The Court missing the point in Espinoza v. Montana Dept. of Revenue

Sources: Espinoza v. Montana Department of Revenue

             

https://ballotpedia.org/Espinoza_v._Montana_Department_of_Revenue

 

            In 2015, Montana implemented a tax credit program which was intended to assist lower income families in paying for private schools and non-profit organizations which funded scholarship programs. Because of provisions in Montana’s Constitution that prevent direct or indirect funding of state/taxpayer money into religious institutions, this program was not deemed to be applicable to those attending religious schools. Three families who would have been eligible for the program sued the state of Montana on the grounds that they were being unlawfully discriminated against due to their religion and that their free exercise was being limited.

 

The case went to Montana’s Supreme Court where, in a 5-2 decision, the Court found that the entire program was unconstitutional because their constitution prohibited “any” aid to sectarian schools. Additionally, they found that even with the provisions and policies enacted by the state of Montana (specifically in Article X Section 6 of the Montana State Constitution), the program in its current state could not prevent direct or indirect aid to religious schools. 

 

            The families, being understandably dissatisfied with the state Supreme Court’s decision (the exact opposite of what they wanted), petitioned the Federal Supreme Court to take the case under review on the basis that barring religious schools/options from benefiting from student aid programs violated the clauses concerning religion (free exercise and establishment) in the first amendment and the equal protection clause in the fourteenth. 

            In a 5-4 decision, the Supreme Court decided in favor of the families, reversing the decision of the Montana Supreme Court by relying not on the premise that the State Court’s decision was wrong, but that the part of the state Constitution they used to justify the decision (Article X Section 6) was unconstitutional because it violates the free exercise clause. In his majority opinion, Chief Justice Roberts held that the wording of the law discriminated against those trying to freely exercise their religion by denying them publicly funded benefits solely based on their “religious character”. He argued that a state is not obligated to subsidize private education, but if it makes the decision to do so, it cannot disqualify religious institutions from benefiting from those subsidies. In his view, to not give aid to religiously associated schools is a financial incentive to act contrary to their right to free exercise. 

 

            In her dissent, Justice Ginsburg claimed that since the program was struck down by the Montana Supreme Court, there was no violation of free exercise; the program cannot infringe upon free exercise rights if the program does not exist anymore. Additionally, she did not feel that this program puts an undue burden on people attending religious schools, since nothing about the Montana SC’s decision forces those wanting to send their children to religious school to do anything different or act contrary to their religious beliefs.

 

In my opinion, while there is nothing directly inhibiting one from sending a child to a religious school, there are financial incentives not to, and that’s not necessarily discrimination based on religion. There are financial incentives to not send your kid to private school in the first place because, oftentimes, it’s absurdly expensive in the first place. And while the issue of the program’s intention being to protect and provide aid to low income families is extremely potent to me, I see no reason why that aid going to non religious institutions versus religious institutions is discriminatory in intent or practice. The government cannot provide financial aid to religious schools because they are religiously associated, and to do so would be a state sponsorship of religion, violating the establishment clause. This isn’t discrimination, even though it limits the options of those selecting which private school they want to attend. Additionally, the taxpayer cannot be expected to fund a religious institution which they do not believe in. 

 

In the article on the ACLU website, the author argues that private religious schools discriminate against minority applicants, whether they be of a different religious tradition, sexual orientation, gender identity, race, or if they are disabled, and the financial support of the institutions who do this would be state-sponsored discrimination. While I find this point to be extremely potent, I unfortunately see no application of this point to the question of whether or not the state discriminated against individuals because of their religion, which is the ultimate question the Court was trying to answer. I did, however, find another part of the article highly relevant to the decision. Heather Weaver, the author of this article, makes the argument that to mandate that the government provide aid to religious schools in turn aids the growth of religion in our culture by allowing for “indoctrination and training for future religious leaders and adherents”. In this vein, it appears to me that this issue is more about establishment than it is about free exercise. The government would then be allowing for and promoting the teaching of an ideologically single minded movement, and that is, to me, a clear state sponsorship and establishment of religion. It then frustrates me that the Court so narrowly analyzed this case, limiting themselves mostly to the question of whether this was a violation of free exercise or not. I struggled to find a case we’ve read in class so far that I found to be directly in support of my argument because I’m finding that the Court really disagrees a lot about what the establishment clause actually means. 

 

I wanted to talk both about the article and about the decision itself because I personally found myself quickly reacting to what I ideologically believe in before I was able to analyze the constitutionality of the decision. In looking at the case first, I was forced to grapple with both sides, and in doing so, the article I found that drew me to this case became more affecting.

 

Post by Jon R