MARY REICHARD, HOST: It’s Monday morning, a new month and new work week for The World and Everything in It. Today is the 3rd of February, 2020. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Before we get started, just a quick correction.
On our Culture Friday, we talked with Albert Mohler and because of an editing error—and this one’s on me—we removed a journalistic disclosure that is very important. Mohler is a member of the board of the organization that governs WORLD. If you look on our magazine masthead, you’ll see his name, but it’s our practice to say that whenever he appears on our program. We did say it, but, again, in editing the program down, I inadvertently removed that disclosure.
Wasn’t hiding anything, just in the deadline rush, I cut it. Very sorry about that.
REICHARD: Duly noted! Well, it’s time for Legal Docket. Today, coverage of probably the biggest religious liberty case this term.
But first, I want to note an opinion handed down last week that, for now, allows enforcement of a new rule that non-citizens must show that during the time they’re here, they won’t be dependent on public aid.
The states of New York, Connecticut, and Vermont, as well as the city of New York, along with several activist groups, mounted an immediate legal challenge. It succeeded before landing in the U.S. Supreme Court.
In his concurring opinion, Justice Neil Gorsuch had a colorful response to federal judges who use injunctions to stall out presidential policies.
EICHER: Justice Gorsuch borrowed a phrase from The Lord of the Rings by J.R.R. Tolkien. You may recall the inscription on the ring proclaiming it the one ring that shall “rule them all.”
Gorsuch called the overreaching judicial order as the “injunction to rule them all.”
Drawing on that analogy, Justice Gorsuch wrote of judges who frame injunctions as “nationwide” in scope, and in doing so directing the behavior of parties that aren’t even before them in court.
That, he said, goes beyond constitutional powers granted to them, and one does not simply exceed constitutional powers.
REICHARD: Right, just as one does not simply walk into Mordor.
I’ll quote Justice Gorsuch directly: “The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.” And then, “What in this gamesmanship and chaos can we be proud of?”
EICHER: Ouch. Well, no missing his meaning in that!
REICHARD: Justice Thomas concurred in that opinion and it was similar to an opinion Thomas rendered in 2018 with regard to challenges to President Trump’s travel ban that a single judge could stop in its tracks.
EICHER: OK, well, we’ll put a link to the opinion at worldandeverything.org.
Now on to oral argument in a case that may end the practice of a state disfavoring religious education over government education. Montana ended a public scholarship program because some parents chose to use the benefit to place their children in religious schools.
Here’s how the lead plaintiff in the case, Kendra Espinoza, described it to us in an interview from 2017:
ESPINOZA: That was kind of a hard blow and it felt like it was discrimination. And it felt wrong. There’s no reason that I should be excluded just because I wanted to send my kids to a certain school. I didn’t feel that that was fair or right …And scary to think that I would have to pull the children and not have opportunity to send them there.
Three years later, Espinoza’s case is now before the U.S. Supreme Court.
Here’s the background. In 2015, Montana created a program that gave a $150 tax credit to people who contributed money to a privately run scholarship program. The donations were voluntary, charitable, and private. And the program made no distinction between secular or religious schools.
But in 2018, the Montana Supreme Court declared the program violated the state constitution. The reason? Because the program gave families a choice to use their scholarships to attend religious schools.
So the court struck down the entire program. And that, says Espinoza, violates the First Amendment’s guarantee of free exercise of religion and the 14th Amendment’s equal protection guarantee.
Here’s how her lawyer, Richard Komer, put it:
KOMER: The only reason the court invalidated the program was because it included religious schools. And the court’s remedy did not cure its discriminatory judgment, nor should the remedy shield the judgment from review. Petitioners brought this lawsuit because they were denied scholarships based on religion, and they are still being denied scholarships based on religion.
On the other side, Montana’s lawyer Adam Unikowsky reminded the court of who controls education, and it’s not the federal government:
UNIKOWSKY: I do think that one important point in this case is that states generally have had power over education, and to decide that they’re only going to fund the public school system, and that is the ultimate effect of the state court’s judgment in this case.
The ultimate effect being to shutter the whole scholarship program for everybody.
Unikowsky got lots of pushback, especially from Justice Brett Kavanaugh. He and four other justices attended private, Catholic schools at some point in their lives.
KAVANAUGH: Suppose the state said, “We’re going to allow the scholarship funds to be used for secular schools or Protestant schools, but not for Jewish schools or Catholic schools.” Unconstitutional?
