School Choice

Supreme Court Strikes Down Montana Blaine Amendment Barring State Aid to Religious Schools

The decision is an important victory against government discrimination on the basis of religion.

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

 

This morning, the Supreme Court issued its decision in Espinoza v. Montana Department of Revenue, striking down Montana's state constitutional Blaine Amendment, which forbids state aid to "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." The decision overrules a Montana Supreme Court decision striking down a state school choice program that had provided tax credits on an equal basis to students attending both religious and secular private schools. Today's ruling is an important victory for religious freedom, specifically the principle that government policy should not discriminate between private organizations and individuals on the basis of religion.

The decision is a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting. To my mind, that is unfortunate. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive.

While there are a number of complexities in the case, Chief Justice John Roberts' majority opinion effectively captures the main issue:

The Free Exercise Clause, which applies to the States un­der the Fourteenth Amendment, "protects religious observ­ers against unequal treatment" and against "laws that im­pose special disabilities on the basis of religious status." Trinity Lutheran….Those "basic principle[s]" have long guided this Court….

Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the "unremarkable" conclusion that disqualifying otherwise eligible recipients from a public benefit "solely because of their religious character" imposes "a penalty on the free exercise of religion that triggers the most exacting scrutiny…."

Montana's no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school "controlled in whole or in part by any church, sect, or denomination." Mont. Const., Art. X, §6(1). The provision's title—"Aid pro­hibited to sectarian schools"—confirms that the provision singles out schools based on their religious character….

When otherwise eligible recipients are disqualified from a public benefit "solely because of their religious character," we must apply strict scrutiny. Trinity Lutheran

The Blaine Amendment doesn't exclude only those religious schools which fail to meet neutral educational standards, or have some other kind of flaw. All religious schools are categorically barred from receiving state assistance for which similar secular institutions are eligible. That is clearly discrimination on the basis of religion, if anything is. The opinion goes on to explain that the Blaine Amendment cannot possibly survive strict scrutiny, as there is no narrowly tailored state interest that can justify a categorical ban on aid to religious schools, while simultaneously permitting aid to otherwise similar secular ones.

The dissenting justices argue that state governments must be free to discriminate against religious institutions in at least some instances, in order to avoid Establishment Clause programs. Here, for example, is a relevant passage from Justice Sotomayor's dissent:

Contra the Court's current approach, our free exercise precedents had long granted the government "some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws….."

Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids "historic and substantial" antiestablishment concerns. Locke [v. Davey], 540 U. S., at 725…. Indeed, one of the concurrences lauds petitioners' spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like "teach[ing] religion" so that petitioners may "outwardly and publicly" live out their religious tenets. Ante, at 3 (opinion of GORSUCH, J.). But those deeply religious goals confirm why Montana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter, 544 U. S., at 714, and the free exercise rights of taxpayers, "denying them the chance to decide for themselves whether and how to fund religion…"

This is a longstanding argument offered by defenders of discriminatory exclusion of religious institutions from government education programs. But it is dangerously flawed. If there is a violation of the Establishment Clause or the Free Exercise Clause any time the state provides assistance that helps religious people engage in "spiritual pursuits," then the same argument can be used to justify excluding religious institutions from virtually any government service or tax credit. If the government provides police and fire department protection to religious institutions on the same basis as secular ones, that facilitates worshippers' "spiritual pursuits" and denies taxpayers " the chance to decide for themselves whether and how to fund religion." The same point applies if the government gives tax exemptions to religious charities on the same basis as secular ones (as both the federal and state governments routinely do).

You don't have to adopt many conservatives' unduly narrow interpretation of the Establishment Clause (which they interpret as barring only the establishment of an official church or as directly coercing people to take part in its services) to recognize that nondiscrimination is not establishment. Even if government endorsement of religion also qualifies as an "establishment," merely treating religious institutions the same as secular ones does not count as such an endorsement. For example, no one claims that the government endorses religion when it gives legal effect to religious wedding ceremonies on the same basis as purely secular ones.

There is an in-depth debate between the majority and the dissenters over whether Espinoza can be distinguished from the Court's 2004 decision in Locke v. Davey, which upheld a state law denying scholarships to students pursuing degrees in "devotional theology" for the purpose of studying for the ministry. I think Roberts has the better of this debate, but I will not try to cover it in detail here. I would note, however, that there is an obvious difference between refusing to fund studies for a degree devoted to a specific subject matter, and categorically denying funding to all students attending religious institutions, even if they meet the curricular standards required for secular schools to be eligible for assistance.

Funding of education necessarily requires some criteria for determining which subjects have to be taught in order to qualify. Otherwise, the state would end up subsidizing attendance at institutions that only teach material that is completely irrelevant to the state's educational objectives—for example a school whose curriculum consists solely of training to repair obsolete typewriters. Imposing neutral curricular requirements in a scholarship program is different from categorically barring participation by religious schools, even if they cover the subjects required by the state just as well as secular ones do.

Two of the dissenters—and many of Montana's supporters in the legal academy—argue that there is no actual discrimination on the basis of religion here, because the net effect of the Montana Supreme Court's ruling enforcing the Blaine Amendment was to invalidate the entire school choice program, thereby denying aid to both religious and secular private schools. For example, Justice Ruth Bader Ginsburg argues that Montana simply "put all private school parents in the same boat."Roberts has a good response to that point:

The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other "mechanism" to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program….

The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court's error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation…. Because the elimination of the program flowed directly from the Montana Supreme Court's failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision..

Imagine that a state legislature enacted a school choice program similar to Montana's, and that the state supreme court then struck it down because it violated a provision in the state constitution barring state aid to racially integrated schools. The state could then argue there was no racial discrimination here, because the end result of the ruling was that students attending both segregated and integrated private schools are denied tax credits. Few would deny that the state government would be acting unconstitutionally in such a case, because the denial of tax credits was the result of a provision in state law that explicitly discriminates on the basis of race. The Montana Supreme Court ruling enforcing the Blaine Amendment in Espinoza qualifies as discrimination on the basis of religion, for exactly the same reason.

Montana remains free to deny state assistance to all private schools alike. But it cannot do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way.

Finally, it is worth mentioning the fact that Montana's original Blaine Amendment was enacted in 1889, as part of a nationwide Blaine Amendment movement motivated by bigotry against Catholic immigrants. Justice Alito discusses the relevant history in some detail in his concurring opinion. Normally, this kind of bigoted motivation would be enough to strike down a government policy, even if it was ostensibly neutral on its face. Here, the issue of motivation is not crucial, because the Blaine Amendment does in fact discriminate on the basis of religion on its face. It explicitly discriminates against religious schools, relative to secular ones.

However, I also agree with the argument that the bigoted motivation behind the law provides an independent basis for striking down Blaine Amendments. If the enactment of a seemingly neutral law or policy is motivated by unconstitutional discrimination on the basis of religion (or some other forbidden criterion), it should be invalidated unless the government provides strong evidence that it would have enacted the same law or policy even in the absence of unconstitutional motives. I have defended this principle in other contexts, such as the Trump travel ban case, and it applies here too. It is unfortunate that both liberal and conservative justices seem to apply it inconsistently, depending on whose ox is being gored in the particular case at hand.

In the case of Montana, this is is admittedly complicated by the fact that the Blaine Amendment was reenacted in 1972, as part of the process of drafting a new state constitution. The 1972 framers arguably did not have the same bigoted motives as those who enacted the 1889 version.

This raises the issue of whether the reenactment "cleanses" the taint created by the bigotry of the 1880s. I cannot fully do justice to this complicated issue in a blog post that is already too long. But I will say that such "cleansing" can only occur if the reasons for reenactment are not themselves tainted by unconstitutional motives. In this case, such a standard will be difficult to meet, because the Amendment discriminates on the basis of religion on its face. Thus, the motives for reenactment necessarily involve some form of discriminatory hostility towards religious institutions, even if no longer focused primarily on Catholics. In his opinion, Alito makes some additional points on why the 1972 reenactment remained tainted by unconstitutional motives. He also (correctly) points out that the reenactment issue does not arise in the case of the many states that still have Blaine Amendments dating back to the original 19th century Blaine movement, and not reenacted since.

