The Legal Incoherence Of Wannabe Theocrats Is On Full Display This SCOTUS Term

Although the U.S. Supreme Court has temporarily suspended its remaining docket due to our current public health crisis, two cases with far-reaching implications to religious education are still going to be decided this term. Taken together in fact, these two cases reveal a fundamental incoherence to the legal strategy utilized by those pushing for a restructuring of the relationship between government and religious education.

The first case, Montana Department of Revenue v. Espinoza, held oral arguments this past January. It is not overselling it to say the result could profoundly alter how our government funds public education. The relevant facts surrounding the Espinoza case, however, are relatively simple. The Supreme Court has held states have the right to strengthen the First Amendment’s Establishment Clause liberty with state-specific statutes or constitutional provisions, if they so choose. Moreover, even the petitioners in the Espinoza case conceded during oral argument that as a function of this Establishment Clause liberty, states can choose not to fund secular and religious private schools entirely. Now, you and everyone else can read right here and see that upholding this recognized state right is exactly what the Montana Supreme Court did in the Espinoza case. To the petitioners in Espinoza and those voices who support them, however, the refusal by the Montana Supreme Court to require the state to fund private schools when it democratically elected not to was somehow akin to upholding an anti-Catholic 19th century bigoted Blaine-type framework.

To put it bluntly, the argument that what the Montana Supreme Court did in its December 2018 decision was uphold a 19th century Blaine-type form of discrimination is legally incoherent. Indeed, it was none other than Chief Justice John Roberts who exposed this incoherence at oral argument by utilizing a basic understanding of history and legal standing. For those who may not be aware how the bigoted Blaine framework of the past operated, 19th century states had largely established public schools as uniquely Protestant in that they forced Protestant bible reading and adoption of other Protestant religious practices onto students of different Christian denominations and different religions. In this 19th century context, no-funding provisions functioned solely to maintain Protestant schools as the only state school.

In modern-day Montana however, even the petitioners in Espinoza conceded that the state’s current no-funding provision was not favoring one form of religion over another and in fact treats all private schools the same, regardless of their religious identity. The lack of discrimination by Montana’s modern no-aid provision was why Roberts noted during oral argument that although any conceivable injury that petitioners could point to in the Espinoza case necessarily “flows through the schools,” there was no school at party in the case. The reason no school was a party in the Espinoza case is absent any claim of discriminatory injury by the state, it becomes virtually certain that any religious school that challenged Montana’s 1970s constitutional provision would have seen their cased dismissed on standing grounds. Moreover, as Justice Sonia Sotomayor pointed out, the petitioners in Espinoza are even farther removed from having legal standing than the schools themselves: “They aren’t the taxpayers receiving the credits, they aren’t the schools receiving the money from the state, and there is no guarantee that their children will receive scholarships.”

The fact that this weak of a case where under the petitioner’s own argument the party that any conceivable injury “flows through” does not have a rational legal basis for standing, made it all the way to our nation’s highest court is an embarrassment. But in order to appreciate the full scope of the legal embarrassment going on here, the Espinoza case must be placed in the context with another religious case involving education this term: Our Lady of Guadalupe School v. Morrissey-Berru.

Like Espinoza, the facts of the Guadalupe School case are relatively straightforward. The question presented, however, is a degree more complicated than the one presented in Espinoza due to a recent Supreme Court precedent called the “Ministerial Exception,” that was only vaguely defined when it was established. The ministerial exception prevents private employment claims from being taken against church bodies (such as religious schools) and is legally based on the principle enshrined in the First Amendment that government and religion should exist in a state of separation, and for what it is worth, I wholeheartedly agree. However, when establishing the ministerial exception back in 2012, Roberts declined “to adopt a rigid formula for deciding when an employee qualifies as a minister” and therefore cannot sue the church. The Guadalupe School case, therefore, appears to turn on whether the employees at issue qualify as ministers.

What makes the Guadalupe School case remarkable is not the arguments being made in the case itself, but the context in which these arguments are taking place. Remember, just this past January, many of the same forces/voices who undoubtedly support the religious school’s argument in the Guadalupe case — that it should be kept separate from government — argued that government should be forced to fund religious schools. I submit that no sane reading of our religious liberty clauses supports the notion that government is both commanded to stay out of the affairs of religious schools while at the same time existing under the obligation to fund them. Yet, it is virtually certain multiple Supreme Court Justices, perhaps even the Court itself, will agree with such an obviously incoherent legal standard this term. We should all be embarrassed it has come to this.

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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