Supreme Court

The Supreme Court Weighs School Choice and Religious Liberty

What’s at stake in Espinoza v. Montana Department of Revenue

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The U.S. Supreme Court heard oral arguments Wednesday in its biggest school choice case in nearly two decades. Judging by the questions raised by the justices, the school choice side seems to have a good chance of emerging the winner.

At issue in Espinoza v. Montana Department of Revenue is a scholarship program the Montana legislature created in 2015 "to provide parental and student choice in education." Individuals and businesses received a tax credit for donating to private, nonprofit scholarship organizations, which then used those donations to fund scholarships at private schools, both secular and religious.

The Montana Supreme Court killed the program in 2018, holding that it violated a provision of the state Constitution that bars the use of public funds "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 party by any church, sect, or denomination."

The big question before the U.S. Supreme Court this week is whether the state court's judgment conflicts with the U.S. Constitution and its protections against religious discrimination.

Justice Elena Kagan, who repeatedly signaled her support for the Montana Supreme Court's decision, saw no conflict at all. "I guess I am having trouble seeing where the harm in this case is at this point," Kagan said. "Because of the [state] supreme court's ruling, whether you go to a religious school or you go to a secular private school, you're in the same boat at this point." In other words, Kagan declared, "there is no discrimination at this point going on, is there?…The parents of both are affected in the exact same way."

Justice Brett Kavanaugh offered a very different view of the case. "If you're running a scholarship fund," he said, "and there's a group of people lining up for the scholarships, [and you say to them,] are you secular? OK, you can get it. Are you Catholic? No, you're out because you're Catholic." How, Kavanaugh stressed, is that not a constitutional harm?

Chief Justice John Roberts, who likely holds the deciding fifth vote in the case, seemed to be on the same page as Kavanaugh. Let's say the state legislature "built parks and pools," Roberts said, "but if a higher percentage of African Americans come and use the pools, then we're going to shut down the whole program." Wouldn't such a state action be unconstitutional on its face? And if so, "how is that different than [shutting down a program based on] religion, which is also protected under—under the First Amendment?"

A decision in Espinoza v. Montana Department of Revenue is expected by June.

Read the Reason Foundation's friend of the court brief in support of Kendra Espinoza here.

NEXT: Day 2 of Impeachment Trial Ends With Impassioned Dem Plea for Witness Testimony

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  1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

    —-First Amendment

    If the government can discriminate against a school because it’s Catholic, then the First Amendment must be unconstitutional.

    1. Well, you can lose your job for saying a man is a man.
      So what makes you think that the constitution has any meaning left?

      Welcome to the revolution.

      1. Lose your gubernment jerb?

        The rest is free association…

    2. It seems to me not giving scholarship money to Catholics satisfies both of these clauses of the First Amendment.

      1. If you’re an idiot sure. Removing government benefits due to religious reasons isn’t allowing the free exercise of as it forces a cost/benefit analysis for someone. Freedom of religion doesn’t mean Freedom from religion.

        1. Wondering… If you have a cake shop and shit it down because you refuse to cater to certain religions, is that the same thing?

          1. Cake shops don’t get tax credits, to the best of my knowledge.

        2. Guys like Chipper love to pretend that the “prohibiting the free exercise thereof” part on the end, doesn’t exist.

        3. Jesse, I really wish you were smarter, so you could come up with an intelligent or funny insult, which would make it somewhat fun to respond to you. If I could somehow make that happen, I would love to do it.

    3. State vs. federal government.

      For most of America’s history, there was no question that a state government could “discriminate against a school because it’s Catholic”.

      The conflict only appears when you add Incorporation to the mix, which makes many provisions that were common to state constitutions for the majority of the US’s history arguably unconstitutional.

      1. As far as I’m concerned, incorporation is a sloppy, near-mindless theory that’s correct as applied to free exercise but incorrect as applied to establishment. The only way state establishment (as in funding) of a church is a deprivation of liberty (as the 14th amendment says) is if taxation is. I’d be glad if they ruled that, instantly knocking out all federal and state taxation, but they won’t.

    4. But Montana is no longer discriminating. It’s terminated the entire program, so it won’t be giving benefits to either religious or secular schools.

      1. Using the threat of criminal prosecution to force taxpayers to fund wealth redistribution by way of things like public schools and Medicaid is the very definition of authoritarian socialism.

        Transitioning to a system where taxpayers are free to make donations to a fund that privatizes education to the extent that taxpayers willingly fund it is probably a necessary step by which that authoritarian socialist system becomes increasingly libertarian and capitalist.

        No one’s about to declare public schools illegal over the summer without a superior alternative for the kids attend before fall.

        No legitimate reading of the First Amendment means that the government can’t transition from authoritarian socialism to libertarian capitalism so long as Christians are involved, but if it did, can you imagine how awful that would be for the cause of libertarian capitalism? You’re not one of these Obejectivists who entertains some fantasy about how the world has to become atheist before we can transition away from authoritarian socialism and towards libertarian capitalism, are you?

        Thank goodness the First Amendment doesn’t prohibit the government from letting taxpayers make charitable donations in lieu of taxes, and thank goodness the First Amendment prohibits the government from discriminating against people on the basis of their religion. The way to a more libertarian and capitalist society is clear, and leverages the influence of Christianity on our culture rather than tries to stamp it out–the latter being an absurd fantasy rather than a serious implementation of policy.

      2. “But Montana is no longer discriminating. It’s terminated the entire program, so it won’t be giving benefits to either religious or secular schools.”
        They initiated a program for tax credits. Then, when they saw it was being used to benefit religious schools, they ended it out of spite. Too late, AFTERWARDS, to claim that you’re even handed. It’s kind of like telling your daughter she’s “old enough to date whomever she pleases.” Then, when she brings home a black guy, and — all of a sudden — you decide you want to reinstitute the old “you’re not old enough to date” rule. Too late to go back to the old way and pretend you’re even handed again.

