School Choice

The Montana Blaine Amendment Case and the Need for a Consistent Approach to Discrimination on the Basis of Religion

Conservatives want courts to consider the governments' bigoted motives in enacting anti-Catholic Blaine amendments, but not when it comes to Trump's travel ban. Liberals tend to be inconsistent in the opposite way.

|The Volokh Conspiracy |

 

James G. Blaine, the 19th century politician who inspired the Blaine Amendments.

 

On Wednesday, the Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue, a constitutional challenge to Montana's state constitutional Blaine Amendment, which forbids the use of public funds to pay for instruction at any religious school. The plaintiffs argue that Blaine Amendments are unconstitutional because they discriminate on the basis of religion. One way in which they do so is by barring religious schools from receiving public funds and benefiting from vouchers given to students even though otherwise similar secular schools remains eligible to do so. But another reason is that the various state Blaine Amendments were enacted in the late 19th century as part of a wave of anti-Catholic bigotry.

On their face, the Montana Blaine Amendment and its cousins enacted in numerous other states are neutral as between different religious groups. They ban "any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or 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." But, in reality, the main motive behind them was specifically to prevent Catholic schools from receiving any form of state assistance, even as public schools routinely promoted Protestantism in various ways.

For years, conservatives have argued (correctly in my view) that this bigoted motivation makes Blaine Amendments unconstitutional. This issue also features prominently in the briefs and oral argument in Espinoza. For example, Justice Brett Kavanaugh, a longtime critic of Blaine Amendments, emphasized during the oral argument that these laws were "rooted in—in grotesque religious bigotry against Catholics." The Trump administration's amicus brief in the Espinoza case points out that "the Blaine provisions have 'a shameful pedigree' and were 'born of bigotry'"as a way of distinguishing them from other limitations on state funding for religious education that the Supreme Court had previously upheld. By contrast, liberal defenders of the Blaine Amendments argue that the bigoted motivations behind their enactment should not lead to their invalidation under the First Amendment and Equal Protection Clause today.

At the same time, however, most conservatives vehemently rejected scrutiny of decision-maker motives in the 2018 travel ban case, despite the fact that Trump's anti-Muslim motivation for barring citizens of several Muslim-majority nations from entering the US, was at least as blatant as the anti-Catholic bigotry behind the Blaine Amendments. The alleged security rationale for the travel ban was a transparent fraud.

In a recent speech before the Federalist Society, Attorney General William Barr used the travel ban and other cases against his administration as examples of how courts should not be allowed to scrutinize political decision-makers motives. Yet, for some reason, the Attorney General failed to instruct administration lawyers to avoid motive-based arguments in their amicus brief in Espinoza.

Many liberals display similar inconsistency in reverse. They were outraged (correctly in my view) when the Court refused to give more than minimal consideration to Trump's bigotry in the travel ban case. But they would like the justices to overlook the  motivations behind the Blaine Amendments.

I decried this inconsistency in a 2018 post, as did liberal Harvard law professor Noah Feldman, in a column written around the same time. Sadly, our admonitions have mostly fallen on deaf ears.

Cynics might say that all of this is really just a matter of whose ox is being gored. Many conservatives are willing to turn a blind eye to religious bigotry when the targets are Muslim refugees and would-be immigrants. Many on the left are happy to do the same when the likely result of striking down Blaine Amendments would be to allow school choice programs that include theologically conservative religious schools that promote values many on the left dislike, or even abhor.

Such cynicism may well be justified in some cases. But I hold out hope that many of those who hold such contradictory attitudes do so in large part because they simply haven't considered the possibility that there is a tension between their views on the travel ban case and their positions on Espinoza. More careful reflection might perhaps lead them to reconsider.

One possible way to resolve the contradiction is to take Bill Barr's position more seriously than he seems to do himself, and consistently abjure judicial consideration of the motives behind government policies. If a law or regulation does not discriminate on its face, that it must be upheld. But doing so would open the door to bigoted and discriminatory government policies on a wide range of fronts, and would undermine effective enforcement of numerous constitutional rights.

