the second objective instead of advancing it. That applies whether the religious promoting is done by government, or by private parties given government funds for the purpose.

    1. So, acc. to you, is there any kind of discrimination against religion that is unconstitutional?

      Suppose a particular religion’s houses of worship have been repeatedly targeted for attack. Can the State say, sorry, we are not going to provide security, as that is subsidizing your religion? (But we would provide security if, say, this was a bank or commercial place of business.)

      1. Sure. Almost all government invasion of religious practice, or involvement with the substance of religious doctrine is barred. The law is correct that judges may not say what conduct or belief constitutes correct adherence to a particular religion, for instance. Exceptions most likely would come in cases where religious practice itself violated laws protective of individual rights. Religious practice in the U.S. must always stop short of criminal offenses against individuals, no matter what religious doctrine might insist.

        Defense of a house of worship against unlawful attacks ought to be uncontroversial. The government merely defends property rights or personal rights that are not inherently religious in nature. In every case, that defense can be accomplished with complete disregard of all substantive religious questions. With regard to violations of civil and criminal laws, religious persons and properties stand on a basis of equality with all others.

        1. You are not answering my question. Which is, when is govt. discrimination against religious institutions allowed?

          Trinity Lutheran Church v. Comer (2017)), State enacts a subsidy for non-profits to redo playgrounds, certainly a secular purpose. But then denies that to non-profits run by a church. SCOTUS says that is unconstitutional discrimination against religion. Do you disagree with that holding?

          How about govt. subsidies to public institutions to increase their security (e.g., install security cameras, hire guards). Can that be denied to a religious institution simply because it is religious?

          1. For myself, I’d say that discrimination in services is never allowed.

            But when it comes to grants, contracts, and other funding streams, it can be appropriate to put conditions on the money that may preclude certain religious institutions from receiving the grants/contracts/funding streams.

            As a trivial example, consider a state that’s looking to outsource it’s DMV work. It’s entirely reasonable for the state to require the contractor adhere to a bog-standard non-discrimination policy in hiring and providing services. This may mean that a “traditional” Christian group that thinks women shouldn’t have authority over men, and would never hire a woman to a management position, would be ineligible. Similarly, a Muslim outfit that refused to process paperwork for female drivers would be ineligible.

            The key is that the state isn’t saying “Traditional Christians/Muslims can’t apply”, it’s saying “here’s what we expect to be done with the money”, and the “religious institutions” disqualifying themselves because they won’t meet the expectations.

            So in the case of Trinity Lutheran Church, I don’t remember being bothered by that outcome. But if, for example, the funding had been for publicly accessible playgrounds, and the church’s playground was limited to the children of church members, it would have been appropriate to refuse them (note: I know these are very different from the facts of the case).

            Compare to Bernstein v. Ocean Grove Camp Meeting Association. In that case, the church had sought funding/tax-break/whatever that was conditioned on being open to the public, and then said “we didn’t mean that part of the public”. If the church hadn’t sought funding that was tied to “open to the public”, they would have won.

  3. Professor Volokh…Any chance that this case is now mooted? I mean, the program in question has been done away with. So why bother arguing the case?

    I don’t see this as a religious discrimination case. I see this as a federalism case. MT had a constitutional convention in the 1970’s (yes, just ~40 years ago) and debated this clause. It passed. There is a constitutionally defined procedure to amend it. The people of MT could have amended this at any point in the last 40+ years. The proper venue to resolve this dispute, to me, is with the MT Supreme Court. And they did in fact resolve it.

    1. Can’t speak to whether this case has been mooted.
      But in a dispute between the MT constitution and the US Constitution, the proper venue for resolution is the US Supreme Court. If there in fact is a conflict (as the lawsuit above alleges), the US Constitution preempts the MT constitution, not the other way around. The MT Supreme Court does not get final say on interpretation of the US Constitution. (The fact that the people of MT could have amended their state constitution and didn’t is irrelevant.)

      1. Why is it a problem if the MT Supreme Court eliminated a legislative program in accordance with their state constitution. A MT citizen sought (and obtained) redress – the program was eliminated. One interpretation is the MT Supreme Court, knowing this clause was problematic, just did away with the program entirely in order to avoid any discrimination.

        I could envision a situation where a Court could say….if you take something away from one, you take it away from all. To me, the MT Court resolved the question.