  2. Chief Justice John Roberts, who likely holds the deciding fifth vote in the case, seemed to be on the same page as Kavanaugh. Let’s say the state legislature “built parks and pools,” Roberts said, “but if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program.” Wouldn’t such a state action be unconstitutional on its face? And if so, “how is that different than [shutting down a program based on] religion, which is also protected under—under the First Amendment?”

    That is exactly the point I made yesterday and I think it is the right one. Understand the legislature didn’t just decide this program wasn’t worth doing anymore. The Montana Supreme Court said that this program must end because it benefits religious schools. The lower court ruling means that any aid program that benefits religious institutions is illegal under the Montana Constitution.

    1. We should point out, too, that the program in question is apparently voluntary. You get a tax credit–against your already existing taxes–for voluntarily contributing to the program.

      No one pays more taxes than they would otherwise because of the existence of this program.

      1. Well…….technically, it is a tax credit. So yes, it is subsidized by MT taxpayers.

        1. The question isn’t whether it’s subsidized by taxpayers.

          The question is whether a program that’s subsidized by taxpayers violates the First Amendment.

          The First Amendment prohibits the government from forcing people to pay taxes to support a religion they don’t believe in, but that isn’t what’s happening if paying into the program is voluntary rather than required by law.

          The First Amendment also prohibits the government from discriminating against people because of their religion, and that’s the right that’s being violated here.

          1. The First Amendment also prohibits the government from discriminating against people because of their religion, and that’s the right that’s being violated here.

            Does it, though? I thought it prohibits “the free exercise thereof.” I fail to see how the government not giving someone money prevents them from exercising their religion.

            1. You’re actually asking to discriminate against people, and you’re too dumb to know it. A school is a school. Just because they add a class on religion or have a 15 minute prayer time doesn’t mean it isn’t a school. Yet you would seek to ban them from any public benefit such as a voucher because of their additional actions you disagree with. Nobody is forcing kids to attend the school with those actions, but you seek to deny a benefit based on them.

              1. An institution that teaches nonsense is not a school. An institution that teaches ‘one plus one equals nine,’ or creationism, or ‘the moon is made of green cheese,’ or ‘evolution is a demonic hoax,’ or the Bible as nonfiction is not a school. People are entitled to believe as they wish, but educational standards designed to protect children, accreditation standards, and government funding regulations should not appease or subsidize the belligerently ignorant.

                1. An institution that teaches nonsense is not a school.

                  By that standard there might not be a school in existence in this country and certainly none in the Ivy Leagues.

                  Like most stupid people you completely lack the ability to understand your thoughts and views from any perspective other than your own. It would never occur to your damaged and simple brain that what is and what is not “nonsense” is a very debatable question and not something that you or anyone else would have a definitive answer to.

                  One of the hallmarks of having a low IQ like yours is the inability to see distinctions. You can’t understand that there is a difference between value and philosophical questions and factual and scientific questions. Because of this, you think that teaching a philosophy you don’t like is the same thing as a school teaching that crystals are the key to healing or that Math is racist and any answer to a math question is equally valid.

                  It is amazing how profoundly stupid you are and how obvious the fallacies that you spout are. The only thing more remarkable is your complete inability to understand how wrong you are.

                  1. […] and how obvious the fallacies that you spout are.

                    The ad hominem one springs to mind.

                    1. That is not an ad hominem. It is a personal insult. An ad hominem is me saying your argument is wrong because of who you are. That is not what is going on here. I am saying he is stupid because his arguments are nonsense. That is insulting him. That is not ad hominem.

                      Do yourself a favor and learn what terms mean before you use them. Ad hominem is a often misunderstood term. So, I can understand the mistake. But, now you know better.

                    2. You are welcome for the lesson in the meaning of the ad hominem fallacy. I always try and be helpful.

                    3. You always try to be an ass, John, and you never fail to deliver.

                    4. Calling Kirkland a “stupid bigoted fuck” isn’t ad hominem, it’s a scientific observation.

                  2. Well done!! I hate how the ad hominem term is thrown around. I also hate how people constantly misuse begging the question. But I think the ship has sailed on that one.

                2. “An institution that teaches nonsense is not a school.”

                  And, yet, students from plenty of religious schools outperform students from public schools–in subject across the board, including science.

                  Some of our most exclusive universities are run by Jesuits.

                  As is typical, your pronouncements have no basis in reality. I’ve seen arguments for creationism that are better supported by facts that your pronouncements about the quality of religious educational institutions.

              2. A school is a school. Just because they add a class on religion or have a 15 minute prayer time doesn’t mean it isn’t a school.

                No it is not. I completely 100% support the notion that CLASSES on religion or whatever should be allowed on public taxpayer-paid school property. I support an entire curriculum based around that if parents/kids want that and can fill the classes. But that requires separating the FACILITIES (taxpayer-paid – regardless of who even has kids in school or not) from the curriculum/teaching. The latter can absolutely be funded then with tuition scholarships and endowments and parental fees and such.

                But a separate private school facility is not the same as a public school facility. Because in the former government is being used to collect tax in order to pay rent to a private landowner (who gets their land title granted and defended by govt). That is corrupt and prima facie nuts.

            2. “Does it, though? I thought it prohibits “the free exercise thereof.” I fail to see how the government not giving someone money prevents them from exercising their religion.”

              You’re arguing about the First Amendment like you don’t know what it says, despite responding to a comment above the quotes the First Amendment verbatim?