Ultimately, the issue of motive isn't crucial in this case. It is enough that the Montana provision discriminates against religious institutions on its face.

While I am happy about the result of this decision, I am troubled, though not surprised, by the 5-4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. That ideological division is likely to be replicated in commentators' reactions to the ruling, as well. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination.

UPDATE: I should note that Kendra Espinoza, the plaintiff in this case, was represented by the Institute for Justice, with which I have a longstanding association, including writing a number of pro bono amicus briefs on their behalf in various property rights cases, and working there as a summer law clerk many years ago when I was a law student. However, I do not have any involvement in the present case. Congratulations to IJ on this important victory!

NEXT: When One Federal Agency Sues Another in Federal Court

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  1. Is Roberts back in conservative good graces again, or is he like a cheating ex-girlfriend that is good only for a Saturday night now and again?

    1. It is his one signal a year to prove he isnt a slave to WaPo and NYT. This was an easy decision. I have to go read the dissent to see how they justify their views. What kind of sophistry will fill that.

      1. I’ll just make the (obvious, to me) point that only idiots who are totally unqualified to act as appellate judges/justices take an issue that had a 5-4 split and call it “an easy decision.” No, no it was not. The fact that 4 incredibly qualified and super-smart people thought opposite should be your first clue.

        (If a liberal, yesterday, had posted about how “easy” yesterday’s decision affirming a woman’s right to control her own body was; that would be idiotic as well. And that’s because even thought that decision was about a case almost identical to Hellerstedt–a few years ago–it’s not “easy” to assume that even super-smart justices will agree with the notions of precedent. For that liberal, the fact that 4 justices would have ignored or overruled the 2016 case should have been her first clue.)

        1. The four liberals are fairly smart, and Kagan very muchly. But their dissent is not evidence of the decision’s difficulty or easiness. They are playing baseball, the conservatives are playing football. Different sports. For the football players, it’s not that hard a decision and they won 5-0.

          Kagan’s real smartness comes into play when she sees a way that football rules may get her a vote from one of the football players, as she neatly did in Bostock, confusing young Gorsuch into such a muddle.

          But she only plays football as a tactic. At heart she’s a baseball player.

          1. Pretty much, except that living constitutionalism is more Calvinball than baseball. But as a “football” player, I’d think that, wouldn’t I?

            1. Yeah.

              But on reflection I wasn’t being quite fair. I think Alito is a baseball player – though strictly antimatter baseball. For baseball players the answer is never difficult, it’s writing a plausible opinion to justify it that’s sometimes hard. So the preferred result nails on a 4-1 result from the baseball players.

              The four football players then provide the decision. If they find it difficult and split, then the libs win.

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        2. “The fact that 4 incredibly qualified and super-smart people thought opposite should be your first clue.”

          Because 4 super-smart people would never take an easy decision and make it complicated?

          “If a liberal, yesterday, had posted about how “easy” yesterday’s decision affirming a woman’s right to control her own body was; that would be idiotic as well.”

          Why pick on grb like that?

          1. Because I make observations objectively, even if people I like and admire get things wrong sometimes. Fair and balanced…it’s something others might want to try occasionally. (I think that a large number who post here do indeed try and be objective–I am talking about the extremes on both sides who never try to do this.)

            Look, if you believe in Stare Decisis, then yesterday’s case was about as easy as it gets . . . it’s rare to find a case that is so squarely on point with prior precedent at the Sup. Ct. But if you don’t care about precedent, then it’s easy to see how a justice could overrule a prior case.

            And that’s fine with me. If a case *was* wrongly decided in the past, then it should be overturned. There is great value in precedent, as it gives our entire country stability and confidence in the legal system. But these exceptions proof/prove the rule. Thomas does not agree that the Constitution requires giving a woman this sort of control over her own body. Given this, with that premise; he will always vote to ignore precedent on this issue, and *he should* do so. THAT is why it was not an “easy” case, and why people who use that term so easily and loosely should be corrected. This is no longer a blog populated by lawyers, law students, and the like. Most people here are ignorant of the law (which is reasonable, given their lack of legal education), and therefore don’t understand “precedent” and what it does and does not mean.

            1. “The Constitution requires giving a woman this sort of control over her own body.”

              That’s always an odd argument. Tough to rationalize with current positions on either masks or vaccines.

              “You have the right to do what you want with your own body. Unless it involves rejecting a vaccine. Or having to wear a mask. In which case, you don’t have those rights”

              1. Even more horror — stop signs!

              2. “That’s always an odd argument. Tough to rationalize with current positions on either masks or vaccines.”

                Recreational Chemistry.

              3. The masks and vaccine’s involve other’s health, classic quarantine powers.

                1. One can argue abortion affects others health as well…

                  1. Yes, but that’s much less obvious and accepted, hence the flaw in the analogy.

                    1. Depends who’s health you’re considering…

                    2. Abortion affecting the health of the unborn is “less obvious and accepted”
                      Okay.

        3. I’m sorry, but it seems like an easy decision. You don’t get to punch religion in the balls, squeaking “but it’s a law of general applicability!” then say, sorry, religion, when a law of general applicablity heaves some money at “all schools”.

      2. Sotomayor argument in Section I of her dissent is unimpeachable. I will have to read the majority to see how they avoid it.

    2. He could’ve ducked the question with mootness and not shocked anyone.

  2. I would like a reasoned comment from those who say that this will lead to more fracturing of the culture, or that conservatives will regret this, when the Madrassas and such get funded by taxpayer dollars. It seems to “slipper slope” at this point.

    1. It will lead to more fracturing of the culture, and a good thing too.

      The Great God Progress is the Established Religion in the government school system and since Zhe is a false god, I say let the heretics of all kinds have their temples too.

      1. I just made that very same point to Sidney r finkel in a comment below. Funny that (no sarcasm or irony meant)!

      2. Yes, fracturing. As in: tax money will have to be divided over at least 15 different kinds of protestant churches, and occasionally the catholics will get a taste too. Such diversity!

        1. I would imagine the funding is likely to go roughly $x per child, rather than $y per church. I confess I don’t know the numbers on Protestants, Catholics, Muslims, Jews etc in the US, but my guess is that if schools run by Protestants are split between fifteen different sects, then their temples are going to be quite a bit smaller than the Catholic one. Economies of scale and all that.

          But fear not, I’m sure The Great God Progress will still have way the biggest temple.

        2. Most of the parochial schools are Catholic.

      3. Please point out on the doll where progress touched you.

    2. Never going to happen. No non-Christian organisation in the US will ever get money under this precedent.

      1. Non-Christian organizations such as … public schools?

        1. How is funding public schools something that is done “under this precedent”?

      2. I (respectfully) disagree. I see no reason why Orthodox Jewish and Muslim schools would not qualify just as easily, or why such schools would not be motivated to apply for such funds. Why do you believe that this will never happen?

        1. Because the only parts of the US where there are enough Orthodox Jews or Muslims to have a chance of effectively lobbying the government for money are the same parts of the US where they wouldn’t give money to religious organisations anyway. (Or, as they’re more commonly – and more sloppily – known: blue states.)

          1. ?? It’s not like they can just give money to Christian schools. If Christians lobby for funding, non-Christians get it too.

            1. If you believe that, I have a bridge you might like to buy.

            2. It has to do with children attending a school. They are giving money to children to spend on tuition.

            3. First of all, some states do have special tax exemptions only for religious organizations.

              Second, practically speaking Christians lobby for funding for Christian schools, and the money goes predominantly to Christian schools. Approximately 70% of Texas’s private schools are Christian schools. That’s what you’d expect in a state that is overwhelmingly Christian.

              Third, it’s a shell game. If some uppity minority gets in mind to take advantage of a state-wide Christian handout program, the instant the minority figures out how to game the system, the legislature will remove the handout program. (What do you think all that anti-Catholic bigotry was about?) So the majority religion lobbyists get their funding for decades, and the minority religions get it for minutes. What could be more equal that that? Oh, right, a policy where neither religious majorities nor religious minorities get money.

    3. It will be interesting to see how state governments address the budget deficits created by these new spending obligations. Hopefully they respond by taxing churches.

      1. The state legislatures don’t have to finance any kind of vouchers or prvate schools if they don’t want to. This particular program was voted for by the Montana legislature, and as Roberts pointed out, it’s never voted to scrap it.