Like Noah Feldman, I instead advocate that courts should allow consideration of motives in both cases, and consistently strike policies that were enacted for constitutionally impermissible purposes, and the evidence indicates they would not have been put in place otherwise. I outlined the reasons why in some detail in my 2018 post on this subject, and in various other writings on the travel ban case, and its relationship to religious liberty claims favored by conservatives, such  as the Masterpiece Cakeshop case decided just before the travel ban ruling. Elsewhere, I have also rebutted claims that immigration policy, as in the travel ban case, should be exempted from scrutiny of illicit motives that applies to government policies in other areas.

Judicial review should be a strong bulwark against religious discrimination by the state regardless of whether the victims are Muslim migrants (the travel ban), Catholics (the Blaine Amendments), or theologically conservative Protestants (Masterpiece Cakeshop). And bigoted policies should be struck down regardless of how the left and the right may feel about the groups they target. We have not yet fully realized this ideal, and all too many people seem willing to ignore it when it seems convenient to do so. But it doesn't have to be that way.

NOTE: The plaintiffs in the Espinoza case are represented by the Institute for Justice, which which I have a longstanding relationship, and which I have done pro bono work for in a number of other cases. I do not, however, have any involvement in this one.

 

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  1. Montana’s amendment was adopted in 1972 under an different set of justifications than the anti-Catholicism of other states’ similar amendments. Even if the reasoning in this post is correct, it doesn’t apply to the Montana case.

    1. That pretty much takes the air out the OP’s sails.

  2. Yeah I find this a bit disingenuous even though I wanted to agree with it. The motives of those passing bills in the 19th century and early 20th centuries carry no water with anyone. No one in the mainstream ever makes the argument that minimum wage laws should be abolished because the original motives for them were racist. The same is mostly true for drug prohibition and gun regulation. I think you’d have been better off either comparing the Blaine Amendment to those or Trump’s travel ban to another law that was recently passed with dubious motives.

    1. Few people do make the argument that minimum-wage laws, drug prohibition, and gun regulation are racist in intent, not just in effect, but more people should.

  3. I don’t buy your argument.

    Blaine Amendments should fail because they explicitly discriminate against religion in general, even if they were in fact aimed primarily at Catholics. Something tells me that Sen Blaine would not have been a big fan of subsidizing Madrassahs or Yeshivas either, but that is for another day.

    However, they would withstand challenge if they had banned subsidizing any non-public school, regardless of the legislators’ underlying motivation.

    1. Yup, Somin just ignored that point. You don’t need to go into motivations when Blaine amendments on their face discriminate against ALL religion.
      Now to what extent that is allowed by the 1st Amendment is debatable. After all, the Establishment Clause in some ways discriminates against religion. OTOH, the Free Exercise Clause forbids such discrimination. So the two have to be harmonized.
      But nothing requires one to examine the motivations here to find that the law is disciminatory.

      1. There’s not really a conflict between the free exercise and establishment clauses: Congress may make no law “respecting” an establishment of religion, which is to say, having to do with an establishment of religion.

        Where an “establishment of religion didn’t mean any old religion or institution of a religious nature, it mean an established church, like the Anglican church in England, or the Episcopal church in Maryland.

        The federal government could neither establish its own state religion, nor mess with the states own established religions. The whole topic was off limits.

        This in no way conflicts with the command that no federal law prohibit the free exercise of religion.

        With the incorporation of the 1st amendment, the states are similarly prohibited from having established churches or prohibiting the free exercise of religion, but these commands still don’t conflict with each other, because a general favorable legal environment for religion isn’t an establishment of any of them.

        1. The problem is, you can say this but it just isn’t so, because we have decades of caselaw that a government can “establish” a religion by favoring it.

          And, by the way, those cases are not implausible. Indeed, part of the problem with the “there’s no conflict” position is that it ignores that favoring particular religions, or religion over non-religion, can itself interfere with the free exercise of religion. Non-protestant schoolchildren compelled to say Christian prayers, for instance, really did have their own religious freedom interfered with.

          Another example is the Sharia law cases Prof. Volokh sometimes blogs about. The establishment clause has been held to prohibit judges from adjudicating internal religious disputes. You think that’s wrong? I don’t think many lawyers do.

          So you can’t say now, 70 years or more down the line, that we are going to simply overturn all those caselaws. You have to make it all fit together.

          1. I remember all the Irish and Italian and Polish kids I went to grade school with listening to readings from the King James Bible. We didn’t get the problem at the time, but mainly because we didn’t want to be in school, let alone pray in it or have Bible verses read to us in it. When it all ended, none of us cared.