UNIKOWSKY: Yes, so I think that…
KAVANAUGH: Is that a yes?
KAVANAUGH: Okay. So what’s different when you say the scholarship funds can be used for secular schools but not for Protestant, Jewish, Catholic or other religious schools because of the religious status?
UNIKOWSKY: So, I think the right lens to look at that hypothetical is the Establishment Clause, which prohibits the state — regardless of whether there’s an infringement on any individual liberty, I think the Establishment Clause prohibits the state from distinguishing between one religion versus a different religion. And I think that’s an example –
KAVANAUGH: But a lot of the free-exercise equal-treatment cases … say you can’t exclude religious people, religious institutions, religious speech because it’s religious from a generally applicable program. The fact that it’s odious to the Constitution to quote the words of Trinity Lutheran.
Trinity Lutheran: that’s a Supreme Court ruling that said the state of Missouri violated the Constitution with a grant program that excluded religious schools from money set aside for playground resurfacing. A broad 7-2 decision, but also narrow in the sense that it explicitly limited its scope to playgrounds.
The question now is whether to expand that protection to the subject of this case, scholarships.
Justice Elena Kagan didn’t seem to think so.
KAGAN: I was one of the seven in Trinity Lutheran, but there seems to me a real difference in this case. In Trinity Lutheran, the — a state was using the religious status of various people or entities to limit access to a unrelated public benefit, to a completely secular public benefit … but even put that aside, what this is is essentially a state saying, for many reasons that have been viewed as legitimate, even though not shared by everybody, but have been viewed as legitimate for many years, we don’t want to subsidize religious activity, in particular religious education. That’s a far cry from Trinity Lutheran.
But the lawyer for the government, in support of the parents, disputes that difference. Deputy Solicitor General Jeffrey Wall:
WALL: I get that you can say it’s a harder case because it’s — it’s education and it’s not a playground. And in that sense, it may be a harder question, but the Montana Supreme Court didn’t take it as a case about use. … It said religiously affiliated schools. That’s a status-based distinction. And I don’t think we can distinguish that from Trinity Lutheran.
And Wall underscored another point.
WALL: Everybody concedes that if all the parents in this program had wanted to choose secular schools, there’d be no basis for the state court’s ruling. The scholarship program would still exist. It’s only because some parents said I want to send my kids to schools like Stillwater…
“Stillwater” is the name of one of the affected Christian schools.
Now, the liberal justices worried that a win for the parents here might have broader implications that could hurt public schools. Would states have to directly fund private religious schools because they also fund public schools? And they doubted that the parents even had standing to bring the case at all.
And Justice Kagan wanted to make it clear that striking down the scholarship program in Montana wasn’t necessarily about religious bigotry.
KAGAN: You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that … none of those things have anything to do with animus towards religion.
But the history of that amendment under which the scholarship program was struck down, called a Blaine Amendment, is fraught with animus. That aspect is a matter of historic record, and it’s undisputed.
The genesis of the Blaine Amendments came in the 19th century when fervent anti-Catholic sentiment led to their passage in 37 states.
In 1985, the Supreme Court ruled that if a law has biased origins, that’s reason enough to invalidate it. Even decades later.
Now, lawyer for Montana, Adam Unikowsky argued a state convention in 1972 considered the Blaine Amendment anew and adopted it again. At that point, lawmakers used no bigoted comments in their arguments. To the contrary, he said, its primary reason was to keep religions from state coercion.
But that assertion didn’t gain traction among the more conservative justices.
Justice Samuel Alito set up another scenario to test Montana’s stance:
ALITO: I’ll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the — the recipients of the scholarships, and some people say: “Wow, these are mostly going to blacks and we don’t like that and that’s contrary to state law.” So the state supreme court says: “Okay, that discrimination is — we’re going to strike down the whole thing.” Is that constitutional?
UNIKOWSKY: No, so we don’t think the race analogy is apt. I don’t think that’s constitutional, and we just don’t think that race and religion are identical for all constitutional reasons…
Unikowsky went on to argue that race and religion are not the same things for every constitutional purpose.
He cited James Madison in saying government has a preference not to fund religious activities. Not to prohibit it, but neither to fund it.
The bench is obviously divided on this matter. The outcome has wide repercussions. A half million students in the United States attend private schools, and more than half can afford to go only with the help of publicly funded tuition vouchers or tax-credit scholarships.
And that’s this week’s Legal Docket!