        I believe some State constitutions require the State to provide public education, but there’s no reason to believe that financing private education costs the State any more than it saves by not having to educate privately educated children in government schools.

        1. Query whether the Montana legislature can NOW end the program in its entirety, accomplishing legislatively what the Montana supremes tried and failed to do by judicial fiat. And would it matter if the Montana legislature explicitly stated that the discontinuance was to avoid having to fund religious schools?

        2. “…but there’s no reason to believe that financing private education costs the State any more than it saves…”

          To answer that, you’d have to know how much the state is subsidizing the private schools, and how they’re using it.

          1. To answer that, you’d have to know how much the state is subsidizing the private schools,

            Any examples you can think of, of States providing higher per capita grants / vouchers to private schools than they spend on government schools ?

            and how they’re using it

            The educational superiority of goverment schools over private ones is not a ditch you want to die in.

            1. “The educational superiority of goverment schools over private ones is not a ditch you want to die in.”

              I’m happy to look at any evidence you have confirming your priors. I’ve attended private and public schools. I think there are things public schools do better than private (religious) schools. Before starting that conversation, I’d need to understand what “superior” means to you.

              On a per dollar basis it isn’t obvious to me that every private school, or private schools generally, are superior to public schools, especially when you factor in pupils. But for the government to evaluate the superiority of private schools, it’s going to require whatever perverse incentives make you think a government-run program is inferior to a privately run program.

              I’m biased in favor of private solutions, but the scope of universal, mandatory public education is beyond the market.

              1. I’m biased in favor of private solutions, but the scope of universal, mandatory public education is beyond the market.

                Maybe you should be examining your priors too ? It’s hard to think of a field of human endeavor that is more suited to the market than education. There are no natural barriers to competition. Economies of scale are fairly modest, once you get to school size. Switching suppliers is easy. There’s virtually infinite scope for competitive market based support services, learning materials etc. There’s natural competition from DIY.

                Private buyers have vastly more personal interest in the product than does the government bureaucracy. As for differentiation of service, there’s unlimited scope. Welfare issues can be dealt with easily with school stamps.

                It’s really hard to imagine any field in which market provision has so many advantages over pubic provision.

                Compared to, say, health where there are huge differences in demand from person to person, and where a simple equal-value health stamp fits the welfare issues very badly, education is an absolute slam dunk for market provision over government provision.

                1. “It’s hard to think of a field of human endeavor that is more suited to the market than education.”

                  There can be no doubt that private companies are better at “education” than public ones. But there is more to public education than who is better at teaching one pupil to pass a test. There is no “market” for forcing every human being that exists today to be literate. And since what it means to “educate” is subjective, any social agreement is going to be subject to collectively agreed upon objectives. There can be no private market for a collective good; we’re always going to be the ones telling the market what we want.

                  “Private buyers have vastly more personal interest in the product…”

                  What is the “product” in your view?

                  1. I think you are confusing public goods and positive externalities. All sorts of commercially provided goods and services have positive externalities, but that is not a good reason for providing them collectively through the political process.

                    Moreover even if you laboriously construct, for framing purposes, an alleged “collective good”, replacing say food, in all its glorious diversity, with “a nation well fed” that does not mean the government has to provide that imaginary collective good. If it fears the market will fail to deliver the imaginary “collective good”, it can simply subsidise those bits of the nation that fall through any cracks in market provision – eg with food stamps.

                    Only if the government wishes to define “well fed” very closely indeed that it needs to assume direct control of production and delivery.

                    Since you ask, the “product” is the education of each individual child, as its parents think appropriate. Some will value a hard grinding insertion of algebra, and some will value discussion of butterflies. I certainly have my views on the sort of thing that is likely to work best for the benefit of various types of child, but it would be highly presumptuous for me – or the majority of the public – to insist on our preferred version, over the head of the parents.

                    Since parents are, in this matter, essentially trustees for their children’s interests, I entirely accept that that role may in very egregious cases be taken over by agents of the State. But certainly not where parents remain within furthest flung reaches of the grege. (btw I have a scheme for that sort of regulation, which I will not go into now.)

                    No “social agreement” beyond the policing of egregious cases is necessary. Indeed any such “social agreement” – ie compulsory conformiity – is very dangerous, not merely on account of the risk of indoctrination but because of the lost benefits of diversity.

                    In most cases, the education the parents choose to buy will benefit their child, and through positive externalities, also happen to benefit innocent bystanders.

                    1. All the work can be done in the joints between non-egregious cases and egregious cases. Is not teaching your child literacy an egregious case? What about English? Is convincing your children that vaccines are filled with ghosts that will haunt you with their animating spirits?

                      I’m not carrying water for public schooling but there are basic assumptions about the program–educating the entire population on certain collectively agreed matters, social cohesion, equal services for all, etc.–that don’t fit nicely into privatization. Subsidization is easy when it’s food. Here are food stamps, go pick what you want to eat. It’s easy to measure the efficacy of the system. How many food stamps did we hand out? Where were they used? On what?

                      Education isn’t like that. If state money is used to subsidize a Madrassa with ties to the MB or something, there are people in the public who think that’s an “egregious” case. And I think it would be egregious for state money to fund teaching my kid that Jesus talked to dinosaurs. If people want to teach their kids that at home, fine, I don’t have an issue with that. But I’m not fucking subsidizing it.

                      To simplify, “the education of each individual child, as its parents think appropriate” is not a collective good. Maybe we shouldn’t have public education at all. But the concept of public education is that it isn’t up to the parents to determine what is or is not appropriate.

                      We are really just arguing over matters of degree. If parents are “trustees” and we grade them on your curve (nothing egregious!) we still assume the state knows something the parents do not, and that the state can step in to correct that. And that’s not because you’re some statist; it’s because egregious conduct implicates the rights of another human being (the kid).

                      “In most cases, the education the parents choose to buy will benefit their child, and through positive externalities, also happen to benefit innocent bystanders.”

                      This is an empirical claim. Do you have any evidence to support it?

                    2. If state money is used to subsidize a Madrassa with ties to the MB or something there are people in the public who think that’s an “egregious” case.

                      Sure, and then there’s you and your dinosaurs, and some folk won’t want their children taught commie c**p and so on. We all have lots of things we don’t like. But you’re “not fucking subsidizing it” is a world of difference from “the program–educating the entire population” – one is a small set of “no you can’t do thats” – like the criminal law, and the second is “you will do that” – like all those places with uniforms.

                      To simplify, “the education of each individual child, as its parents think appropriate” is not a collective good. Maybe we shouldn’t have public education at all.

                      Correctamundo, at least in your sense that “the concept of public education is that it isn’t up to the parents to determine what is or is not appropriate.” The education of children is a private matter for parents.

                      If for welfare reasons the State wishes to subsidise this, fine. It’s also fine if the government wants to set up its own schools and teach its own curriculum, so long as it treats parents who want to partake of this offering and parents who prefer to go their own way, equally – ie no difference in funding, and no special benefits for the government schools.

                      We are really just arguing over matters of degree. If parents are “trustees”…

                      No it’s not a matter of degree, it’s a fundamental difference of concept. Parents are trustees for their own children, they are not trustees for the State’s interests. The displacement of parents from their trustee role is – in egregious circumstances – justifiable if the parents are manifestly harming their children. It’s not a collective interest, it’s the individual interest of the child.

                      We do not attempt to justify the State stepping in to punish or usurp the parents, in cases of physical or psychological mistreatment, or lack of care, on the basis of the community interest, but on the basis of the child’s interest. And only then in cases where the parents mistreatment is manifest. There’s no reason to take a different view when the parents’ education of their children is at issue – unless the real goal is to assert the State’s interest.

                    3. This is an empirical claim. Do you have any evidence to support it?

                      It’s more of a prediction, but whatever. For some evidence we need to look into the past.

                      Before there was government education, many – but not all – children were nevertheless educated. Whether at home, at parochial schools, apprenticeships etc. Since the educated did well for themselves, on the whole, there’s no reason to believe that their education harmed them; and since great economic and intellectual advances were made, there’s little reason to believe that their education harmed the community.