    2. That is exactly what the Montana Supreme Court decided.
      The program in question allowed vouchers for religious schools in violation of the Montana Constitution. The US Constitution based on Supreme Court precedent barred discrimination against religious organization for generally applicable programs. They therefore decided the entire program was Unconstitutional.

      I can live with that. It’s called Federalism.

      1. Federalism stops where there’s a first amendment violation. The US Constitution’s ban on discriminating against religious institutions trumps the Montana constitution’s requirement that the state discriminate against religious institutions.

    3. No, they are saying that public monies shouldn’t be going to support institutions that are religiously discriminatory. Can all creeds; beliefs observances and practices, attend these schools freely? If not then government money collected from all creeds shouldn’t be spent on them.

      A Catholic school shouldn’t be able to get money from Baptist citizens just as the other way around shouldn’t be allowed.

      1. I don’t think I’ve ever run into a religiously-affiliated school that forbids other creeds, belief observances, and practices from attending. Certainly, if the law forbade public support to institutions that did, I’d agree that the law is Constitutional. But what the law does is discriminate on the basis of religion if those schools that aren’t religiously affiliated can get money, and those that are can’t. It seems blindingly obvious that if the government is going to give money to private schools, it can’t pick and choose on the basis of what religion the founders of the school practice, as long as the school is not itself discriminatory. The government isn’t forcing anyone to attend those schools, people are choosing to attend them.

  4. With all respect to Mr. Somin (and others who believe motives ought to be examined), the discernment of motives behind enacted law is a fool’s errand. Who’s motive do we examine, each legislator who voted “yea, all legislators, the staff who likely wrote the legislation? And, how do we assess motive? By their public statements, or private statements? Or what something else thinks they meant? Laws are the expression of each legislature that enacted them. They often represent compromises, trades and all sorts of deals. Judges are not trained psychologists or mind-readers. They understand language and, at their best, can reasonably determine what the words of the statute means.

    1. For what it’s worth, I agree. When one starts looking at the legislative debates and floor speeches, it get even murkier, because a politician will often say and imply things that the law does not actually entail, as a form of re-election signaling.

      1. NOT HELPING THE LAW’S CASE ANY

    2. You’re ignoring Kennedy’s Animus Doctrine which allows judges to peer into the hearts and minds of legislators and strike down any law based upon what they find.

  5. The cases are apples and oranges.

    Assuming, arguendo, that there was religious animus in the travel order, it wouldn’t matter, because a non-U.S. citizen in a foreign country is not entitled to protections of U.S. non-discrimanation law under the First Amendment or otherwise. Congress has plenary power over immigration, and had delegated some of that power to the President in this case.

    When it comes to domestic legislation, however, federal and state lawmakers are bound by the strictures of the Constitution, which forbids religious discrimination per the First Amendment.

    1. Good point, I didn’t think of that.

    2. FD, I disagree. Constitutional rights have two components; the right of the individual to not be discriminated against, and the duty of the government not to discriminate. Even if I agree that a non citizen has no (or at least far fewer) rights, the government is still precluded from preferring one religion over another regardless of context. And for several very good reasons.

      1. I think the issue with this line of reasoning, is that despite Trump’s supposed animosity towards Muslims, he didn’t ban travel for citizens of all Muslim majority countries, and he also banned travel for citizens of countries that aren’t Muslim majority.

        As I recall, the cited issue was a lack of sufficient background and data control regarding those country’s immigration departments. Now, maybe that’s all just a cover for Trump’s anti-Muslim bigotry, but then we’re back to parsing people’s internal motivations for things.

        And obviously, as a crazy-as-a-loon libertarian, I’d prefer that no country exercise that level of monitoring over their citizens, including the US, but that’s sadly not the planet I live on.

        1. That’s after the third revision of the policy to make it pass muster; still stinks of pretext to me.

          Doesn’t matter; the Supreme Court rejected that reasoning.
          Animus doesn’t apply there, so it certainly doesn’t apply to these long-standing Constitutional clauses. (leaning a bit on constitutional liquidation.

      2. Krychek_2, the 7th Circuit is currently deciding whether the constitution permits Indiana to prohibit sex-selective abortion. Is it your view that the “government cannot discriminate” component of the constitution prohibits government from funding them? If so, you would be consistent.