              Part of the First Amendment is freedom from establishment, and by discriminating against Catholicism (or any other religion), the government is violating that part of the First Amendment.

              Only someone who is being willfully obtuse would pretend otherwise.

              1. It is not freedom from establishment. It is prohibition OF establishment

                1. I fail to see the distinction.

          2. The First Amendment prohibits the government from forcing people to pay taxes to support a religion they don’t believe in, but that isn’t what’s happening if paying into the program is voluntary rather than required by law.

            you do not really understand what establishment is. If one specific group of people are able to channel their TAXES into specified spending that is religious, then that is establishment.

            It has nothing to do with free exercise because free exercise does not mean govt-paid exercise

            1. “If one specific group of people are able to channel their TAXES into specified spending that is religious, then that is establishment.”

              That isn’t what is happening here.

              Anyone who wants to is allowed to contribute to a general fund that awards scholarships so that kids from poor backgrounds can go to private schools.

              Some of the schools that are participating in the program are Catholic.

              The government wants to discriminate against them because they’re Catholic.

              No one is forced to contribute to the program.

              Their tax bill is the same regardless of whether they contribute to the scholarship fund, and no taxpayer is forced to participate.

              It’s just a means to privatize the school system, and the arguments against it fall flat because the First Amendment isn’t about using the government to discriminate against Catholics.

            2. If one specific group of people are able to channel their TAXES into specified spending that is religious, then that is establishment.

              Hrm…

              Yeah, I don’t think so. If that was the case, then tithes wouldn’t be tax-deductible at the federal level, and they are.

              Unless the distinction you’re trying to make is that allowing Catholics to funnel funds towards Catholic schools, but not allowing Protestants to do so, would be bad? In which case absolutely. But that’s a different issue then this case.

              1. This is about tax credits not deductions.

            3. re: “If one specific group of people are able to channel their TAXES into specified spending that is religious, then that is establishment.”

              Uhm, no it’s not. If that were the standard, then the GI Bill (which allowed recipients to spend their tax-funded benefits at religious or secular institutions) would be unconstitutional. So would most other financial aid programs.

              This is all well-established law at undergraduate institutions. Benefits that let the recipient choose where to spend it are not Establishment violations. Why is this even a question for primary and secondary schools?

        2. Tax credits are only subsidized by taxpayers if you consider all income and property that is subject to taxation to be the state’s to begin with. Like the state starts by taking everything from everybody and then subsidizes you to the extent they let you have any of it back, as long as they’re keeping some from somebody. You pay less than you otherwise would? That’s money that other taxpayers could’ve gotten to keep but didn’t, so they’re subsidizing you!

          1. No. Tax credits are by definition a diversion of something that has already been taxed. They are not income deductions – lowering the income that is yet to be taxed.

      2. A tax credit IS a government subsidy. It is not the same as a deduction.

        As a completely bigoted aside on my part – this is exactly the sort of case that I have thought the Supreme Court is less and less capable of dealing with because of the 40 year focus on abortion as a litmus test. We still have all nine justices who are or grew up either Catholic or Jewish. Those two religions provide very reliable assumptions about where they (and both adherents and ‘lapsed’) stand on the abortion issue. So reliable that the questions don’t even need to be asked in a Senate hearing anymore so we can pretend that abortion isn’t a litmus test. But both religions have been embedded for milennia in church-state mixing. Neither has the slightest real concept of the pluralism and non-hierarchical separation that originates in Calvinism. And the notion that either one of these religions has some unique monopolizable insight into denominational prejudice is also ludicrous.

        The result now is that every 1st Amendment case re religion is decided now with no actual insight and not even a remote understanding of ‘original intent’.

        1. How is taking less money from someone a subsidy?

          1. Other taxpayers have to take up the slack

    2. I thought Justice Kagan made a good point: If the program was discriminatory, and the MT Supreme Court killed the program in order to cure the religious discrimination, why is there a problem?

      Is your argument that the Blaine amendment needs to go, John?

      I cannot help but wonder why we don’t let MT solve this problem themselves. There has to be something I am missing.

      1. Yes, the Blaine amendment needs to go. It is contrary to the free exercise and due process. It is no different than an amendment that says no state funds can go to an organization that is more than 25% black or black owned.

        1. Ok, and that example (race) dovetails with the strict scrutiny test you discussed yesterday. Thx for the clarification.

          1. You are welcome. I think a state could ban aid that was specifically for religious institutions. But, I don’t think they can ban religious institutions from receiving aid that they are eligible for for reasons other than that they are religious. And that is what this decision does. It just does so in a rather awkward and draconian way of banning any aid program that religious groups are eligible entirely.

            1. I am actually surprised there was not something in Volokh Conspiracy. It would certainly be a nice break from impeachment.

  3. And so this prohibition is illegal. I live in California, and definitely we aren’t allowed any funding to any religiously affiliated entity, even when it is for educational purposes. The next argument that is going to come up is everyone’s favorite.
    But think of the children… People will claim that secular public education is so much superior to that provided by religiously affiliated schools, and that we are depriving children of educational opportunities. It is true that there are good public schools in California, but many and most are mediocre at best. I should know, I’ve worked at a few. Private schools are well established and are managed, and do teach curriculum, though there are a few that are nuts, but again, compare to the public schools and you will see the same. My kid who just graduated high school spent a year learning conspiracy theories (he still believes the moon landing was faked) at a Public School, and when I complained that it was innapropriate, the school did nothing! And for the record, I am an agnostic.

    1. “People will claim that secular public education is so much superior to that provided by religiously affiliated schools, and that we are depriving children of educational opportunities.”

      You mean you *want* kids to be taught nonsense and bigotry? Clingers like you will soon be replaced by their betters.