        1. Under current precedent, if they eliminated it on the basis of anti-religious animus, then the elimination would be a violation of the US Constitution. That’s a big “if” – but that’s the point of the lawsuit.

          1. “…if they eliminated it on the basis of anti-religious animus…”

            What evidence is there of that? The Montana Supreme Court “eliminated it” on the basis of Montana constitutional law. The argument necessarily has to be that the Montana constitutional provision itself is the “anti-religious animus”.

            Setting that aside, which “current precedent” are you relying on?

            1. According to the lawsuit, the evidence is in the MT Supreme Court decision. And, yes, they are essentially arguing that MT’s Blaine Amendment is itself based in “anti-religious animus”.

              re: precedents – From the article above, look to Orleans Parish School Board, Griffin and Village of Arlington Heights.

              1. “According to the lawsuit, the evidence is in the MT Supreme Court decision. And, yes, they are essentially arguing that MT’s Blaine Amendment is itself based in “anti-religious animus”.”

                There are three problems here. First, plaintiffs didn’t challenge Montana’s constitutional provision in state court. They challenged Rule 1. Second, the evidence is thin. There is generalized innuendo from the Blaine Amendment, but precious little re: the actual ratifiers’ bigoted intent. Third, the “ratifiers” of Montana’s Constitution are the citizens of Montana… in 1972. So the evidence you’d need to show is from ~ 100 years later, and they just don’t have the goods.

                Orleans and Griffin are not discriminating intent cases. Village involved an impaired suspect classification, but even then the analysis (discriminatory intent) decided the case, because in the absence of discriminatory intent, there would be no need to apply strict scrutiny in the first place, since it was facially neutral.

                The Montana constitutional provision is facially neutral.

                1. ” facially neutral”….but designed to discriminate against religion.

                  Reminds me of that clever Virginia county that didn’t want to desegregate schools in the 1950’s and 1960s. So, they just cancelled all public schools, and gave the kids money to go to an approved private school instead.

                  “Facially neutral”.

                  1. In this case Montana did not give the subsidy to private non religious schools either.

                    1. Which is exactly parallel to the Virginia county’s attempt to defund all public schools rather than to fund desegregated schools. “Facially neutral” can nevertheless be based upon improper pretext and non-neutral in fact.

                    2. Again, the difference in the Virginia case is, as you said, that the Virginia legislature “gave the kids money to go to an approved private school instead”. That’s the opposite of what happened in this case.

                    3. Opposite in terms of who got paid but that’s not what makes the precedent relevant. It is on-point as a precedent about whether a “facially neutral” policy must be given deference when it is based on an (allegedly) improper pretext.

                      The VA County was told that no they may not use their “neutral” policy as a pretext to continue discriminating on the basis of race. The plaintiffs are arguing that the MT Court may not use this “neutral” decision as a pretext to begin discriminating on the basis of religious belief.

          2. Ah Ok. That is what I think I might have been missing {the big if}.

            Still though, were I a Justice, I would vote to toss the case and take the easy out. There are plenty of other tough cases to decide.

        2. Say that the MT Constitution prohibited government funding of swimming pools that allow blacks so the MT Supreme Court banned all government funding of swimming pools?

    2. Professor Volokh…Any chance that this case is now mooted? I mean, the program in question has been done away with. So why bother arguing the case?

      Because the complaint is that they eliminated it. That’s not moot; that’s the issue.

      The people of MT could have amended this at any point in the last 40+ years. The proper venue to resolve this dispute, to me, is with the MT Supreme Court. And they did in fact resolve it.

      The MT Supreme Court decides whether state actions are consonant with the Montana constitution. Federal courts decide whether state actions are consonant with the U.S. Constitution.

      1. But how doesn’t that itself run into the anti commandeering doctrine?

        Sure, get damages for lost funding in the past, but how is it proper for a judiciary to order future spending? Isn’t that a judicial takeover of legislative power?

        Within a state that might work, depending on how the state is structured, but a federal court ordering a state to spend future money? I do realize this has broader implications (usually in education), and I have the same objection to those too.

  4. For the Montana Supreme Court, the majestic equality of the law forbids both the religious and nonreligious to attend parochial school.

    This is false, and the IJ argument is foolish.