        But I think current precedent suggests that where constitutional rights don’t apply, government duties don’t apply either. Government can fund sex-selective abortion’s. It can recognize theocracies as states and apply their religious law as a matter of comity in disputes involving their territory or citizens. It can do all kinds of things where both fetuses and foreigners are involved that it cannot do for citizens.

        1. ReaderY, I disagree with your premise that the fetus has constitutional rights. I’d prefer not to do a thread hijack and make this about abortion, so I won’t go into more detail as to why, except to say that I disagree with the premise of your question.

          For sake of argument, however, suppose I do agree with you that the fetus has constitutional rights. If the government isn’t paying for the abortion, then it’s a private matter, there is no state action, and so no constitutional rights are implicated (unless you’re arguing that the government has a duty to prevent private actors from doing what the government can’t do, which I think is a stretch).

          If the government is paying for the abortion, then we have rights in conflict: The woman’s right to control over her reproductive system, versus the rights of the fetus. That, then, gets analyzed using the same standard as any other time we have rights in conflict: We balance them to decide which right is more important. Again, I don’t want to do a thread hijack and make this about abortion, so I’m not going to say how I would balance them were I a judge, but that’s the standard.

          And I think it’s too simplistic to say that where constitutional rights don’t apply, government duties don’t either. Sometimes that’s true; sometimes it isn’t. A non-citizen who is criminally prosecuted by the US has the full panoply of rights a citizen criminal defendant would have, even if the crime happened outside the US and he was brought here against his will for trial. We do recognize nations that are theocracies, and we also provide asylum to citizens of those nations who are the victims of religious persecution.

          Suppose if, instead of a flat ban on citizens and nationals from certain countries, it had been a ban on Muslims from those countries. If you are a citizen of that country, and you are Jewish, or Christian, or no religion at all, you can visit the US. Muslims, however, must stay away. Would you say that is constitutional? I wouldn’t.

          1. But my premise is exactly that the fetus has no conctitutional rights, which is what makes it a reasonable comparator. You say that government has obligations separate from whether rights exist or not, that persist even when rights don’t. If that’s the case, why wouldn’t it be the case here?

            Criminal prosecution is easy. The constitution refers to “the accused.” It doesn’t matter whether “the accused” is a person or not. If the framers had wanted to limit these rights to persons subject to Due Process, they would have said so. “The accused” has a right to be present at a trial in the United States. And once in the United States, Due Process applies.

            1. Because neither duties nor rights can exist separate from each other. If I have a right to something, someone else has a duty. If I have a duty to do something, someone else has a right. There is no such thing as a free-floating right or duty; they exist together or not at all.

              And yes, I did say above that even if a non-citizen has no or fewer rights, the government still has a duty not to discriminate. That’s because the government has a duty *to its own citizens* not to prefer one religion over another. Because even if the people suffering the immediate harm are non-citizens, it still sends a message to Muslims who are citizens that their religion has second class status. Think of it this way: People forced to sit at the back of the bus get to the destination at about the same time as those at the front of the bus (plus a few minutes additional time getting off the bus), but that’s not the point.

              You’re right that the Constitution does not mention citizenship in the context of criminal proceedings. But I don’t see that it mentions citizenship in the First Amendment either.

              1. I have said this for years, but one reason the “14th Amendment prohibits abortion” argument has never risen beyond a few absolute right wing crazies on the Internet is because serious thinking legal conservatives know that the last thing they want is to create a duty to protect within the 14th Amendment. That’s a recipe for all sorts of liberal results and the striking down of all sorts of conservative policies.

                1. Dilan, I think you’re right but I also don’t think it matters, because there is so little actual principle any more. You saw how deftly the Republicans who said you don’t need an actual crime to impeach Bill Clinton have now changed their minds since it’s one of their own who is now on trial. Or how insistent McConnell was that Obama not get a Supreme Court appointment in his last year, while admitting he would allow Trump a final-year appointment.

                  My prediction is that if a future Supreme Court ever actually did hold that the Fourteenth Amendment bans abortion, and the liberals then attempted to use that ruling to strike down conservative policies, you would simply see an unprincipled “that was then, this is now” and those conservative policies would remain firmly in place. We’re well past the time when consistency means anything.

    3. Yes, refusing to let somebody enter the US doesn’t interfere their free exercise of religion, it merely requires them to engage in it elsewhere. In the same way that prohibiting your entry into a military base might prevent you from praying there, but it doesn’t prevent you from praying.