      Sorry, channeling the rev for a moment.

      1. I should have scrolled down – it seems the rev has beat me to it.

  4. My fellow libertarian capitalists should be clear, too, that there’s more at stake here than the rights of Christians and Catholics. If we want to transition to a society where private charity takes over for socialist, government, initiated by force, wealth redistribution programs that are taxpayer funded under threat of criminal prosecution, then we’re looking at letting a lot of people who do charity because they’re Christians take over for government.

    The transition from coercive, wealth redistribution to voluntary charity starts when we let people make voluntary contributions to charity in lieu of paying taxes. That is not the end of the transition to libertarian capitalism, but that’s how the transition begins. If you’re against beginning the transition to libertarian capitalism because the people leading the way on private charity believe in Jesus, then you’re not primarily a libertarian capitalist. You’re primarily a bigot.

    It’s sort of like attacking the patriotism of average Americans while simultaneously opposing a war and conscription. In a legitimately libertarian government, the Congress will sometimes declare wars you oppose. The primary reason you’re not conscripted into the military under those circumstances is because the patriotism of average Americans is such that more than enough of them are willing to volunteer for military service. Criticizing their patriotism per se is effectively criticizing the very thing that’s keeping you from getting conscripted.

    “For I was an hungred, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in:

    Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.

    Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink?

    When saw we thee a stranger, and took thee in? or naked, and clothed thee?

    Or when saw we thee sick, or in prison, and came unto thee?

    And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.”

    —-Matthew 25: 35-40

    If libertarian capitalism is about transitioning away from the coercive force of government taxation and transitioning towards private charity, and the people who are leading the way are doing so because of Jesus, and you’re criticizing them and refusing to let taxpayers fund them in lieu of paying taxes because of their Christianity? In addition to being a bigot, you’re also undermining the cause of libertarian capitalism.

    1. Great points, Ken.

      I would also point out that regular people AND the courts have misconstrued the meaning of 1A establishment clause. When the Constitution and BoR were ratified, some of the states actually had religious litmus tests for their elected representatives. The sole purpose was to prevent the federal government from establishing a state religion, e.g. the Church of England, not to prohibit public money going toward a religious institution or prohibit public figures from practicing their religion in public. Religion was very public at that time. For crying out loud, people debating theology in the streets. Today we get antifa.

      1. A lot of the logic of the First Amendment on religion had to do with the success of the Peace of Westphalia in bringing an end to the Thirty Years War. If whether you can practice your religion depends on whether the Holy Roman Emperor is of the same religion as you, then people will fight to death over whom should be the emperor.

        Freedom from establishment is about nipping that conflict in the bud. If your right to choose your own religion is protected regardless of the religion of whomever is in charge of the government, then the religion of whomever is in charge of government becomes a non-issue. We might not go to war over these issues anymore, but every time the government discriminates against a Christian for being Christian, they encourage other Christians to vote based on the religious beliefs of candidates rather than other issues.

        Peace of Westphalia = The Princes of each province choose their own religion (between Calvinism, Catholic, or Lutheran) regardless of the religion of the Holy Roman Emperor + The common people are free to practice their own choice (from among the three) regardless of the religion chosen by the provincial Prince.

        This proved to be an effective means to end the bloodshed.

        The First Amendment = Freedom from establishment + Free exercise.

        It’s basically the same as the Peace of Westphalia.

        We might add the observation that the Priesthood of Believers is a central tenet of Protestantism. That part of the Peace of Westphalia or the religious protections of the First Amendment may seem to be neutral because in practice, they don’t favor any religion over another. However, the idea that people should be free to read the Bible for themselves and choose their own religion isn’t neutral. If it’s a central tenet of Protestant theology, then the First Amendment represents the triumph of Protestant theology and the intrusion of Protestant theology into the Constitution.

        I am glad for that “intrusion”. Good, correct, and rational policies are good, correct, and rational regardless of where and how we find them, and just because an idea originated within one religion doesn’t mean it isn’t a great, perfectly legitimate idea.

        1. For the record:

          The main tenets of the Peace of Westphalia were:

          “All parties would recognize the Peace of Augsburg of 1555, in which each prince would have the right to determine the religion of his own state (the principle of cuius regio, eius religio). The options were Catholicism, Lutheranism, and now Calvinism.[12][13]

          Christians living in principalities where their denomination was not the established church were guaranteed the right to practice their faith in private, as well as in public during allotted hours.[17]”

          https://en.wikipedia.org/wiki/Peace_of_Westphalia#Tenets

        2. “It is a pleasing and persuasive example of pious zeal, united with pure benevolence and of a cordial attachment to a particular creed, untinctured with sectarian illiberality. It illustrates the excellence of a system which, by a due distinction, to which the genius and courage of Luther led the way, between what is due to Caesar and what is due God, best promotes the discharge of both obligations. The experience of the United States is a happy disproof of the error so long rooted in the unenlightened minds of well-meaning Christians, as well as in the corrupt hearts of persecuting usurpers, that without a legal incorporation of religious and civil polity, neither could be supported. A mutual independence is found most friendly to practical Religion, to social harmony, and to political prosperity.”

          —-James Madison, author of the First Amendment

          Emphasis added on Luther.

          https://www.patheos.com/blogs/geneveith/2015/01/luther-madison-and-the-two-kingdoms/

          He’s talking about Luther’s two kingdoms doctrine, by which we’re talking about the division of church and state. They really did write a Protestant point of belief into the Constitution that way, but those who question the validity of an idea based on its provenance are perpetrating a logical fallacy. If the idea had come from Ignatius of Loyola or Charles Darwin, it would have been just as valid.