    It would make sense if the court had closed all religious schools. But it didn’t. It just took away the subsidies. Religious schools can continue to operate. Nothings prevents students from attending them.

    There are religious schools all over the country, and AFAIK few if any states provide the kind of credits that were the issue here. So what is Hodges talking about?

    1. “But it didn’t. It just took away the subsidies.”

      But they can’t take away a subsidy, or other benefit, to which you are entitled just because you are religious.

      1. Well, yes, that is why the Montana Supreme Court did away with the whole program. The point is, now no one is entitled to the subsidy.

        1. To follow up on this, suppose SCOTUS determines that the improper action was Montana removing the subsidy only as to the religious organizations. The result would be that private, secular schools aren’t entitled to the subsidy, but religious organizations are, in the face of the Montana constitutional provision. This result itself may well violate free exercise/establishment clause under current EP law.

          Since that would be absurd, the only remaining option is to reinstate the entire subsidy. Which has the result of requiring Montana to subsidize secular private schools on free exercise grounds. So still an absurd result.

          1. Had this been an act of Legislature with debate on multiple reasons for terminating the subsidy, your argument would be strong.
            Given the actual history (that the subsidy was shut down by the Court and that it was shut down solely because of the religious implications), the counter-argument of anti-religious animus is stronger.

            1. Sorry, the post above should have been direct to bernard11’s comment, not to NToJ’s reply.

              1. Rossami and B.L.,

                Here, again, is the argument I was referring to:

                For the Montana Supreme Court, the majestic equality of the law forbids both the religious and nonreligious to attend parochial school.

                Do you claim this is an accurate description of what the court did? If so, please explain why.

                1. Ah, I think I see your point now. I wrote off the “forbids … to attend” in that sentence as journalistic hyperbole. A more precise statement might have been
                  For the Montana Supreme Court, the majestic equality of the law forbids both the religious poor and nonreligious poor to attend parochial school.

                  Even that would still be a little strong because there are presumably ways to attend parochial school without the state subsidy. But the MT legislature apparently disagreed, otherwise they wouldn’t have created the subsidy. And a little bit of literary license should be allowed in a blog post.

                  1. Even that would still be a little strong because there are presumably ways to attend parochial school without the state subsidy. But the MT legislature apparently disagreed, otherwise they wouldn’t have created the subsidy.

                    Because legislators only subsidize things that wouldn’t exist otherwise?

                    Wait, no, they subsidize all sorts of things that can and will exist without them.

          2. You are not getting their argument. Their argument is that (a) discriminating against religious schools in the subsidy is unconstitutional and (b) eliminating the subsidy entirely in order to avoid subsidizing the religious schools is likewise unconstitutional. So you have to restore the subsidy to everyone.

            It is akin to a town operating a whites-only pool, then being told that violates the 14th Amendment, and then saying, OK, we’ll just close the pool for everyone. If that last step is unconstitutional (not saying it is, but that’s their argument), then the remedy is to order the pool reopened for all.

            1. “It is akin to a town operating a whites-only pool, then being told that violates the 14th Amendment, and then saying, OK, we’ll just close the pool for everyone.”

              The hypo is just Palmer v. Thompson (1971). And the Supreme Court said no EP violation. The cases they rely on for the proposition that you have to open the pool for everyone (and distinguish Palmer) aren’t apples to apples.

              “Their argument is that (a) discriminating against religious schools in the subsidy is unconstitutional and (b) eliminating the subsidy entirely in order to avoid subsidizing the religious schools is likewise unconstitutional.”

              As to (a), the subsidy didn’t discriminate against religious schools. It provided funds for religious schools. Their original argument was that an administrative rule intended to save the subsidy from itself discriminated against religious schools. But the administrative rule is irrelevant; the funding was not constitutionally granted in the first place.

              So (b) cuts to the heart of the matter. It’s not really whether the subsidy has to be had by one, none, or all. It’s whether Montana’s constitution, which prohibits the state entities from making appropriations to religious institutions, is itself constitutional under the 1A. But that wouldn’t make the subsidies constitutionally mandated. The Montana legislature would still be free to not provide subsidies to religious organizations. Even if the subsidies were reinstated (because the constitutional provision no longer mandates the result), tomorrow Montana could drop the subsidies for religious organizations.