                      We don’t really get to really clear examples of community damage from education until we reach the ghastly consequences of student radicalisation in government universities in Tsarist Russia.

                    4. On the measurement of egregiosity.

                      Instead of having some panjandrum, elected, or appointed by some elected board or committee, or calling himself “Judge”, deciding whether say – the parent’s treatment of their child, let us say as to education but it could be anything else, is “egregious” enough to warrant the State stepping in and usurping the parental role, we have …..

                      ….a special, elected, board, inthe nature of a jury. Let us say we have eight of them and we elect them in a simple multicandidate election where the top eight vote getters get elected. The government official does the legwork and present his or her findings for their approval.

                      But in order for them to allow the official to usurp the parents’ role they have to be unanimous. In other words, if someone able to get about a tenth of the votes doesn’t think the parents’ treatment is egregious, it’s not egregious.

                      So instead of someone deciding “whoa that sort of thing is egregious” , you need to get to something like 90% of the public saying “whoa that sort of thing is egregious.”

                      The same sort of scheme is applicable to all sorts of licensing type arrangements.

  3. Does anyone know if this will practically make differences, specifically to school funding?
    And was that mootness point from Roberts a new ruling in mootness doctrine?
    Bonus points to Alito for throwing in the cartoon.

    1. The Montana program was a tax credit — and hence only affected the state’s gross tax revenues.

    2. That’s a poor quality print of a classic political cartoon — you can’t tell that the flag on the schoolhouse is upside down.

      The issue was would the Catholics shut down the public school and force the Protestant children to attend the parochial one. There was a real fear, perhaps unfounded, that this was the Bishop’s intent.

      1. So it’s useful to control what the next generation learns so as to benefit your memeplex?

  4. ” You don’t have to adopt many conservatives’ unduly narrow interpretation of the Establishment Clause”

    That’s actually a perfectly duly narrow interpretation, in as much as it’s clearly what the clause meant when written.

    1. Indeed, Thomas’s concurrence walking us through what the Establishment Clause actually means, and what a dog’s breakfast the current orthodoxy is, is a home run.

      Emperors, shyster tailors and small boys spring to mind.

      1. Liberals would like to read it as “The government cannot ever have any type of revenue go to any religious organization”.

        They’d also like to couple it with “The government ultimately controls all revenue in the country, one way or another”.

        Effectively banning religion…

        1. Delusional clingers are among my favorite culture war casualties.

          Right up there with people who demand special privilege, public tribute, and public funds for superstition.

          1. Superstition like how black people are supposedly shot more and pulled over solely because they’re black and not because they fit more crimes?

            Physician, heal thyself.

        2. Armchair, what kind of errant, slippery-slope gobbledy-gook is that? If “liberals” interpret the establishment clause as prohibiting GOVERNMENT funds to religious organizations, how is that not perfectly reasonable? How does that lead into “any type of revenue?” Justice Thomas defines Establishment in a ridiculously narrow way, so he can reach his desired outcome. As do you and Mr. Moore.

          1. I have no dog in this fight. I am not religious, though as with skateboarding, sex with garden furniture and playing the fiddle, I am prejudiced in favor of letting voluntary participants get on with their daily occasions without interference.

            Thomas’s view of the meaning of “establishment of religion” rests on what “establishment” meant at the founding. It meant like the Church of England was established. Not ad hoc subsidies, payments and advantages.

            The Church of England is still the Established Church in England, but that doesn’t prevent the UK government handing out bucketfuls of money to Catholic, Methodist, Muslim, Jewish etc schools and institutions. Only a loon would claim that all those other Christian, Muslim and Jewish institutions are also “established.” Establishment and ad hoc goodies are different ideas.

            It is also teling that the Establishment Clause appears in the Constitution in the same sentence as the Free Exercise Clause, separated by a mere comma. There is no doubt whatsoever that the Free Exercise Clause “makes an establishment of religion” in the sense that you imagine “establishment” has. It provides a clear an unequivocal advantage to religious activities over secular activities.

            Consequently if the founders really meant no establishment of religion in the sense of no advantage to religion, it is passing strange that they put both the two clauses in there at all, never mind slap bang next to another. This hints – strongly – that “establishment” does not mean what you think it means.

            Instead, perhaps you should consider whether you have a desire that the constituion should prevent goodies and benefits being handed out to religious institutions, and that is coloring your interpretation.

  5. A school that disdains science (teaching that life began when Bugs Bunny, riding a unicorn, dropped a vial of unobtanium onto the Delta House basement floor), mocks mathematics (teaching that one plus one equals seven, or whichever answer the student prefers), or flouts history (teaching that World War is a myth, and that America was discovered by Keith Richards) should not receive public funding or mainstream accreditation.

    A school that disdains science and flouts history to flatter religion (teaching that Earth is a few thousand years old because of Biblical interpretation, or that Earth’s creation is described accurately in Genesis) should not receive public funding or mainstream accreditation.

    Schools that teach nonsense should not expect or receive public funding or accreditation. Nonsense is not improved by superstition or by belief in Bugs Bunny or Senator John Blutarsky.

    1. So any school incorporating the anti-history of the NYT’s 1619 project should be de-funded?

      Can’t believe it, but I’m actually in agreement with Good Reverend!

      1. He’s so stupid he doesn’t realize when he’s undermining his own argument.

    2. Careful. Next thing you know you will be demanding the defunding of government schools. You know the ones with illiterate and innumerate “graduates.”

      P. S. The state of Montana is more than capable of accrediting schools.

      1. I was referring to the accreditation that causes a degree to be recognized as valid — as a qualification for graduate school, for example, or to be recognized as legitimate by an employer.

    3. “A school that disdains science (teaching that life began when Bugs Bunny, riding a unicorn, dropped a vial of unobtanium onto the Delta House basement floor), mocks mathematics (teaching that one plus one equals seven, or whichever answer the student prefers), ”

      Perhaps, but that’s not the issue here. The issue here is whether or not schools that teaches that one plus one is seven (or that one plus one is two) can be granted or denied funding based on whether or not they have a religious affiliation. The issue of whether or not governments can engage in viewpoint-based discrimination in funding (say, requiring schools to teach that Trump had the biggest inauguration crown in history) is a different subject.

      1. I have long understood that religious schools teach creationism, reject evolution, endorse ‘young Earth’ claims, claim the Bible is non-fiction, and the like.

        The teaching of nonsense is not improved by the Bible or any other religious claim.

        Do you contend that religious schools do not teach nonsense (instead of science, or history), or that they teach nonsense but such instruction should be funded and accredited?

        If a religious school sticks to science, history, and non-fiction, that is a different circumstance than one involving the teaching of fairy tales.

        1. I consider global cooling, aka global warming, aka climate change to be fiction, and social justice to be religious nonsense.

          1. That’s because you have a brain and regularly use it.

    4. > A school that disdains science and flouts history to flatter religion (teaching that Earth is a few thousand years old because of Biblical interpretation, or that Earth’s creation is described accurately in Genesis) should not receive public funding or mainstream accreditation.

      Note that Catholic schools do neither of those.

      1. Genesis and modern physics tell a remarkably similar story.

  6. Congrtulations.

    You so called conseratives/libertarians have now achieved the pinnacle of hypocrisy. A sovereign state through its court system relying on its state constitution acted to deny requiring its taxpayers to support religion. Freedom from supporting a religion is one of the basic freedoms that conservatives and libertarians cherish. No ones relgious freedom was impaired by the failure of Montana to pay to support religious schools.

    Justice Thomas fervently asked the Court to respect Louisiana
    citizens and laws to allow Louisiana to effectively ban abortions because he agreed with that policy. One day later he just as fervently asked the Court to totally disrespect the wishes of Montana citizens because he did not agree with the policy. Consistency be damned.

    Yet, because from a policy point of view the so called conservatives want government funding of religion and religious schools you have abandoned all principles in return for a policy result that you wished for.

    So yes, you have won the legal battle but forfeited the moral and integrity one. I hope everyone remembers what you have done when a future court upholds futher direct government funding of religion, particularly when it is a religion whose precepts are one with which you violently disagree.

    1. “….hope everyone remembers what you have done when a future court upholds futher direct government funding of religion, particularly when it is a religion whose precepts are one with which you violently disagree.”