          1. Ken,

            Your knowledge on this subject is a pleasant surprise. Full disclosure, I am off the Reformed faith so I was aware of this stuff. I find interesting your following statement, “If it’s a central tenet of Protestant theology, then the First Amendment represents the triumph of Protestant theology and the intrusion of Protestant theology into the Constitution.”

            I think most people today don’t realize that the Constitution was largely based on ideas that came from Protestant theology. Of course, the American experiment in this regard was a first attempt at something new. And it almost didn’t happen. Protestants are also guilty of persecution. If you are interested in further study of these topics, I recommend two books by Leonard Verduin, “The Anatomy of a Hybrid” (history of church-state relationships) and “The Reformers and Their Step Children” (how the Reformers turned around and persecuted other Christians who didn’t conform to their new order).

            1. The irony of atheists citing the First Amendment as a basis to damn Christianity may only be surpassed by, say, gay rights activists who damn Christianity on the basis that gay people should be treated the way we would want to be treated if we were them. This is not to say that the religious liberty of atheists shouldn’t be respected or that the government should discriminate against gay people. I just mean to say that these groups might enjoy better traction if they embraced the source of their arguments in our culture rather than denounced it.

              “Do unto others as you would have done unto you” and “Render unto Caesar what is Caesar’s and unto God what is God’s” has an origin in our culture, and if we want to score some points in the arguments, we shouldn’t deny the source of the Golden Rule and Separation of Church and State.

              Protestant churches are splitting in two because a huge portion of their members are susceptible to these arguments when they’re grounded in the Sermon on the Mount or elsewhere in the Bible. There is no good reason to make an enemy of Christianity generally, and certainly not when the best arguments for these things are grounded in and originate from Christianity itself.

              1. […] gay rights activists who damn Christianity on the basis that gay people should be treated the way we would want to be treated if we were them.

                I’ve never heard anyone bastardize the golden rule that way. Who does this?

      2. … you do realize that if you set Incorporation aside, then there’s no case here, right? Blaine Amendments are 100% in compliance with the “original intent” of the First Amendment. It’s only after you add Incorporation to the mix that there’s a question of constitutionality.

        1. I appreciate that you’re making a legal argument here.

          If Montana’s laws properly allow the government to discriminate against people on the basis of their religion, then their laws and/or their state constitution should be changed.

          1. I appreciate that you’re making a legal argument here.

            I’m not, actually. What would or wouldn’t happen without Incorporation is a matter of speculation, not the law.

            I was just annoyed at Moridin going all-in on “when ratified” then ignoring the elephant in the room on why none of that matters.

            1. You’re right, it’s speculation, because as we’ve seen, people tend to lose their nerve once they have the power in their hands, no matter what they’ve been saying they’ll do when they have it, when they don’t have it. Like when the Republicans in Congress kept voting to repeal the ACA until they were actually able to. I think it’ll be the same re abortions. There’s a strong wind blowing toward the status quo at all times from all points.

      3. Not even that, or more than that, depending how you look at it. “No law respecting” means no law on the subject, no law doing anything to existing arrangements. Therefore it was not only to keep Congress from establishing a church, but also to keep Congress from interfering with the states’ establishment or disestablishment of churches.

  5. Schools that teach nonsense — whether suppressing science to flatter superstition, instructing that the moon is made of green cheese, warping science to benefit dogma, or telling students that storks deliver babies — should not be subsidized by taxpayers.

    America’s better elements never should have tolerated accreditation of these goober schools.

    1. The argument that people shouldn’t be allowed to teach their religious beliefs to their children isn’t just bigoted. It ignores both the definition and reality of culture.

      Culture (/ˈkʌltʃər/) is an umbrella term which encompasses the social behavior and norms found in human societies, as well as the knowledge, beliefs, arts, laws, customs, capabilities and habits of the individuals in these groups.[1]

      https://en.wikipedia.org/wiki/Culture

      P.S. I seem to remember you saying things about how the economy works that are far dumber than creationism. It’s certainly more reasonable to assume that the universe is so big and complicated that it must have been initiated by God than it is to believe that Bernie Sanders or Elizabeth Warren have the God like power to know what’s better for 330 million individual market participants than each of those individuals know for themselves.

      1. You can teach your kids whatever you want. On your own dime.

        1. Actually, you can make donations to allow other people’s kids to receive a religious education, too, if they want, and any law you want to make that prohibits people from doing so violates the First Amendment.

        2. Great! When can I expect my refund on the money I’ve spent maintaining your Marxist reeducation centers for the last 50 years?

        3. *Institutes compulsory public education* *steals tens of thousands of dollars in taxes to pay for it* *criminalizes religious education* *criminalizes homeschooling*

          HURRRRRRRRRRRRRRRRRRRR You can teach your kids whatever you want. On your own dime. DURRRRRRRRRRRRRRRRRRRRR

          It’s a good thing you’re too fucking stupid to be dangerous.

      2. “The argument that people shouldn’t be allowed to teach their religious beliefs to their children isn’t just bigoted.”

        Parents should be entitled to teach religious belief to their children.

        This issue involves (1) schools that must comply with educational standards and (2) taxpayer funding of schools, not childhood indoctrination by superstitious parents.

        The credulous have rights, too.

        1. Saying that parents can’t send their schools that teach values that ignorant toothless bigots like you can’t understand and don’t like because if “violates standards” is just another way of saying they should not be allowed to do it.

          Normally, I would call someone making your argument disingenuous. But in your case, I have no doubt that your limited intelligence and education prevent you from understanding the implications of your argument. So, you are not being disingenuous, just dangerously stupid.

        2. “Taxpayer funding of schools, not childhood indoctrination by superstitious parents.”