      Anyway, Trump never tried to implement a Muslim travel ban. He implemented a ban on travel from a handful of states irrespective of the religion of the proposed traveler, and to be serious, it didn’t hinge on the dominant religion of those countries, either, it merely imperfectly correlated with that factor.

      1. Yes, refusing to let somebody enter the US doesn’t interfere their free exercise of religion, it merely requires them to engage in it elsewhere.

        By this reasoning, government can explicitly discriminate among religious sects in the distribution of any benefit.

        If Trump v. Hawaii is rightly decided, it is because of the special deference given to the political branches on immigration policy. It’s not because it’s OK for the government to discriminate among religious sects in distributing government benefits.

  6. Do you also feel that a person who didn’t see a problem with the so-called “Muslim ban” but thinks that religious schools (even Muslim schools) should be able to recieve the same funds from the state as non-religious schools?

    1. Sorry. No edit button. My question should have ended with “…is a hypocrite?”

    2. As a point of order the Montana Supreme Court didn’t say that. In fact in fully acknowledged that is unconstitutional. But that means there are two ways to get rid of discrimination a) allow funding to religious schools or b) not allow it for secular schools. They chose the latter because that is consistent with BOTH the 1st and Blaine Amendments

      1. Which in itself may be animus towards religion.

        Oh geeze, some of this money has to go to minorities? To heck with it, cancel the whole thing.

        1. Why does government have a duty to subsidize any non public schools, or even public schools for that matter?

  7. Also, your approach would allow some laws and executive rules to be allowed or disallowed based upon who was in office.

    No matter how pro open borders you are I don’t see how even you could defend that, Ilya.

    1. He does not openly defend that, he advocates it. He acknowledges that the very same “ban” would Constitutional if promulgated by the Obama Administration, but must be struck down as unconstitutional when promulgated by the Trump Administration.
      And he fails to see how such a position undermines the rule of law and breeds contempt for the judiciary.

      1. As ever, I hope I’m never in a court of law for anything lest I end up quoting Transformers: The Movie.

        “Silence yourself or we will hold you in contempt of court.”

        “I have nothing but contempt for this court!”

        😀

    2. They absolutely have made that argument with regards to President Trump.

    3. In fact in some of the travel ban cases some comments were made that the ban could have survived if not for the thought crime.

  8. Blaine Amendments to me are not unconstitutional on their own. They are only unconstitutional if it actually causes a discriminatory effect. Here that isn’t the case. The Montana Supreme Court said that the Blaine Amendment prevents the benefit to religious schools and since that causes discrimination it can’t be used for secular schools either. Therefore there is no discrimination. The Amendment restricts what the legislature can do for both religion and secular. We don’t want benefits going to religious uses so you can’t do that and also can’t give those benefits to secular institutions unless you can do it without discrimination. That is perfectly consistent with the 1st Amendment.

    1. This is a perfectly valid position.
      But I can see a counterargument. The Montana legislature said, we want a benefit (actually a tax credit) to be allowed for all private schools, religious and secular. That, IMO, is perfectly allowed by the 1st Amendment.
      The Montana Supreme Court then struck that down because of Montana’s Blaine amendment. But, then faced with the 1st Amendment, they had to come up with the solution they did — no tax credit for any private school.
      So their ruling was based on resolving a tension between two provisions, one of which (the Blaine amendment) is, arguably, unconstitutional under the federal 1st Amendment.
      If the Blaine amendment is unconstitutional, then it should have played no part in the Montana Supreme Court’s consideration at all — it had no legal validity. That would have left only the statute and the 1st Amendment, and the statute upheld.

      1. I guess my issue with that is the notion that a Blaine Amendment on it’s own can be seen as discriminatory. If it is used instead of the 1st amendment then it obviously is, but if it is used in conjunction with it to restrict what a legislature can do then it isn’t. And state constitutions can obviously restrict the state government.

        I guess my issue is if the legislature on its own did this. That is they voted no to this tax credit because they didn’t want to help religious schools that is still constitutional. No one could go to court and say them voting no was for unconstitutional reasons so the court should make it law. That is really all the Blaine Amendment does the was the Montana Supreme Court reads it, as a restriction on laws the state legislature can enact.