      What you don’t seem to understand, and I can appreciate that telling you as a fish that you’re in water, is that we already have that with the public school system.

      1. Right, at this point the public schools are basically the Church of the State Omnipotent.

        1. Kinda telling Brett needs to talk this silly drivel to make his argument hold up….

          1. A government is about as likely to run a school system otherwise, as a church is likely to teach atheism in parochial schools.

            1. Why? No differences between governments and churches (or football clubs or businesses, for that matter)?

              1. Of course there’s differences between governments and churches; My church asks me for money, my government tells me how much I will give it, or else. That’s a big difference right there, but it’s not favorable to the government.

                Historically, government run churches were set up for purposes of indoctrination. Like food, education is a need, but making sure people have that need satisfied doesn’t require that the government be the one that supplies it… Unless the government wants to make sure that a favorable view of itself is taught.

                1. Requiring the public to coalesce and decide on what gets taught in schools is important. The decisions are public. Prohibiting those decisions from getting made by religious sects is a meta rule that is intended to protect liberty interests, too. Especially since the state forces people to attend school.

                  1. Requiring the public to coalesce and decide on what gets taught in schools is important.

                    No it isn’t. Rather, it’s important that what gets taught in schools is not determined by any process of the public coalescing – ie politics – but, instead, by the people who run them, and indirectly by the success and failure of those schools to attract parents who approve or disapprove of what they’re teaching, and how.

                    The decisions are public.

                    Well if made through the political process, sure. But there’s no reason why they should be.

                    Prohibiting those decisions from getting made by religious sects is a meta rule that is intended to protect liberty interests, too.

                    This is backwards. The liberty of parents not to have to send their children to schools run by people with beliefs they disapprove of is :

                    (a) not threatened if parents are able to choose what schools to send their children to and
                    (b) isthreatened by requiring parents to send their children to schools whose curriculum is determined by the public “coalescing” through the political process

                    Especially since the state forces people to attend school.

                    Unless they are homeschooled. But even with a compulsion to attend school, the degree of tyrannical authority imposed is far less if you get to choose the sort of school rather than have that be determined by politics.

                    1. “No it isn’t.”

                      And then you immediately describe a politically responsive system.

                      “This is backwards.”

                      If the comparison is between (1) mandatory attendance and (2) none, you’re right. But that’s not the choice. We have made a social contract that mandatory attendance is a good thing. Once the decision is made, meta rules about how it is administered preserve liberty interests.

                    2. And then you immediately describe a politically responsive system.

                      No, I immediately describe a market system. When you decide to stop buying product A because you prefer product B, that’s the market, not politics.

                      If the comparison is between (1) mandatory attendance and (2) none, you’re right. But that’s not the choice.We have made a social contract that mandatory attendance is a good thing.

                      No, there’s two bites at liberty here. First whether parents are to be required to present their children for mandatory attendance in school. Fortunately we still have the option of homeschooling.

                      Second, to the extent that parents are obliged to ensure their children are educated somehow, the second question is whether they are to have their liberty respected as to who is to do the schooling and how.

                      And “social contract” is just newspeak for law. There’s no agreement, no contract. It’s just force.

                      Once the decision is made, meta rules about how it is administered preserve liberty interests.

                      No, that’s “meta” liberty. You do not preserve liberty by restricting it.

    2. “sovereign state”

      What’s that now???

      I agree that states ought to be sovereign and Montana ought to be able to decide this for themselves. But what that means is that the 1st amendment should not be incorporated against the States, and it should only apply to the federal government, as it did when it was first written. What it means is that the federal judiciary would have no jurisdiction here.

      Whether the original meaning of the 14th amendment was to incorporate the 1st amendment (and others) against the States is a question that can be reasonably debated, I think. I agree that conservatives should reconsider this issue as it relates to conservative principles, but the fact is that very few do.

      Even if the 1st amendment is incorporated against the States by the 14th amendment, it does not follow that the 14th amendment created a constitutional right to abortion that can’t be “unduly burdened.” So your overall argument is extremely weak.

      1. I did not say that the states were fee of the 1st amendment. Quit putting words in my mouth, those words may be infected with Covid-19.

        Freedom of religion is freedom to worship as you like, not freedom to compel me to support your child’s religious education.

        1. People should not be compelled to support your child’s education at the government schools that teach the religion of worshiping the state, either.

          1. The lamentations of their women . . .

            It must suck to be a vanquished clinger in modern America.

            And it should.

            1. Funny how you think you’re “winning” when Trump is still your President.

        2. You are being compelled to pay for the child to learn how to read, write, and do math. The religious instruction is being provided free of charge.

    3. “A sovereign state through its court system relying on its state constitution acted to deny requiring its taxpayers to support religion.”

      They don’t have to support religion, they just have to support religious institutions to the same extent that they support non-religious institutions. What’s wrong with that?

      1. Religion flourishes in greater purity without than with the aid of government.”
        –President James Madison, Letter to Edward Livingston, July 10, 1822.

        “When religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one.”
        –Benjamin Franklin, cited in Anson Phelps Stokes, Church and State in the United States (New York: Harper, 1950), vol. I, 298.

        1. Religion flourishes in greater purity without than with the aid of government.

          Ditto everything else.

        2. “Religion flourishes in greater purity without than with the aid of government.”

          Perhaps, but the parents are paying taxes to send their kids to school no matter where they choose to send them.

      2. “What’s wrong with that?”

        What if my objection is supporting religious institutions at all?

        There’s an interesting asymmetry to this as well. If I’m religious and object to the state’s imposition on me on religious grounds, I may have a constitutional case. But if I object on non-religious grounds, that objection is not constitutionally privileged. That’s the tension everyone was talking about in the case.

        1. Why is this a tension ? The constitution protects the free exercise of religion, but doesn’t similarly protect the free exercise of your nasty heathen practices. It may be unfair but there’s no tension.

          I presume you’re not suggesting that the unfairness of it should cause the courts to twist themselves into a pretzel to try to wriggle out of what the constitution has wrought ?

          1. The Constitution creates all sorts of tensions. This is just one of them. I’m allowed to disagree with the wisdom of your or anyone else’s interpretation of constitutional bargains. I can have a view of what the Constitution requires that is different from what I think the world should be like. Constitutional arguments aren’t normative arguments.

            But, under existing Free Exercise and Establishment jurisprudence (most of which I disagree with) there is a tension, and it’s still in the law. That’s why the justices spent so much time discussing it. We will continue to see it play out in close cases.

            1. But, under existing Free Exercise and Establishment jurisprudence (most of which I disagree with) there is a tension, and it’s still in the law.

              I tend to agree. And I would argue that if one finds a significant tension between the Establishment Clause and the Free Exercise Clause, that is – since they are parked in the same sentence, separated by a mere comma – a clue that one is reading them wrong.

    4. Justice Thomas fervently asked the Court to respect Louisiana citizens and laws to allow Louisiana to effectively ban abortions because he agreed with that policy. One day later he just as fervently asked the Court to totally disrespect the wishes of Montana citizens because he did not agree with the policy. Consistency be damned.

      At a sufficient level of generality you can prove anything to be consistent or inconsistent. But unless the relevant position a judge adopts is “the Supreme Court should never strike down state laws,” there’s no inconsistency between upholding one particular state law on one topic and rejecting a different particular state law on a different topic.

    5. “One day later he just as fervently asked the Court to totally disrespect the wishes of Montana citizens because he did not agree with the policy. ”

      Not good at reading comprehension, are you? The montana court struck down the policy, not the legislature that passed it.

      1. The elected Montana Supreme Court struck down one law on the basis of another law (constitutional amendment) enacted by a super-majority of the Montana legislature.

  7. I beg to differ with the last point expressed. The difference in the travel ban case is that the VC simply assumes, from Trump’s bluster about Muslims, that hatred for Muslims motivates the travel ban; while to those of us on the right, the security concerns that Trump included in the ban order are real. Those who don’t believe that bad behaviors such as honor killings and FGM are common should at least glance at sites like gellerreport.com, which reports them on a weekly basis.

    This refusal to accept the fact of another’s belief is why courts ought not consider the motives that drive rule making. Judges often have enough bias that their findings of motive are often wrong and even malicious. The trial judge in the Flynn case is an example: in my opinion, he lied about the motives of DOJ officials.