          No is taxed by this law to support religious schools.

          Taxpayers are simply allowed to make donations to a generalized fund–if they choose–in lieu of paying taxes. Pretending the law is otherwise doesn’t make it so, and it doesn’t make it okay for the government to discriminate on the basis of religion either.

        3. re: “The credulous have rights, too.”

          Yes, RAK, you do. Most importantly, you have the right to continue exposing yourself as the most intolerant commenter in these threads. (And with the crazies coming out of the woodwork in the impeachment threads, that’s saying something.)

    2. Reverend…your alter egos are coming. I can just sense it. Let’s see if we can restate your comment to more accurately reflect your belief system.

      Schools that teach clingers should not be subsidized by enlightened taxpayers like me. Clingers don’t know our truth. So Clingers need to be re-educated to our truth, and if they stubbornly refuse the generous re-education we tax them for, need to be summarily replaced by their betters. We have a history of opening camps, so instead of Japs, we’ll put Clingers in there. Clingers will bow their heads to our altar….after they open wider, of course.

      1. You are welcome to believe that schools should be accredited or subsidized for teaching that storks deliver babies, the moon is made of green cheese, evolution is a satanic plot, the moon landing was staged, the Bible is nonfiction, the sun revolves around Earth, and that (certain) fairy tales are true.

        You should expect to continue to lose the culture war, though, to citizens who prefer reason, science, tolerance, modernity, education, and progress.

        1. Clingers just need to unconditionally agree to not question their betters. A stunningly simple concept. Other stunning concepts we need to explain to clingers are very important topics like gender fluidity, socialist economic theory and application, and how to construct a clinger gulag in twenty easy steps with written instructions (no pictures, because clingers look at diagrams and pictures). Clingers just need to open their….minds….wider.

    3. So you agree that US public schools, teaching the absurd “progressive” theocratic faith in Government Almighty, should be shut down?

  6. “Let’s say the state legislature “built parks and pools,” Roberts said, “but if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program.”

    Apparently, the Supreme Court allowed Jackson, Mississippi to close or privatize its public swimming pools to avoid integration.

    https://supreme.justia.com/cases/federal/us/403/217/#tab-opinion-1949354

    1. I think the difference here is that one is shut down based upon a discriminating law, and one is shut down based on discriminating beliefs. If a government gets out of a business because it’s people don’t want to help those people, that’s constitutional. If a government gets out of a business because a law makes it it illegal to be in business with those people, then that law is unconstitutional.

      Montana can choose not to fund private schools because the evil Christian’s might get some of the money. They can’t have a law that requires them to though.

    2. Palmer v Thompson is arguably different for a couple reasons. In MI, the decision to shut down the program was made by the local legislature. In MT, the decision was made by the Court. In MI, the decision was based on multiple factors. While racial animus was alleged as one of those factors, it was not proven (at least, to the court’s satisfaction). More importantly, the legislature alleged alternative reasons (economics) for closing the swimming pools. In MT, the Court specifically said that it’s reason was based solely on religion – specifically, the state’s Blaine Amendment.

      1. MI is Michigan, not Missouri.

  7. Get rid of public schools. Problem solved.

    1. How to get rid of public schools, though?

      Giving people a better choice may be a necessary place to start–even if that choice is a religious school.

      The road to Libertopia is paved with more and better options.

      1. Ken….Cyber-Charters might offer part of the answer. Technology has changed the way we deliver, process, store, access, translate and convey information.

        I sent my children to parochial schools for two reasons. One, the public schools in my towns were not good, despite tens of millions of dollars being poured into the system. Two, the morals, ethics and values taught in parochial schools. Now this was back in the late 90’s early 00’s, and our parochial school was using laptops back then.

      2. You know what this reminds me of? The gay marriage issue. I seem to distinctly remember conservatives arguing that the government should get out of the marriage business and that there is no libertarian position on gay marriage. Ok, but since it won’t, shouldn’t we make things equal for everyone, those with empathy asked. No! They replied. The only solution is to get the government out of the marriage business.

        1. “shouldn’t we make things equal for everyone, those with empathy asked”

          This applies only for certain definitions of “equal” and “empathy.”

          If “equal” means “treating unlike things the same,” and if “empathy” means “having the government signal its allegiance in the culture war no matter who gets hurt in the process,” then your use of those terms is totally acceptable.

        2. Why should the government get out of marriage? The reason is that government marriage is a restriction on freedom of contract. It is inherently coercive. If government marriage is not coercive and a restriction on freedom, there would be no reason to oppose government marriage.

          Given that government marriage is a restriction on freedom and coercive, you don’t then argue to extend its coercion and restrictions to more groups of people in the name of equality. You argue for getting rid of it not expanding it.

          The only reason gays wanted marriage rather than a contract system was so they could use the power of government to coerce people into accepting their relationships and lifestyle. Yes, straight couples get to do that through government marriage. And until gay marriage became an issue, libertarians said that was a bad thing and needed to be ended. But when gays wanted access to that power of coercion, libertarians decided that coercion was great and more people should be able to have the power to do it.

          It was a case of complete hypocrisy.

          1. The only reason gays wanted marriage rather than a contract system was so they could use the power of government to coerce people into accepting their relationships and lifestyle.

            Right, and not at all because our attempts, for decades, to use a “contract system” were regularly over-ruled, rebuffed, and often-times flat-out ignored.

            The closest we ever got to securing the rights and protections of marriage without it was adult-adoption proceedings. Everything else failed.

            But sure, go off I guess.

            1. Their attempts at a marriage system were as well. And a contract system was offered and no gay marriage advocates I know of supported it.