  9. Can someone please explain to me how to argue in favor of an entirely secular system of government, which is also pledged to avoid interfering with religion, or establishing religion? Because that is what I want to see, but based on arguments offered here it looks impossible.

    1. The answer is all about how you define “interfere.” The Free Exercise clause is largely read as a non discrimination provision. You probably want it read more as you can’t stop people from practicing but we don’t have to help you even if we help secular purposes. Some would say that is interfering with religion because it makes it harder to practice religion then similar secular things. So the argument you have to make is that Free Exercise clause is not a discrimination provision it is a leave us alone provision (though that may call into question Employment Division vs Smith which I assume you probably like).

    2. One way to do that would be to simply not have government in charge of education.

      1. Keep waiting for that miracle, M L., and the anti-social, disaffected, right-wing paradise.

    3. Note that, when it comes to making religion bend the knee and violate its creeds, “it’s a law of general applicability!” is trotted out.

      But when a religion might take advantage of a bonus, as with payments for this or that to all schools, public or private (playgrounds were one different thing some time past) then the same side conveniently forgets “general applicabilty”.

      1. Methinks you’re generalizing based on this state case far too much.

        1. Maybe he remembers years of court cases other than this one, like the one he mentioned?
          Which you seem to have conveniently forgotten.

  10. The Blaine amendment motivation is irrelevant and I am at a loss to understand how a libertarian philosophy can support government resources being directed at religious schools.

    A fundamental principle of democracy and freedom is that no individual should be forced to support a religion. Yet that is what happens when government resources are directly or indirectly provided to religious sponsored schools that advocate for their religion. Thoreau settled this issue over 150 years ago.

    A libertarian should be at the forefront of the battle to allow citizens the freedom not to be compelled to promote not just a specific religion but any religion at all. Where are those small government, conservative libertarians when we need them.

    1. The Blaine amendment motivation is irrelevant and I am at a loss to understand how a libertarian philosophy can support government resources being directed at religious schools.

    2. The Blaine amendment motivation is irrelevant

      The motivation is often the only importan thing, and is always important in any case.

      Why should we be burdened with laws directing behavior, approved for reasons that have nothing to do with that?

  11. “the Need for a Consistent Approach to Discrimination on the Basis of Religion”

    First, define religion.

    1. It seems to me that some belief systems, which are not specifically directed toward some supreme being(s) or spiritual ends like Marxism, Militant Atheism, some forms of Progressiveism are effectively the same as a religion for their adherents.

  12. This may be water under the bridge but I’m not sure the bill of rights should have been “incorporated” against the states. Basically spells the end of federalism.

    1. Yeah, all states have the same laws these days.

      Between this and you constant defending of the Confederacy, if you just want the status quo antebellum except no slavery, I don’t know why you don’t just say so.

      1. On the contrary, I would go for the status quo today except yes to federalism.

  13. Yes and No Professor Somin. Your post motivated me to read the SCOTUS transcript of the oral arguments in this case. It was fascinating reading to this citizen, so thank you for that. I have added watching a SCOTUS argument live to my bucket list. 🙂

    Yes: We really ought to have a consistent framework
    No: That takes motives and motivations into account

    My rationale is simple: It is one thing to say something, quite another to do something. Actions are real and concrete. Motivations are malleable and not concrete. Big difference.

      1. The Santeria case….Yeah, I remember when that decision was made. I note Justice Scalia was not a fan of divining intent. He was right, and I think Professor Somin is wrong.

        I actually enjoyed reading the transcript of the argument. Seriously, they all have a pretty lively sense of humor – especially Justice Breyer. The questions the Justices ask are amazing. That is where I really learned the essence of what was at stake. In particular, Justice Sotomayor’s questions and explication on balancing of competing principles was outstanding…and I don’t agree with her general judicial orientation.

        Before I die, I absolutely must witness a SCOTUS argument, just as an interested citizen.

      2. If you read that case carefully, it actually supports the view that mere motivation is not enough. The Court there carefully considered the text and operation of the law at issue, and concluded that it was targeted solely at suppressing religion, even if that targeting was masked or attempted to be masked.

        Here is one example from that opinion:

        The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the oris has, not food consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished.

        . . .
        In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.

  14. Ilya, your view that the Trump administration’s amicus brief in this case is inconsistent with AG Barr’s views on judicial review of legislative motivations is not warranted.