    1. jd,
      But courts are not concerned at all about what you or I or Mrs Smith from Podunk, California/Texas think about Muslims. The courts care about the motivations of those who actually had the power to effect the ban. And the main problem for Trump was, after a long and storied history of acting racist and saying racist things, various courts found sufficient evidence of, well, racism & racist motivations.

    2. jdgalt1 : “The difference in the travel ban case is that the VC simply assumes, from Trump’s bluster about Muslims, that hatred for Muslims motivates the travel ban; while to those of us on the right, the security concerns that Trump included in the ban order are real.”

      Aren’t you quite the dupe then? Let’s review Travel Ban History:

      1. Trump made a campaign pledge of a travel ban, which he said was needed during an interim period of several months while new security procedures were researched and formulated.

      2. Those procedures weren’t discussed in detail because Trump doesn’t do detail. And those measures were equally ignored by the campaign crowds – even while they shrieked with orgasmic delight every time the word “ban” was spoken. It was almost as popular as Mexico paying for the wall.

      3. So Trump is president and announces his ban. It’s immediately tied-up in the courts for about eighteen months – many times more than the period (supposedly) required to vet and implement the new security measures.

      4. But the administration didn’t take a single step towards those measures, supposedly so critical to public safety. Trump officials would testify they did nothing. nada. zilch.

      5. Instead they just fought on&on for their ban. Because the supposed reason that lay behind it was only a con. The “policy” just never more than red meat for the base. It was a scam from Day-One

  8. I don’t think the conservatives were at all inconsistent between the travel ban case and this one, since in both cases they disregarded (at least the majority opinion in Espinoza did) the motivation of the laws when they could be supported on other grounds. Prof. Somin has been banging on for years that courts should decide if laws were enacted for Bad Reasons (how? take affidavits from every legislator, or every voter who approved a constitutional amendment? consult goat entrails? or just consult Prof. Somin?). Very few situations will be as clear-cut as Lukumi, where an ostensibly neutral rule was riddled with exceptions for everything *but* the religious practice. There isn’t, nor should there be, a rule of law that laws that can be supported for neutral reasons can be overturned if someone concludes they were really passed for Bad Reasons.

    The liberals have been pretty consistent, too: laws that discriminate against minority religions are bad, those that discriminate against majority/plurality religions are good. Consequentialism has never been an issue for progressives.

    1. I’ve got to agree – neither the majority nor the dissents considered motivation of Montana’s Blaine amendment in their decisions. In fact, the only discussion of motivations came in Alito’s concurrence. In that, he explicitly noted that he argued in Ramos that historical motivation should play not part in the decision “[b]ut I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.” Alito then recites at length the bigoted motivation for the Blaine amendments.

      The inconsistency I see is that the dissenters have said in other cases that motivation matters but completely avoid the quite-strong evidence of bigoted motivation here.

      I don’t often agree with Alito but I do here – motivation shouldn’t matter but having decided that it does, that rule has to be applied evenly.

      1. I couldn’t disagree with Alito more. In Ramos, the Court found:

        1. The Sixth Amendment guarantees criminal defendants the right to a trial by jury.

        2. Under the common law, this meant unanimous verdicts and history and precedent support that the Framers intended unanimity to be part of the “trial by jury guaranteed by the Sixth Amendment.

        3. The Sixth Amendment is incorporated against the states by the Fourteenth Amendment, so is as applicable against the states as against the federal government.

        4. Louisiana (after losing on each of the above points) tried to argue for a functionalist approach whereby their non-unanimous jury verdicts served important government interests that justified abandoning constitutionally-guaranteed unanimity, but the Court held this guaranteed right was not subject to the cost-benefit analysis Louisiana wanted the Court to employ (and which had been applied by a plurality of the Court in 1972 in addressing the same issue).

        It was in response to Number 4, after the constitutional right to a unanimous jury verdict had been established, that the Court pointed out the motivations for implementing non-unanimous juries. In other words, where the state says we have good reasons for what we did, the Court then looked at the reasons for what it had done and racism was the reason. But, importantly, the Court said this was a constitutionally guaranteed right so was not subject to that cost-benefit analysis anyway. (The racism angle was dicta, in other words; it was not essential to the decision, but was provided as historical background information.)

        Alito’s whining about the majority’s failure to discuss the motivations of this particular law is only because he was upset that the truth of the historical motivations for non-unanimous verdicts in Oregon and Louisiana was mentioned. He didn’t like the result and hated the “ad hominem” attack on the good people of Louisiana. Apparently, telling the truth of the matter while tearing down a KKK erected monument to racism is verboten in Alito’s world.

        Here, he agrees with the majority (and me) that the Free Exercise Clause decides the matter, but is upset that they don’t spill ink talking about anti-Catholic bias (not of the law at issue, mind you) but of the Montana constitutional provision upon which the Montana Supreme Court struck down the law.

        These may both be fruits, but one is an apple, the other is an orange.

        Tone deaf, would be my response. He was so incensed that the KKK’s role in two state’s non-unanimous versions provisions, that he had to throw a tantrum here. Alito is tone deaf to the point of losing important credibility.

        I didn’t think much of Alito before. I think much less of him now.

        1. I think you may be reading too much into the response. I didn’t see Alito’s concurrence as “whining about the majority’s failure to discuss” but more as tweaking the noses of the dissenters (who were in the majority in Ramos. (Whether that tweaking was appropriate behavior for a Justice is a different question.)

          Regardless, the original point was that Prof Somin was wrong in his claim that “conservatives are inconsistent” by arguing against considering motivations in the travel ban cases but considering it here. The majority didn’t consider motivation here at all. Alito’s the only one who even mentioned motivation and he did so in a very backhanded way.

          1. I agree that Alito’s aim was at the dissenters and, more so, at the Ramos majority, but it was bizarre to go into such depth regarding the bigoted history of the Blaine Amendment (which is only tangentially related to the Montana constitutional provision here) when the majority agrees that the provision violates, on its face, the Free Exercise Clause.

            Roberts did discuss the “checkered tradition” or no-aid provisions, that the model Blaine Amendment was “born of bigotry” and that many of its state counterparts had a “similarly shameful pedigree.” And the discussion was appropriate to whether there was a tradition of separating out religious schools/entities when doling out aid for secular purposes.

            Alito then goes on his tantrum which was, not in a “very backhanded way”. Rather, his concurrence was almost entirely focused on discussing the history of the Blaine Amendment (7 pages on the Blaine Amendment out of roughly 10 pages of substantive discussion and just over 12 pages total) and a little bit on the origins of the Montana constitution’s no-aid provision. I found it unbecoming and suggestive of a disturbing upset about the discussion of the racist origins of the non-unanimous verdict provisions at issue in Ramos.

  9. This will seem a good deal more reasonable after equal protection of religious institutions gets extended to include equal payment of the taxes which support the equal outlays the institutions receive.

    1. Religious institutions pay the same taxes as anyone else. Unless you mean to say all 501(c)(3) corporations are religious–why do you assume all non-believers are so uncharitable? Atheophobist

      1. I’m with Lathrop on this one. Down with 501(c)(3) altogether.
        It’s not like Harvard is short of cash.

        1. Harvard started out training Puritan/Congregationalist ministers. It still has a Divinity School.

          1. That’s different.

      2. The band performance at church doesn’t pay the same taxes as a Bruce Springsteen concert; those who attend the concert at church don’t pay the same taxes as those who attend a Springsteen concert.

        The summer camp or babysitting operation at church doesn’t pay the same taxes as a camp or babysitter with no church connection.

        Nonprofit administrators pay taxes with respect to their housing expenses — unless they are associated with a church, which gets special treatment.

        Much of the average church’s budget or activity differs from that of a social club, or country club, but the tax treatment is substantially different. Relatively little of what most churches do is charitable. Most of it is entertainment and customer support.

        1. Your ignorance of what religious institutions do is rivaled only by your malice and trollery.

          1. The church closest to me has at least one faux rock band every weekend and a weeknight concert two or three time a month. My son was in a band with a sone of that church’s full-time music director. That church has a better sound system than most clubs.

            The summer camps at that church clog traffic.