              They didn’t want a contract system. You can enforce a contract against the other party but you can’t make someone who is not a party to the contract recognize your relationship. That is what government marriage does. If you have a marriage license, I can’t say I don’t recognize your marriage for any reason. The state will come in and force me to do so and treat your marriage like every other. And that is what gays wanted. That is all they wanted. They wanted the power to force people to accept them. So, a contract system was of no use or interest to them.

              1. And a contract system was offered and no gay marriage advocates I know of supported it.

                You mean besides the ones that proposed them?

                And you do know that conservatives in over twenty states took civil unions off the table, right? Banned ’em by Constitutional Amendment. Conservatives made the explicit decision, early in the 2000s, that this would be an all-or-nothing deal.

                That is all they wanted.

                I wanted a hospital to respect my wishes and listen to my husband if I were incapacitated, rather then demanding my sister or parents fly out.

                It was anti-gay conservatives who invalidated our attempts to “contract” for our rights, over and over again. It was anti-gay conservatives who took civil unions and domestic partnerships off the table. It was anti-gay conservatives who made sure that it was going to be an all-or-nothing fight, that no compromises could be made.

                1. And you do know that conservatives in over twenty states took civil unions off the table, right? Banned ’em by Constitutional Amendment.

                  And then SCOTUS told them their votes didn’t matter and overruled it. That was over a decade before Obergefell. 13 states had legal gay marriage by the time SCOTUS imposed it on the nation. It’s hilarious how you simultaneously want to be a victim of the big bag system and then brag about how effectively you’ve wielded it against the breeders. But then if you weren’t a lying piece of subhuman mentally ill shit you probably wouldn’t be a faggot.

                  1. And then SCOTUS told them their votes didn’t matter and overruled it. That was over a decade before Obergefell.

                    … you think the SCOTUS overruled state constitutional amendments that banned recognition of civil unions in, or before, 2005?

                    Well, I have to give you points. At least this is fresh nonsense.

              2. Now, see, that is something we can and should get rid of: marriage licensing. Same as all government licensing. Marriage should be a question of fact. Let courts rule on that. Just as we can determine your dog is a dog and not a cat, regardless of dog license.

          2. Get government out of marriage? So when someone takes their insurer to court to get spousal benefits, the judge turns them away and says, “Sorry, we’re unable to tell who’s anybody’s spouse. Settle your differences with fisticuffs instead.”?

          3. “The only reason gays wanted marriage rather than a contract system was so they could use the power of government to coerce people into accepting their relationships and lifestyle.”

            Third parties like the Social Security Administration and the IRS?

        3. That’s not quite right. First, the conservatives argued that gay-bashing, including government gay-bashing, was the one and true way. Then — after being beaten in the marketplace of ideas by better thinking — they argued that government should get out of the marriage business, because they just couldn’t abide a gay person not being treated like dirt.

          1. No one cares what the voices in your head tell you. Telling people about them just makes them uncomfortable. So, do everyone a favor and keep them to yourself.

          2. Here’s a trivia question for you, rev:

            Which famous conservative referred to “the homosexuality that is spreading like a murky smog over the American scene”?

            https://msmagazine.com/2011/01/05/a-look-back-at-the-feminine-mystique/

            1. Answer: it was Betty Friedan. She said that stay-at-home moms were causing their sons to catch teh gay.

              https://www.theatlantic.com/magazine/archive/1999/09/mystique-betty-friedan/309205/

              1. … and?

                No one seriously denies that the US used to be a lot more anti-gay then it is today.

                But we put in the hard work and effort to change minds. It was more effective in the Democrats then the Republicans, but even they don’t openly advocate for sodomy laws like they used to, though they do openly consort with folks that do.

                Point being, yeah, US used to be pretty anti-gay. And it’s been getting better.

                1. My point is that the rev’s history is…let’s put it delicately…simplistic. It wasn’t “progressive” white hats and “conservative” black hats.

                  Friedan denounced homosexuality *as part of her progressive advocacy.* She proposed mothers working outside the home as a cure for their sons catching teh gay.

                  Ronald Reagan, on the other hand, defended the right of gays to teach in the public schools.

                  Now progressives declare that they have always been at war with Eastasia – I mean at war with “homophobia” – and they prove this by putting unwoke small businesses out of business.

                  1. Now we’ll see what happens to “gay rights” as progressives promote large-scale immigration from anti-gay cultures with little assimilation except the requirement to vote for Democrats.

                  2. My point is that the rev’s history is…let’s put it delicately…simplistic.

                    It’s the rev. Not a place for serious points.

                    Now progressives declare that they have always been at war with Eastasia – I mean at war with “homophobia”

                    No they don’t. Acknowleding, and apologizing for, past mistakes is pretty common. Hell, currently there’s a progressive effort to get California to apologize for, and pardon, Bayard Rustin’s sodomy conviction.

                    […] and they prove this by putting unwoke small businesses out of business.

                    (A) There is no business, small or otherwise, that has been put out of business by a non-discrimiantion lawsuit. So you aren’t talking about that†.
                    (B) Last time I checked, boycotts were a fully acceptable expression of Freedom of Speech and Freedom of Association, to all libertarians (though not to John, who calls them “economic terrorism”).
                    __________
                    †The closest you can get is “Sweet Cakes By Melissa”, where the Kleins realized they were making way more money being professional martyrs then they were making being bakers, and so shut down their storefront years before there was ever a judgement against them.

                    1. Whoops, should have clarified “by a non-discrimination lawsuit involving gay people”. There’s hundreds of such lawsuits, every year, for other categories and I can’t track them all.

                    2. Of course libertarians believe in boycotts…they believe in it so much that they actually think a business can “boycott” customers it doesn’t like – or, since “the greater includes the less,” sell to customers only on such terms as are acceptable to the business.