    The administration’s amicus brief references the history as a single sentence that is the last part of the third of three grounds to distinguish Davey, rather than as standalone grounds to review the statute. As this reference is to distinguish a prior judicial decision, and as not all members of the Supreme Court have disavowed consideration of legislative motivations, including this sub-argument (particularly with such de minimis treatment) is entirely appropriate regardless of the administration’s and the AG’s views on such considerations generally.

  15. I have long had difficulty with the Court’s animosity jurispridence.

    If you look at the Civil Rights Act neutrally, and see it as prohibiting E.g. sexual preference in commercial relationships, it seems to me you find exactly the same evidence of animosity as in state prohibitions regarding sexual preference in domestic relationships. Court decisions are full of passages calling “sexism” a “scourge,” a “stain,”“invidious
    ,” and lots of other really nasty, hate-filled words. They say the federal government has an interest in “eradicating” it, as if it somehow has no obligation to protect all its citizens, of all preferences, equally. You have to have a “legitimate” business interest, meaning the state and the courts are labeling people of preferences’ very interest in participating in commerce as somehow illegitimate.

    And there are some really weird distinctions. In a school, the state supposedly has a heightened interest in children growing up in a gender-diverse environment. Yet in a domestic environment, not only does the state magically have no such interest at all, even claiming the state has such an interest, that a straight, “gender-diverse” environment is somehow better than a same-sex one, is itself evidence that ones views are based on animosity and hate.

    In my view you can’t have it both ways. What’a sauce for the goose has to be sauce for the gander. You can’t declare opposition to the one to be Irrational animosity, then use exactly the same rhetoric and arguments in your explanation of why the state’s interest in the other is irrational or compelling.

    I greatly prefer a jurisprudence in which the court declares morality the providence of legislatures and upholds anti-discrimination laws as ordinary morality laws, as the courts did in the 1960s (and then used morality language in enforcing them), then a world where courts have license to use their powers to support their friends and get at their enemies, where almost identical rhetoric and arguments are presented as evidence of compelling interest where their enemies are involved, and presented as evidence of irrational animosity when it’s their friends.

    I think you could easily reach the result in Lukumi Bablo Aye (without making much of a dent on Smith) with a rule that a state can’t specifically prohibit a religious practice as such, without bringing in animosity jurisprudence.

    The court’s

    1. I think the best example of the flaw in animosity jurisprudence is John Calhoun’s defense of slavery, in which he argued abolitionism was pure animosity, based on nothing but baseless hatred of slaveholders and religious superstition. When we are strongly, emotionally attached to something, we see its basis as obviously compelling, and it’s opponents as obviously motivated by hate. It doesn’t matter what it is that we are attached.

      The justices err in perceiving their own personal perspective as objective truth.

  16. In my view, Montana generally has a rational interest in treating religion differently. It has a great deal of control over secular schools. But, as Hossana-Tabor makes clear, it’s ability to control religious schools is much more limited.

    If the state funded churches who accepted female (or gay) pastors but not ones who didn’t, that would clearly be an unconstitutional establishment of religion. The state can’t fund churches whose doctrines it likes (or who accept the doctrines it designates as orthodox) and not the ones it doesn’t.

    One way out of the dilemma is not to fund religious organizations. We only fund what we can control. It strikes me as a rational basis. Religious institutions really are different from non-religious ones in that respect.

    In general, I think the “play in the joints” approach makes sense. States can fund secular activities of religious institutions. But it’s not clear to me they have to.

    I support broad interpretations of the Religion clauses by which government generally has to leave religion alone and let them say and do things government may find abhorrent. But I don’t think government has to pay for it. Simply not funding religion at all is a neutral way out of it.

    1. “Simply not funding religion at all is a neutral way out of it.”

      That’s the future. Republicans will be furious about the damned progress, as usual.

      1. Why can’t religious schools take advantage of “laws of general applicability” yet business people who are religious can be forced under that yoke?

        In both cases, it seems hurting religion is fine, yet opposite applicability.

        1. The answer is straightforward. The Constitution has been interpreted to give religious institutions, as institutions, special rights that religious individual, as individuals, don’t have.

          These rights, which are specially relevant to schools, include what messages a religious institution should spread and who should spread them – in other words, what to teach and who can teach it.