            Point your Google-compatible device at “parsonage allowance.”

            My neighborhood church had an on-site Starbucks until recently. It did strong business when the church was leased to the county for elections.

            That church offers marriage counseling, art classes for children, academic tutoring, child care — all of which compete with tax-paying businesses.

            How much of an average church’s budget is devoted to genuine charity, and how much subsidizes the entertainment and customer support of church members?

            1. It’s hilarious how someone like you thinks they know so much about churches and religion.

              “The trouble with our liberal friends is not that they are ignorant, but that they know so much that isn’t so.” — Ronald Reagan, 1964

        2. :The summer camp or babysitting operation at church doesn’t pay the same taxes as a camp or babysitter with no church connection.”

          Non-religious charities such as the Boy Scouts run camps and Feminist collectives run babysitting coops — all enjoying the same tax exemptions as your hated religious organizations.

          It’s section 501(c)(3) of the IRS code. Look it up.

      3. “Religious institutions pay the same taxes as anyone else. Unless you mean to say all 501(c)(3) corporations are religious–why do you assume all non-believers are so uncharitable? …”

        Leaf,
        Is this true? It was my understanding that they don’t pay property taxes, which–here in California–is a HUGE benefit. Not sure how other states handle this issue. I believe that friends of my parents got into tax trouble for turning their home into a ‘church.’ Or attempting to, anyway. This was 30+ years ago, so the related laws may or may not be the same as now.

        1. Good point santamonica. I guess that would be a state by state issue, but I imagine in most states most types of non-profits would have similar property taxes. Also tort liability would be the same idea–generally theres a statute limiting liability and depends on the state and what type of non-profit but my impression is most non-profits are treated somewhat the same.

        2. Texas also provides special tax exemptions for religious organizations that are not available for non-religious organizations.

  10. “The decision is an important victory against government discrimination on the basis of religion.”

    Nah. It’s an important victory for the federal government in monopolizing power over the states, including the ability to dictate what “discrimination” on the basis of “religion” is or isn’t permissible.

  11. The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias.

    Except the liberal judges upheld a law limiting the religious liberties of U.S. citizens, ignoring the 1A, while the conservative judges upheld an order to restrict the entry of foreign citizens from countries known to harbor enemies, a case where application of 1A is certainly debatable. All biases are not equally deserving of condemnation.

    1. …and your biases are uniquely undeserving of condemnation?

  12. As a matter of policy, the government should not be subsidizing private schools for the same reason it should not be subsidizing private police forces or private libraries or private much of anything else: The government offers a service, in this case education. As with most government offerings, education is badly underfunded already for all the things it is expected to do. If people don’t wish to use the service the government offers, they are welcome to decline it, but they don’t then get government funding for their private alternative.

    That, however, is a policy view and not a First Amendment view. If the government is going to subsidize private schools, then my usual view of the First Amendment kicks in: the government should neither give special favors to, nor discriminate against, religion. So on the First Amendment issue, I think this case was rightly decided.

    1. Government education is badly overfunded, not underfunded.

      If the government must be in the business of funding education, it should shutter all public schools and go to a pure voucher system.

    2. I’d flip that around: As a matter of policy, the government should not be providing itself anything that can be obtained through the private sector. It should not run it’s own grocery stores for the poor, when it can provide food stamps, for instance.

      Schools are a particularly strong instance of this, because the only reason the government gave up on subsidizing private schools, and started running its own, was to have the opportunity to indoctrinate children, which is something we really ought to avoid government doing at almost any cost.

      1. The government started running its own schools because private education was not meeting the demand. Before public schools, illiteracy was many times what it is today. Do you seriously think that if the public schools all closed, that the free market would pick up the slack?

        My grandmother, who was born in 1890, never learned to read or write. Her children did. The difference was the availability of public schools.

        1. Do you seriously think that if the public schools all closed, that the free market would pick up the slack?

          I suggest you look up the origins of Catholic School education in the US. Also, look at when “public schools” were started in comparison.

          1. And what were literacy rates at the time?

          2. “look at when “public schools” were started in comparison.”

            The Old Deluder Act was passed in 1647.

        2. Before public schools, illiteracy was many times what it is today. Do you seriously think that if the public schools all closed, that the free market would pick up the slack?

          Yes.

          Before public schools was a long time ago. When even rich people died of infected cuts. We’ve had a hundred and fifty years of economic growth since then. Per capita GDP in 1870 was about $4,000 (in 2020 money – even that well up from a hundred years previously.) Comparing literacy rates with a nation more than ten times poorer than now is anachronistic.

          If there were no government vouchers, it’s reasonable to speculate that charities might not pick up all the children whose parents could not afford to send them to private schools, or could not homeschool. Maybe they would, maybe they wouldn’t.

          But with vouchers there’s no conceivable reason why any child should miss out. The government promises to hand out money if school poor kids, and nobody’s going to take it ? Really ?

          1. “Before public schools was a long time ago. When even rich people died of infected cuts. We’ve had a hundred and fifty years of economic growth since then. Per capita GDP in 1870 was about $4,000 (in 2020 money – even that well up from a hundred years previously.) Comparing literacy rates with a nation more than ten times poorer than now is anachronistic.”

            I think you’ve accidentally made a pretty strong case for public schools.

            1. Ah, the umbrellas cause rain theory.

              The mystery is – why do communist umbrellas fail to cause rain, but capitalist ones always do ?

              1. Fortunately we have nothing to worry about from communists. If they try and invade with their broken communist armies, we can repel them with our privatized, capitalist armies.

      2. “because the only reason the government gave up on subsidizing private schools, and started running its own, was to have the opportunity to indoctrinate children”

        What the what?

        1. Really, you know nothing about the origins of publicgovernment schools in America, do you? Indoctrination was their explicit purpose.

          1. Right and the only reason municipal water systems exist is to surreptitiously poison the water supply when the time comes. Also, Lee Harvey Oswald used to have three ways with Lyndon Johnson and J Edgar Hoover. And Trump was murdered two days after the inauguration and replaced with a Russian body double.

            Brett, if you’re going to peddle conspiracy theories at least make them interesting.

            1. For God’s sake don’t mention municipal water systems or you’ll have Brett muttering about “our precious bodily fluids” ……

      3. If there were only private schools, would we end up with the broccoli debate all over again? (Because presumably we’d still have mandatory education.)

      4. “…was to have the opportunity to indoctrinate children…”

        In a secret lair, a cabal of villainous educators are plotting right now how to further their evil scheme to indoctrinate children by teaching them algebra. And then after that? P.E. MUAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAH WHAT WONDERFUL WEBS WE WEAVE

  13. “Montana’s original Blaine Amendment was enacted in 1889, as part of a nationwide Blaine Amendment movement motivated by bigotry against Catholic immigrants.”

    It’s way more complicated than that — and Blaine was from Maine, which until 1820 was Massachusetts and I will use Massachusetts because disestablishment in Maine is very hard to trace.

    From 1620 to 1820, every town in Massachusetts had a church — the Puritan church became the Congregationalist church, but to *be* a town, you had to have a church and a minister. Both of which were paid out of the town property tax, and the town’s minister was rehired or fired annually at town meeting.

    The bigger issue of contention was his “firewood allotment” — how many cords of firewood he’d get to heat both the parsonage (his house) and the church, but I digress.

    In 1820, the Baptists (who had split off from the Puritan/Congo on the issue of baptism (dunk underwater or not) and a few other things) said it wasn’t fair to make them pay for *two* churches — as they already were paying for the Baptist church. And between 1820-1855, if you could prove that you were paying to support a Baptist Church, you didn’t have to pay for the town church.

    And in 1855, church and state were separated. It got messy because the church had been the town hall as well, and it’s how the church wound up owning half the town common in some places.

    The second issue here is that you didn’t have to have a K-12 school system and many small towns didn’t. (Some in Maine *still* don’t.) Instead, you “contracted” with another town or a private school to teach your children.

    When the Catholics started arriving in large numbers, and then took over the municipal governments of many cities, what they proposed doing was contracting with the local Catholic parochial school to educate ALL the community’s children. Closing down the city’s schools and requiring *all* the children (of all religions) to instead attend the Catholic ones, at penalty of truancy.