                      As for your claim that no small business was ever driven out of business, this is from as far back as 2012:

                      “The owner of Discover Annapolis Tours said he decided to walk away from $50,000 in annual revenue instead of compromising his Christian convictions when same-sex marriages become legal in Maryland in less than a week. And he has urged prospective clients to lobby state lawmakers for a religious exemption for wedding vendors.”

                      https://www.baltimoresun.com/maryland/bs-md-ar-annapolis-trolley-suspends-wedding-servic-20121225-story.html

                      And what about immigration?

                    3. “No they don’t. Acknowleding, and apologizing for, past mistakes is pretty common.”

                      You mean like the rev did?

                  3. And my claim was that they drove unwoke businesses out of businesses, not that they filed a lawsuit first in each case. Sometimes it works to do the equivalent of “nice business you got there, too bad if we sued you for all you’ve got.”

                    1. Many of the bigots found crowdfunding to work quite nicely.

                2. But we put in the hard work and effort to change minds.

                  Lawsuits and street violence could b considered hard work, I guess.

              2. Progressive discrimination against gays is a lot more recent than Betty Friedan in the 1970’s. “Don’t ask, don’t tell” (requiring gays in the military to stay in the closet, but discouraging investigations aimed at outing closeted gays) began in the Clinton administration, and was supported by most Democrats right up to the 2008 election.

        4. I seem to distinctly remember conservatives arguing that the government should get out of the marriage business and that there is no libertarian position on gay marriage.

          You remember wrong.

          There were some libertarians who suggested government get out of the marriage industry, but that was never a conservative position. Even after Obergefel, there was only a little bit of talk among conservatives, on the fringe, about ditching marriage to avoid letting gays marry.

          There was one state (Kentucky I think? Maybe Tennesee…) that did away with the marriage license, but the state still registered the marriage, just didn’t require pre-approval from the county clerk.

          1. Alabama is the state you’re thinking of, but they all look the same anyway right you open-minded freedom-loving faggot?

        5. “You know what this reminds me of? The gay marriage issue. I seem to distinctly remember conservatives arguing that the government should get out of the marriage business and that there is no libertarian position on gay marriage. “

          This argument reminds me of a straw man.

          Because the government has no business interfering in the relationship between two consenting adults because they’re of the same sex doesn’t mean the government should be free to discriminate against people because of their religion.

          1. P.S. I’ve never argued that the government has no business protecting people’s rights. I have repeatedly and consistently argued that if government has any legitimate purpose, it is to protect our rights.

            1. If you’re arguing that someone’s rights are being violated because third parties are voluntarily opting to fund a program that doesn’t discriminate against Catholic schools, then you need to explain why.

          2. Because the government has no business interfering in the relationship between two consenting adults because they’re of the same sex doesn’t mean the government should be free to discriminate against people because of their religion.

            … you do realize that the Montana Supreme Court, in 2018, shut down the program for everyone, right?

            1. I was responding to a specific argument, which, as I understood it, was asserting that because some “libertarians” (presumably around here?) were wrong about gay marriage, the government should be free to discriminate against Catholics. There is no larger point I was trying to make in that comment beyond responding to that specific argument.

        6. Yeah, I remember that. That’s when Marxist shitstains like you who pretended to be ”””””libertarian””””” decided that the only resolution to a problem was to make marriage a matter of federal law and pretended that people who thought it might be better to seek a solution that didn’t involve the total state were the ones restricting liberty. It was one of many occasions where you demonstrated what an abject piece of authoritarian boot licking subhuman dogshit you are.

  8. How, Kavanaugh stressed, is that not a constitutional harm?

    It would. Which is why it was shut down by the Montana Supreme Court in 2018.

  9. We might also try to compare Catholic schools participating in other government programs–like the kind of taxpayer funding Catholic universities enjoy by way of student loan guarantees.

    Everyone who thinks students who receive federal aid should be ineligible to attend Notre Dame, Georgetown University, and Villanova on the basis that they’re Catholic schools, raise your hand.

    I oppose student aid for other reasons–not on the basis that I want the government to discriminate against Catholics.

    1. If you apply the Montana Supreme Court’s decision to federal student aid (ignoring all the reasons this wouldn’t happen), then the result isn’t withholding federal student aid to students that go to Catholic schools, it’s ending federal student aid all-together.

  10. Oh-oh! Are the “conservative” justices saying a state might be required to resume a positive program because failing to do so would be discriminatory? Like it was discriminatory in that Colorado case where a voter initiative would’ve amended the constitution to forbid adding sexual preference to the non-discriminable classes?

    All fine when it’s a tax credit or deduction — I’m always for letting people keep more of their money — but what if it sets a precedent they then follow to require taxing and spending?

    1. Yes on the second paragraph – it’s one thing for the government to reach into Harry the Hebrew’s pocket and give the money to Joe Bob’s Christian Academy. That would be a problem. You could even say it’s compelling people to pay for religions they don’t belong to and/or don’t want to support.

      But what if Harry the Hebrew *chooses* to give some money to a private-school scholarship fund (knowing the beneficiaries include students at religious schools)? And the government then gives Harry a tax break? Is the government *forcing* Harry to pay for religion?

      Indeed, the regular schools have enough ideological instruction that a cynical person could call it religious. Should Harry the Hebrew or Jerry the Jain or Billy the Baptist be forced to pay for the multiculti stuff they have at many public schools?

  11. How about exempting secular private schools from taxation equal to their mystical competitors’ as a “most favored school” clause? This lessens discrimination, obviates many local taxes, and–since only government schools breed amok berserker child shooters–also reduces a menacing health hazard.

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