              1. The hypo is just Palmer v. Thompson (1971).

                Yes, I got that. Except here it is clear that the “close the pool” was done so that the discriminated-against class would not get the benefit, While in Palmer the record was muddled about whether that was the reason, or it was budgetary concerns. Had the town fathers there outright declared that the purpose was to avoid paying for integrated pools, the result would presumably have been different.

                1. Yup. Here, the state has what amounts to a rule that said that a generally applicable benefit is void if a certain class of persons tries to use it.

                2. The holding in Palmer was not as limited as the IJ characterizes. Part III of the opinion speaks for itself.

                  But let’s be clearer about why the IJ’s analogy has to break down. A Montana constitutional provision that prohibited Montana from providing any money that helped black people would obviously run afoul of the 14A. But Montana’s attempt to avoid getting into the constitutionally delicate funding of sectarian ends doesn’t strike most people as analogous. It certainly doesn’t rate as far as I’m concerned.

                  The IJ’s argument has to be the one made by Twelve upthread:

                  “As with Trinity Lutheran, if a religious organization is providing a benefit that the government wishes to subsidize, the government can’t deny them the subsidy merely because they are a religious organization.”

                  Where does this go? Every subsidy given by government must include a subsidy for private religious groups that provide the goods or services. That’s not going to happen. The IJ knows this, and so all they really want is to have the specific Montana subsidy reinstated. (I don’t think that’s going to happen, either.) But, again, Montana would still be free to drop the subsidy for religious groups later.

                  1. “But Montana’s attempt to avoid getting into the constitutionally delicate funding of sectarian ends doesn’t strike most people as analogous.”

                    They’re not funding sectarian ends, they’re funding education.

                    “Every subsidy given by government must include a subsidy for private religious groups that provide the goods or services.”

                    Not necessarily. The government subsidizes education by funding public schools. That doesn’t mean that they have to fund private religious schools. But if they’re going to fund private secular schools, why shouldn’t they have to fund private parochial schools who otherwise meet the criteria for funding?

                    1. “They’re not funding sectarian ends, they’re funding education.”

                      The trap Montana is attempting to avoid is funding religious education.

                      “But if they’re going to fund private secular schools, why shouldn’t they have to fund private parochial schools who otherwise meet the criteria for funding?”

                      In this case, they don’t! They don’t have to fund either. But to answer your question more broadly, consider what “otherwise meet the criteria for funding” is doing here. Does this mean ensuring certain curriculum requirements? Is teaching evolution (or not teaching intelligent design) a “criteria for funding”?

                      The difference between providing funding to a private secular school and providing funding to a private parochial school is that only one of those funding mechanisms raises Establishment concerns. I take your Equal Protection point, but again that’s been neutered in this case. (And taken to its logical extreme, I do not think EP means every subsidy to private organizations by government requirements extension of subsidies to religious ones.)

                    2. “Does this mean ensuring certain curriculum requirements? Is teaching evolution (or not teaching intelligent design) a “criteria for funding”?”

                      I assume that that’s that’s part of the definition of QEP or taken care of by rule-making. I assume that they can require that the theory of evolution can be taught. I doubt that they can forbid the teaching of intelligent design, or anything else, to an institution who otherwise teaches the stuff they want taught.

                      IOW, if the state wants to pay people to teach biology and evolution, and the evidence for evolution, sure. But I don’t see why they can prevent schools from also saying, “but we think you should have faith that the earth is only 4000 years old” or whatever.

                      ” I do not think EP means every subsidy to private organizations by government requirements extension of subsidies to religious ones.”

                      Nobody’s saying that, just, I think, that you can’t use religious affiliation as a criteria to deny a subsidy.

                    3. @Twelve,

                      “I assume that that’s that’s part of the definition of QEP or taken care of by rule-making. I assume that they can require that the theory of evolution can be taught. I doubt that they can forbid the teaching of intelligent design, or anything else, to an institution who otherwise teaches the stuff they want taught.”

                      I don’t think the state can tell private religious schools what not to say at all. But it can condition payment on the schools doing some things, or not doing others, and the religious school is free to ignore those conditions (and not take the money) or take the money subject to the conditions. Montana’s constitutional provision saves the state from having to get into the weeds as to what it wants religious schools to do or say. Without any subsidies, there can never be state conditioning on funding. This is how church/state separation is done.

                      “Nobody’s saying that, just, I think, that you can’t use religious affiliation as a criteria to deny a subsidy.”