    Needless to say, that didn’t go over well with the Protestants, and while the Catholics held the majority in various industrial cities, they did *not* in the states as a whole, so the state constitutions were used to prevent the Catholic-controlled cities from doing this.

    That’s where the Blaine Amendments came from — and don’t forget that Blaine lost to Grover Cleveland.

    Were there a lot of quite non-Christian behavior on both sides of the issue, absolutely. A disgusting lot of it — on both sides — but the concern was replacing the public schools with parochial ones *and* forcing all children to attend the latter. That’s not what’s happening here.

    1. Did Catholics really threaten to send ALL students to parochial schools? I would love to see a source on that. Big if true. They would never have the guts these days to go all intregralistic.

      Remember, though, the system of public schooling based on the Prussian model was all about making good WASPs, so one says you can’t blame them.

      1. Ahhh the good old days when progressives wanted everyone to assimilate to WASP values.

      2. I don’t know if that is true or not. I would be surprised if you could not find priests and bishops in Ireland who were advocating that Irish emmigrants do that in America. The Know-nothings earned a lot of the bad press they get today, but you rarely see mention that they were reacting to some truly appalling anti-democratic provocations intended to incite Irish immigrants to establish the Catholic church. Not saying there was much uptake at this end, however.

  14. Breyer displays a fundamental misunderstanding of the Establishment Clause. The Framers’ primary goal was solving the problems of the AoC (anarchy) while preventing tyranny. So anarchy is just as bad as tyranny from the Framers’ point of view—the Religious Clauses are important to view in this context. So religion was a preexisting power structure that was useful to the Framers in both preventing anarchy AND tyranny. So a robust religious market would create a fractured religious power structure at the top that could not be manipulated by a tyrant by simply installing a puppet at the top. The individual churches help create order and civic virtue which guard against anarchy. So counterintuitively the Establishment Clause was intended to perpetuate a robust religious market that could not be manipulated by a tyrant.

    I will add that large religious organizations that seek to grow ever larger are on some level unAmerican because if that organization grew too big it would be ripe for a tyrant to install a puppet and use the religious organization in furtherance of tyranny.

    1. No. John Adams’ father-in-law was a Puritan minister — he’d never go along with what you propose.

      The fear was that the new Federal Government would impose a religion on the states — that ANOTHER STATE would be imposing THEIR religion on YOUR state.

      MA, NH, & CT were Puritan of varying flavors, Roger Williams had split and taken RI with him, PA was Quaker, MD Catholic, VA fallen Anglican, etc.

      In the era of sail, Boston was the country’s largest city (it took steam tugs to make NYC viable), MA & VA were the big states, each afraid of the other taking over with everyone else afraid of both.

      1. RE Lee’s behavior in 1861 indicates many forces existed to perpetuate the existence of states so in 1789 that would not have been the underlying motivation of the Religious Clauses. Anarchy and tyranny were the major concerns of the Framers and religious organization were a preexisting power structure useful as Montesquieuian power dividers.

  15. The Blaine amendments are anti-Catholic bigotry writ large.

    1. It’s not that simple.

      1. Yes, it is.

        1. No it isn’t. Look up someone like James Michel Curley or Tammany Hall.

    2. The Catholic Church is an embarrassment run by an anti-Western leftist, so it should be opposed.

    3. “The Blaine amendments are anti-Catholic bigotry writ large.”

      Since Montana’s Blaine amendment states that it applies to all religions and sects, it is exactly as anti-Catholic as Trump’s travel bans were anti-Moslem.

  16. Nicely done. Very good summary. And I agree.

  17. Will taxpayer dollars go to religious schools that only hire teachers of the schools religious orientation? Will teachers who are not of the religious orientation of the school be fired? Will taxpayer dollars be spent on schools that deny science and only provide religious explanations for natural phenomena? If so, the separation of church and state will be destroyed and America will be ruled by priests and pastors not people sworn to serve all the people.

    1. Religious claimants and their clinger allies will push as far as they can, because they are selfish, but modernization and demographics indicate their influence will continue to diminish in America — Christians are likely to become a minority in a decade or so — and their special, undeserved privileges are likely to recede over time.

      Republicans will continue to gorge at public expense in this context for a few more years, especially in the backwaters.

      1. I’m so glad the Founding Fathers were much smarter than you, and if you had your freedom of speech under the First Amendment threatened the same way that you threaten freedom of religion also under the First Amendment, I’d just point and laugh.

  18. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive

    Is this your first exposure to the “progressive” Supreme Court justices?

  19. Hopefully the state will now do the smart thing and simply phase out the credit, etc. No religious institution of any sort should be supported in any way with tax dollars (or tax exemptions, hint, hint).

  20. The opinion goes on to explain that the Blaine Amendment cannot possibly survive strict scrutiny, as there is no narrowly tailored state interest that can justify a categorical ban on aid to religious schools, while simultaneously permitting aid to otherwise similar secular ones.

    What about a law that bars any school that benefits from the tax credit from using the tax credit to teach religious doctrine? That would apply equally to religious and secular private schools.

    And, speaking of inconsistency, when Thomas writes “…the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment clause, is fundamentally incorrect,” doesn’t that imply that states could also be hostile to religion in general? And, if not, why not? And why doesn’t this cut against this argument that what the Montana court did was unconstitutional?

    1. And, speaking of inconsistency, when Thomas writes “…the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment clause, is fundamentally incorrect,” doesn’t that imply that states could also be hostile to religion in general? And, if not, why not?

      Not. The why not is that there are two separate clauses about religion to consider in the 1st Amendment – the Establishment Clause and the Free Exercise Clause. Being “hostile to religion in general” is where the Free Exercise Clause comes in. Thomas is having a kick at the “modern view’ of the Establishment Clause.

      Different clause, different text, different analysis.

      1. Not. The why not is that there are two separate clauses about religion to consider in the 1st Amendment – the Establishment Clause and the Free Exercise Clause. Being “hostile to religion in general” is where the Free Exercise Clause comes in. Thomas is having a kick at the “modern view’ of the Establishment Clause.

        A fair point. But Thomas doesn’t believe that the Establishment Clause is incorporated, so presumably that wouldn’t be an obstacle to state hostility towards religion. Does he believe that the Free Exercise Clause – but not the Establishment Clause – is incorporated?

        1. Does he believe that the Free Exercise Clause – but not the Establishment Clause – is incorporated?

          Correct, or correct-ish. He has no problem with the Free Exercise clause being an individual right that can be incorporated against the States. But he thinks the Establishment Clause is more likely to be a State right against the Feds, than an individual right. If it’s a State right then obviouslty it can’t be incorporated against the States.

          Although it seems odd to think it could be a State right against the Feds, in historical context it’s not so odd. Several States had Established churches, so the idea that individuals should have a right to be protected against the establishment of churches is itself a bit odd.

          Add to that the fact that a State Established church represents a clear State interest – ie it has gone to the trouble of establishing a church, precisely because it wants its citizens to obey the right God in the right way; and Thomas’s suggestion kinda makes sense.

          But in any event, his fallback is that even if the Establishment Clause is an individual right, that can be incorporated; an “establishment of religion” is not what the “modern view” thinks it is.

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  23. “If there is a violation of the Establishment Clause or the Free Exercise Clause any time the state provides assistance that helps religious people engage in “spiritual pursuits,” then the same argument can be used to justify excluding religious institutions from virtually any government service or tax credit. If the government provides police and fire department protection to religious institutions on the same basis as secular ones…”

    State governments do not need an argument to “justify excluding religious institutions from . . . tax credit.” The Constitution does not mandate tax credits to religious institutions. The point of legislation like the Blaine Amendment is to get the government out of providing special benefits to certain religious institutions.

    Fire and police protection are not special dispensations. They’re available to everybody. Tax shelter is not.

  24. “Few would deny that the state government would be acting unconstitutionally in such a case, because the denial of tax credits was the result of a provision in state law that explicitly discriminates on the basis of race.”

    Everyone would (or should) deny that there is a constitutional injury (apart from the segregation itself) under those facts.

  25. Prof. Somin, I understand your argument. Could you perhaps clarify one issue. Exactly what types of government actions or measures do you think are prohibited by the establishment clause?

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