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ESTABLISHMENT CLAUSE AND RELIGION

October 1, 2019 by Dan McCue
The U.S. Supreme Court building, June 2019. (Photo by Dan McCue)

This year’s term begins Monday, Oct. 7, and will extend into late June, encompassing the presidential primaries and ending just before the Republicans and Democrats host their presidential nominating conventions.

As always, one can expect the Justices’ statements from the bench during hearings, the court’s rulings, and the makeup of the majorities in those rulings, to invite intense scrutiny.

Among the high-profile issues they’ll tackle early in the term are the fate of the Deferred Action for Childhood Arrivals (DACA) program and whether Title VII employment discrimination protections extend to members of the LGBT community.


You can read previews of the other cases here:


ESTABLISHMENT CLAUSE AND RELIGION

The justices will also take up the question of whether Montana violated the religion clauses or the equal protection clause of the U.S. Constitution when it invalidated a generally available and religiously neutral student-aid program simply because the program afforded students the choice of attending religious schools.

Espinoza v. Montana Department of Revenue is one of those cases that makes me very much wish Sandra O’Connor were still on the court,” Walter Dellinger said.

“I remember when I was clerking for Justice Black, he would often write in his notes on a case, “follow White,” meaning Justice Byron White, in a particular area of the law, or “follow Harlan,”  meaning Justice John Harlan, in another area. And when I come across a case like this, my mind immediately goes to the words ‘Follow O’Connor,'” Dellinger said. “She voted with the conservative justices when it came to upholding the permissibility of including religious groups in broad-based public programs.”

The former acting Solicitor General said O’Connor based her belief in this regard on a “very simple but powerful insight.”

“Her position was, ‘private prayer, good; government prayer, bad,’” Dellinger said. “So she was receptive to upholding the right of religious groups to participate in public funded programs, but not of governments imposing religion, by having prayers at council meetings or erecting statues depicting the 10 Commandments.”

“Justice O’Connor was someone who thought government had no business sponsoring prayers. For her the key to these kinds of cases was ‘intervening private choice.’ That was the circuit breaker,” he continued.

Espinoza stems from the Montana state legislature’s 2015 decision to create the Montana Tax Credit Scholarship Program, which allows Montanans a tax credit for $150 of their contributions to a privately-run scholarship program.

However, the Montana Department of Revenue refused to implement the program, citing the state’s Blaine Amendment, an archaic anti-religious law that forbids tax credits going to schools owned or operated by a “church, sect, or denomination.”

Eventually, the Montana Supreme Court struck part of the program down finding it violated the state constitution.

“Basically, they said, ‘this money can’t go to religious schools, based on a conflict with the state constitution,’ and the state immediately shut the program down,” Paul Clement said.

“Now, you can reasonably argue that the Montana Supreme Court decision wasn’t discriminatory because it was based on the wording of the state constitution, but it nevertheless denied parents the ability to send their children to the school of their choice.

“As a matter of federal constitutional law, I think the state’s interest here is pretty attenuated,” he continued. “But there’s nothing attenuated about the effect on the parent. In the end, a parent wants to send their child to a school that they think is going to provide a better educational opportunity for them. They could choose a religious school, for wholly non-religious reasons. But now they’ve been told, ‘No, you can’t do that.'”

“That’s the challenge in this case: The state’s interest seems pretty attenuated and the parents’ interest seems pretty direct,” Clement said.


You can read previews of the other cases here:

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