                      If it’s done categorically I think it can. But setting that aside, this case isn’t about denying a subsidy on the basis of religious affiliation. The subsidy in question was denied to everybody.

                    4. “But it can condition payment on the schools doing some things, or not doing others”

                      Well, it might be able to condition payment based on schools not saying things based on the wrongly-decided Rust v. Sullivan, but I don’t know if that extends to paying them not to exercise Religion.

                      ” Montana’s constitutional provision saves the state from having to get into the weeds as to what it wants religious schools to do or say. Without any subsidies, there can never be state conditioning on funding. This is how church/state separation is done.”

                      Trinity says that a generally available benefit can’t be denied based on religious identity. Montana’s amendment says that schools with a religious identity can’t recipient funding, even if they teach the same curriculum as non-religious schools. Denying a benefit to everybody if an entity with a religious identity tries to claim it doesn’t save it, for the reasons you outlined in your comment about swimming pools.

                    5. @Twelve,

                      I don’t know what you believe my comment about swimming pools is, but Palmer involved no EP violation. The same argument would apply here; since the government closed the subsidy (or pool) to everybody, there’s no violation.

                      Trinity doesn’t apply because here there is no generally available benefit. Espinoza is not suing to gain access to a subsidy that private, secular schools have. Espinoza is suing to gain access to a subsidy that no one has under Montana state law.

                      “Montana’s amendment says that schools with a religious identity can’t recipient funding…”

                      No, it says that Montana cannot provide the funding. It specifically entitles those private schools to receive funding from others (i.e., the feds).

                    6. @Twelve,

                      One more separate point on Trinity. That involved a state reimbursement grant for playgrounds, to encourage the use of recycled tire.

                      There is no doubt that Montana can set educational standards at its public schools that prohibits the teaching of religious beliefs. (In fact, if it mandated teaching of religious beliefs, that itself would arguably be an establishment violation.) If a state does not want to provide religious education at all, but does want to subsidize non-religious education, is your position that a subsidy for non-religious private education would require the state to provide subsidies for religious education? Or only that it would have to subsidize religious institutions that provide non-religious education?

                      How would the state go about guaranteeing that its funds that went to religious schools for non-religious education were not used for the purposes of religious education?

                    7. The hypo is really Griffin v Prince Edward County, which was a violation.

                    8. “Or only that it would have to subsidize religious institutions that provide non-religious education?”

                      This one.

                    9. @Twelve,

                      Right. Montana’s position is that one, in its briefing. Petitioners want to take it farther.

                    10. @Armchair,

                      Can you think of anything that might distinguish Griffin from this case?

                3. While in Palmer the record was muddled about whether that was the reason, or it was budgetary concerns. Had the town fathers there outright declared that the purpose was to avoid paying for integrated pools, the result would presumably have been different.

                  What’s your basis for making either of these claims?

        2. So if the MT Constitution banned subsidies for swimming pools that allow black patrons then it would be ok for the MT Supreme Court to ban all swimming pool subsidies?

      2. “But they can’t take away a subsidy, or other benefit, to which you are entitled just because you are religious.”

        I get that part of the argument, but I was responding to the comment I was replying to.

        The Montana SC remedy strikes me as absurd. They can’t harmonize the no religious subsidies clause of their constitution with the free exercise clause just by voiding any rule that incidentally benefits religious institutions.

        1. “The Montana SC remedy strikes me as absurd. They can’t harmonize the no religious subsidies clause of their constitution with the free exercise clause just by voiding any rule that incidentally benefits religious institutions.”

          I’m confused by this. Montana SC opinion does not attempt to harmonize. Rule 1 did not “incidentally benefit[] religious institutions.” It did the opposite. In other words the Department attempted to “harmonize the no religious subsidies clause” with the subsidy itself (not with the 1A). That’s why Rule 1 was challenged on free exercise grounds.

          If you meant “voiding any statute” rather than “voiding any rule”, the Montana SC was careful not to do that. See paragraph 40 of their opinion.

          1. I’m using the term rule generically.

        2. Is the benefit truly “incidental,” or was it a big part of the purpose of the credit.

          I’m curious as to the number and enrollment of religious and secular private schools in MT.

  5. “Finally, even if there were no “bad motives,” the text of the state constitutional provision itself clashed with the federal Constitution by disqualifying educational options because of religion—and nothing more.”

