Unless you are living under a rock, you are probably aware that religion is experiencing a rapid decline in the United States, including in economic power. In order to counter ever-decreasing budgets, many churches have begun to seek financial support from the government, often in the form of direct cash grants. This situation has resulted in many high-profile legal challenges, such as in Espinoza v. Montana Department of Revenue, set for oral argument this week, to determine whether state funding mechanisms can be utilized to fund religious instruction. The Espinoza case comes to the U.S. Supreme Court after the Montana Supreme Court upheld the denial of state funds to religious schools as a valid exercise of the state right to enact “no aid” provisions that are “broader and stronger than the First Amendment prohibition.” Put simply, Montana is arguing that if it wants to expand and strengthen the First Amendment’s Establishment Clause with its own state specific statute, the Supreme Court has said that they can.
Those arguing to overturn the Montana Supreme Court decision focus their argument on the fact that Montana’s no aid provision is a byproduct of the prejudiced Blaine Amendment framework of the past. For any who are not aware, the Blaine Amendment framework was a bigoted state system that forced Protestant Bible reading and prayer in public schools and was only overturned once the First Amendment federal standard was incorporated to the states. Accordingly, the Petitioners in the Espinoza case are correct in pointing out that the Blaine Amendment framework, including its “no aid” provisions, were not intended to separate church and state. In fact, in the Blaine context where you have a state system of Protestant religious establishment in public schools, the only conceivable function of denials of government aid to all other religious schools, is to maintain the Protestant establishment as the only form of establishment.
If the forced Protestant Bible reading and prayer from the Blaine framework are stricken down, however, you also strike down everything that makes the Blaine framework prejudiced. What’s left is the system of secular schools we have today where government is barred from financing or imposing any religious practices. In other words, there is a major difference in the function of a “no aid” provision depending on whether it is operating within a bigoted establishment system or a secular one that denies aid to all religions as a matter of liberty.
For example, the secular, pre-Blaine, federal framework of “no aid” denials of government support to religion was originally enacted as an essential function of free conscience liberty, meant to guarantee citizens against the free conscience tyranny’s conducted by civil support of religion in the colonial past. James Madison could not have been more clear that under this standard, first adopted in Virginia and later enumerated in the First Amendment, viewed government support of religion as a sin and a per se violation of freedom of conscience regardless of whether any taxpayer objected. Accordingly, from an originalist lens, Espinoza becomes simple and rather uncontroversial. After all, if the First Amendment’s incorporation to the states means the prejudiced Blaine frameworks of the past can, and should, be struck down, it also means the First Amendment’s pre-Blaine prohibition against aid to religion must also be incorporated to the states. The Petitioners in Espinoza, many of whom claim to be originalists, have missed, or rather conveniently left out, this rather obvious point.
Working in the favor of the Petitioners in the Espinoza case, however, is the fact that several members on this court do not seem to care at all about rather obvious points regarding federal anti-establishment religious liberty. For example, despite the fact that James Madison was clear the federal standard viewed civil support to religion as a contradiction to religion itself “for every page of it disavows a dependence on the powers of this world,” this Supreme Court has forced states to provide cash grants to churches for property enhancements. Accordingly, despite the fact that it can be shown original free conscience First Amendment liberty was drafted specifically to prevent the kinds of assessment frameworks that mirror the type the Petitioners in Espinoza are asking for, I suspect the Supreme Court will again ignore all history, all law, and simply choose the outcome that favors the Christian religion.
The reason many within the public will accept a decision that forces states to fund religious instruction is likely due to the hysteria that surrounds religion today. To hear some tell it, despite every conceivable advantage and favor in the law and in politics, they nevertheless exist in a state of continual peril. In the public-school context, at least once a week I personally see someone I know on Facebook share some meme or quote some figure (including the current president), that claims something to the effect of “God was taken out of our schools.” The fact is, God was never taken out of public schools, all American students can currently pray to any god they want with a guarantee against any government interference. Unfortunately, these facts won’t stop the president, nor many of his supporters from repeating the claim God has been taken out of public schools.
To understand what is going on in religious liberty cases these days requires understanding that the victim complex simply has to exist for many religious people, regardless of the facts. Without the victim label, the hateful discrimination and demonization against nonbelievers as the cause of all the country’s ills could not be justified. The victim label makes examining why private religious participation is declining secondary to manufactured outrage over forcing states to fund religious instruction. Moreover, given the state of religious decline, if religion is returned to its “primitive state” as Madison intended, where religion is maintained entirely by private donations, religious institutions will not have the economic resources they once did. For some, the decline of religious influence, even apparently over a willingly apathetic population, can only result in the country’s moral decline. In order to prevent this decline, it appears many are willing to undermine the law, free conscience liberty be damned. At this point all I can do is ask these folks, my fellow Americans, to consider the fact that forcing states and therefore the people to fund religious instruction, even if you think it is for their own good, has never turned out well for any country. The Espinoza case therefore represents a crossroad for the Court and for the country. On the one hand, we can choose to uphold the state of Montana’s pre-Blaine, First Amendment provision of anti-establishment liberty. Or we can succumb to irrational fear and hatred and choose to distort the law so as to force states to provide mechanisms for the financial support of religious instruction an increasing number of Americans are privately rejecting.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
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