          For secular schools, government has significant latitude to regulate both. It can ban various kinds of discrimination, enforce wage and hour laws, make and enforce curriculum standards, and more. Religious schools, however, have special tools non-religious schools simply do not have available to them to insulate themselves from these rules.

          Hosanna-Tanor held that if a religious school uses ministers as teachers, then minister-teachers are not subject to a broad range of regulations regular teachers are, including discrimination laws, wage and hour laws, and more.

          Similarly, government’s inability to interfere in a religious institution’s propagation of religious doctrine means it is limited in what it can require religious schools to teach or not teach.

          None of this applies either to secular schools, or to individual religious people and their private businesses.

  17. Modern public schools are themselves at odds with both the 1st Amendment and any Blaine Amendments the state may have in place. Just because you pretend you aren’t a religion, does not make it so.

  18. Not too sure that there can be an approach to religious discrimination that has parity with religious discrimination. As Justice Breyer, the champion of “why is this one thing not like the other thing” inquiry noted at the Espinoza hearing, there is no Establishment Clause respecting race.

    Yet this question of intent bothered me after the hearing, much more so than it did when reading all of the arguments about the Blaine Amendment’s ‘intent,’ which were irrelevant in an as-applied challenge.

    I am not at all sold on the idea of delving into legislative intent as an interpretive device, but by the same token I am not through thinking it through. It occurs to me that it is not inconceivable that a good legislative result could ensue from bad motives, or that a bad legislative result might ensue from the most pristine of thought.

    So there’s that…..

  19. On the merits,

    1. I don’t see a problem with standing. The parents had benefited from scholarships for years. As a result of the Montana decision, they lost their scholarships. If they the decision is reversed, something within the power of the Supreme Court, I think it’s very likely they will get them back. This seems to meet all the requirements of Article III standing. Nor do I think that taxpayers pay the money and schools receive it is a problem. When people claim they have lost their health benefits or rent subsidies, courts don’t claim they lack standing because it’s actually hospitals and landlords who receive the money. The fact that they receive the benefits the money buys is enough to give standing for Article III purposes. I see this as similar.

    2. Having shown standing, I think the fact that the Montana Supreme Court struck down the entire program means no discrimination occurred and hence the plaintiffs lose on the merits. The Montana Supreme Court was entitled to read the constitutional provision as implying that no private school, secular or religious, receives funding. In doing so, it removed the discrimination claim. The plaintiffs might have preferred it to rule that everyone gets money, not no one. But the constitution does not require the plaintiff’s preference on this point. I would decide the case on those grounds, narrowly, leaving it for another case to reach the big issues.

    3. Finally, I would note that Justice Kagan’s remarks at the end of Mr. Wall’s argument for the United States closely resemble my own. Montana’s position, while not universal, mirrors positions taken by many of the Founding Fathers and was regarded as legitimate for most of the history of the republic. Although she did not say it, I would go further: for a narrow court majority to now proclaim it nothing but animosity, as Calhoun did with slavery, would tend to suggest partisanship on the court’s part, not neutral constitutional adjudication.

  20. Yet another in a series of Somin’s “dark soul” based arguments.

    We know Trump has a “dark soul”. Thus, when Trump bars immigration from some (far from all) Muslim countries, it is obvious that he is motivated by anti-Muslim animus.

    The bigotry of the Blaine Amendment does not rest on any dark soul analysis.

  21. Whether one believes judges should read tea leaves to discern motivations for a law or not, if a number of the justices have relied on such a rational in previous decisions it would be foolish not to at least make the case as part of a broader argument. A lawyer would not get very far if they only cited cases he/she agreed with.

  22. The comparison between the travel ban and the state constitution is inapt. For one, no one claims that the Montana law is being used to discriminate against Catholics now. It’s textually neutral, therefore, in the absence of current discriminatory motive and practice, you can only get to any anti-Catholic bias in the law if we assume that originalism is the appropriate framework. But that is a highly contested position. What’s more, this provision of the Montana Constitution was re-enacted in the the 1970s. So even if we agree that originalism is the appropriate framework, it’s the original understanding in the Vietnam era, not the immediate post-Civil War era.

    Compare that to the travel ban, where the stated goal of the current form of the executive order is to discriminate on the basis of religion. No re-enactment a century later, no (reasonable) dispute about intent/understanding, no (reasonable) dispute about practical effect.

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