    Really, this is the only point that seems to have any weight here. State constitutions can’t violate the Federal constitution.

    The Anatole France argument has never really moved me. It might be fine rhetoric, but it’s lousy logic. In reality, if the law is going to discriminate between the poor and the wealthy, instead of treating them the same, it’s the wealthy who will get a break, not the poor.

    And the idea that you can’t refrain from providing a service at all, if the courts think you stopped providing it because you weren’t permitted to do it in a discriminatory manner? It proves too much. How many things does the government not start doing in the first place because it would only be willing to do them in a discriminatory manner? At some point, the judiciary just have to be more modest about how much authority they have to boss the rest of the government around if they suspect bad motives for doing something that’s otherwise legal.

    1. have to boss the rest of the government around if they suspect bad motives for doing something that’s otherwise legal.

      Bad motives would mostly be unconstitutional — which is the judiciary’s function … despite all the screeching about “unelected” (or “rogue”) judges” from the alt-right.

    2. The Anatole France argument has never really moved me. It might be fine rhetoric, but it’s lousy logic.

      I think you miss the point. What France seems to be saying is that laws may be facially neutral between rich and poor – indeed they often are – yet in reality affect only the poor.

      1. No, I didn’t miss that, I disagreed with that.

        MY point, is that, while the well off have less motive to commit some crimes than the poor, if the government abandons neutrality between the wealthy and the poor, it is basically never going to be to the advantage of the poor. It’s going to be the wealthy who get a pass. That ‘majestic equality’ is the best you can hope for, it gets worse if you abandon it.

        Yes, I’m highly unlikely to steal a loaf of bread. Is this really a reason a poor person should be permitted to steal? Because that IS what France was implying.

        We’re seeing in California right now the consequences of taking France’s complaint seriously, (Prop 47, for instance.) and it’s not pretty.

      2. Yes, the argument is essentially an attempt to establish a disparate impact theory applicable to Free Exercise claims. It is an uphill battle though, because Ricci v. DeStefano was grounded on the Civil Rights Act and did not reach any constitutional questions.

  6. Equality would support EITHER striking down or sanctioning both religious and secular financing, the only way to acknowledge that the First Amendment is freedom OF and FROM religion. The rest, I’ll yield to Volokh on constitutional nits.

    Great point on anti-Catholic bias, but are all those religious schools Catholic?

    I doubt you’ll find anyone stronger on separation than me. I’m an atheist, but as an elected school board member I supported the equality that the district board practiced. A far suburb of Cleveland, Ohio, we provided busing to Cleveland private schools, religious or secular. Within our district, we also paid for textbooks used in our local Catholic schools … if they used the same books as our public schools. In many cases, not all, managed by faculty Departments, the Catholic faculty were included in textbook selection committees.

    My election had a fun moment on this. I was attacked for being an atheist, but I finished a close second in a six person race, probably from this. At a candidate debate, one voter assumed I’d oppose the textbooks and busing. A related issue was after-school clubs. I supported all of it, citing a then-recent SCOTUS ruling that in-school religious clubs were constitutional, as long as the clubs and members were treated equally.

    I finished by stating, with dripping sarcasm, that “I’m non-religious, not anti-religious, and libertarians defend anyone who lives their values on a daily basis, with no special rights or denials for any reason” (I was also attacked as a libertarian running for a public school district ,… but I DID force a 23% reduction in a local property-tax levy)

  7. I would look at this situation as the state is (now) obligated to educate the child (generally a state law requiring all children to be in school). Since it is the states responsibility to educate each child the tax revenues allocated to education should be divided amoung each child based upon the cost of education for each grade or education level. The more expensive levels of education would get a greater division. Then the school which the child goes to would receive those funds. But if the child is not excelling in that then that child’s parent(s) could take that child to another school (a long with the money). This last part would also apply to state sponsored schools.
    Now I know this last part I know that this will be a problem where there are teacher unions (we have seen this already) but the state’s object should be the education of the child. This competition for students would improve all education. For a school to continue it would have to compete to get and keep schools. Thus the state supported schools would have advantage in providing a better learning environment because of state provided building and equipment that the private (and church related schools would not be getting).
    As it is now state supported schools don’t have to compete to get students and there is less pressure to excel at education. That maybe one of the reasons that many state sponsored schools have made it much easier to make very good grades. When I was in grade school (a state sponsored school) The grade range was:
    A = 96% to 100%
    B = 89% to 95%
    C = 80% to 88%
    D = 70% to 79%
    F = <70%
    That has changed now to be much lower.

  8. This should not be treated as a government subsidy at all. Only a portion of the school part of the property tax is remitted to those who don’t use the public schools and who lower the cost of maintaining them. That takes care of the argument about the fixed costs that opponents of charter schools continue to use.

    The real animus that drives this opposition is that the kids are no longer subjects of the propaganda factory. If municipalities choose to allow these credits then the courts should stay out of it.

    1. Only a portion of the school part of the property tax is remitted to those who don’t use the public schools and who lower the cost of maintaining them.

      And what about those who pay the taxes but don’t have kids at all?

      1. In our county seniors get a discount on the property tax and I think that should apply to childless people as well. They should have to pay some because of the civic advantages of a literate populace but it should function something like taxes on road use. If you don’t operate a motor vehicle you aren’t subject to tag fees, gasoline taxes, road tolls etc. You still pay some road tax directly which reflects the general desirability of having roads.

        1. On the other side of that, you’re taking considerable advantage, especially in your old age, of living in a society where SOMEONE is having children. It’s not like that SS you’re expecting is actually just digging up jars of bills it buried in your backyard, it’s paid for by taxes on the currently working, who someone else gave birth to.

          We’re currently seeing in the birth dearth the consequences of too heavily concentrating the costs of having children on those who do it, while spreading the benefits around. We’ve made a commons of the next generation, and the results are tragic.

          1. I guess I didn’t pay into the SS system for fifty years and am just getting a free ride. It functions pretty much like any other annuity, with a few quirky features. An insurance company doesn’t sequester the money you pay in for an annuity any more than the government does for SS. Part of your payment is used to pay benefits in annuities that have matured and the rest is invested. Like SS private annuities depend on continuity.

            You do have a point that relates to a quirky feature of SS, namely that it is only term limited by death but it is also not transferable. In 1934 the average life span was about 60. What is it now, 80?
            This problem can be fixed by raising the eligibility age starting now with 67 and going up a year every five years or so.

            I noticed that the SSA is trying to work these features to the benefit of the system by offering a sweetener in the form of a portion of current eligible benefits if you opt to wait until 70 to receive full benefits. I calculated that I would have to survive past age 78 to break even. Obviously I’m betting I’ll beat that and the SSA is betting I won’t. I’m hoping to hang around as long as possible to help forestall Arthur’s Jacobin-style plans after our replacement.

            1. No, Social Security does not (and never has) function like an annuity.

              As a legal matter it is and always has been a pay as you go program. The payroll taxes of current workers pay the benefits of current beneficiaries. Your contributions paid for your grandparents and parent’s benefits.

              1. Sorry but you are wrong. That is exactly how annuities function. Current payments pay for the benefits of other annuities. They don’t sequester funds to accumulate for the future payouts of your annuity. If there is a surplus of payments vs benefits it is invested and that is how the annuity issuer makes a profit.

                1. There may be a terminology problem here. Investment companies sell things called e.g. ‘variable annuities’ that are essentially smoothing your personal returns over time (it’s hard to be too specific, because the details vary a lot from company to company).

                  But ‘classic’ annuities – specifically SPIAs (Single Premium Immediate Annuities’ are insurance products, and the insurance company is indeed required (by the insurance commissioners) to maintain reserves that are actuarially adequate to maintain future payments, from the moment you buy the annuity.

                  Think about it – who would give, say, New York Life $100k in return for a promise of $5k for life if a couple of years later NYL could say ‘sorry, sales haven’t been all that great, we’re stopping payments’.

  9. It seems the Court could have struck down the program on dual grounds. First the US Constitution forbids discrimination based on religion. Second the State Constitution forbids any public money going indirectly to any religious entity. It seems to me on that basis the Court’s only option to satisfy BOTH Constitutions was to strike dow the program in it’s entirety.

  10. “As the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, a case that involved a state provision similar to that in Espinoza, excluding a party “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.””

    Back to your original question, the fact that it threw out the tax credit even for secular schools undermines the “solely” argument. This feature also renders Griffin irrelevant. There, the subsidy remained, albeit exclusively for segregated schools. The county insisted on paying for education for students, just not in desegregated schools. If there had been no subsidy at all the EP claim would have been harder to make.

    It’s also hard to argue that the Montana Legislature had discriminatory intent when it provided a religious subsidy in the first place.

  11. Is it even an argument that the state took away money from all citizens and would only give some of it back to those who did not want to send their children to a religious school? The money not given back to those who want a religious education was taken from as taxes.
    It seems that the courts in Montana have taken a side, against choice. If you want to send your kids to a parochial school, you have to pay twice.

    1. Yes, of course you have to pay twice. Just as you’d have to pay twice if you wanted to send your kid to a private secular school. And if you don’t feed your kid with state-issued food stamps, you have to pay for food twice, too. And if I hire a security guard for my business, I have to pay twice, first for the cops, and second for private security.

  12. I know that IJ can be a little loose when glossing the holdings of cases to try to advance its legal theories, but this response takes it pretty far. If their lawyers didn’t exercise some better discipline in their actual briefing, I think they’re in for a bad a time.

  13. I am not so persuaded. This argument relies heavily on Griffin, claiming

    the Court held that eliminating a public program to prevent the inclusion of a protected class is the same kind of unconstitutional discrimination as excluding that class in the first place

    But in Griffin the public schools in Prince Edward county were closed and government resources diverted to private schools which were free to discriminate, all with the intent to continue segregation in defiance of orders to end it:

    [W]e agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws.

    These factors are not at play in Espinoza.

  14. Religious claimants are so accustomed to playing ‘heads we win, tails you lose’ — ‘we can discriminate against others, but no one can discriminate against us’ — that they seem to have convinced themselves that this is just, or likely to continue to be accepted by mainstream America.

  15. In Palmer, the Court wrote that it was unclear whether the pool was closed for discriminatory reasons or benign ones like economic considerations. […] In Espinoza, by contrast, the Montana Supreme Court explicitly struck down the program because it included religious options.

    I am not persuaded that this set of facts establish that the striking down of the entire tax credit provision was motivated by discrimination against religious schools. As the Montana court said:

    The Department enacted Rule 1 in its efforts to constitutionally implement the Tax Credit Program, which we have now determined is unconstitutional. We severed the Tax Credit Program from the remainder of Part 31. See supra, ¶39. As a result, Rule 1 is superfluous. However, we further note that, in enacting Rule 1, the Department exceeded the Legislature’s grant of rulemaking authority.

    That is, it appears to me the Montana court was motivated by following the rule of law as to what a proper judicial remedy would be.

    1. That is, it appears to me the Montana court was motivated by following the rule of law as to what a proper judicial remedy would be.

      Not sure this saves the day. The Montana Supreme Court was upholding the rule of law — specifically, the Montana constitution version of the Blaine amendment. If that amendment itself is discriminatory, then the basis for the ruling is discriminatory.

      1. I agree that if the Blaine amendment was motivated by discrimination, rather than being motivated by a legitimate concern about separation of church and state that may protect religious beliefs, then the resulting neutral application of no tax credit would violate the US constitution.

  16. Maybe the court can use this to overturn the terrible Locke v Davey decision, where Davey was denied a scholarship to study Business because he also wanted to study Theology.

  17. Say that the MT Constitution prohibited government funding of swimming pools that allow blacks so the MT Supreme Court banned all government funding of swimming pools?

    1. The closer analogy is if MT Constitution banned the funding of swimming pools, but then the Leg passed a law incidentally funding pools that black people swam in, and MT SC threw it out. Throwing out the funding entirely would get you to Palmer. In the absence of a discrimination claim, there’s nothing left for a free exercise challenge. (But even with alleged discrimination, the analogy is off. States don’t have a constitutional obligation to separate racial justice and state, as they do with religion.)

  18. “”The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.””

    I’ve never bought into any kind of persuasiveness in that pithy statement. People tend to whip it out and then look at you smugly like they just “pwned you”, but I don’t really think it has any argumentative force.

    The law in its majestic equality also forbids both violent and nonviolent from committing murder, and the kleptomaniac or the pyromaniac from their desired mayhem. There’s nothing wrong with that. If something is harmful, it’s justly banned regardless of whether the prohibition falls more heavily on some people than others.

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