I wrote back in March about the oral arguments in the case Espinoza v. Montana Dept. of Revenue. The court has released its opinion, so I thought it was worth a review. Once again, it’s not so much the outcome of the case, but the opinions, that are of real interest to constitutionally-minded Americans.
Held: The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.
Espinoza v. Montana Dept. of Revenue – Opinion
The opinion of the court was not really a surprise. As I wrote back in March, it was quite obvious the argument was that the no-aid provision, what is called Rule 1, could not violate the First Amendment to the Constitution of the United States since it was not based on a law from Congress.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
U.S. Constitution, Amendment I
Since the language of the Montana Constitution mirrors the First Amendment, having its own Establishment and Free Exercise Clauses, the arguments in this case could have just as easily been made based on the Montana Constitution. However, since the Supreme Court of Montana had already set aside the entire tax credit law, what were the plaintiffs to do? As I said in March, a case could be made the that state’s Blaine Amendment (prohibiting state funds from supporting religious activities or organizations, either directly or indirectly), was a violation of the 14th Amendment’s Privileges and Immunities Clause. At that point what I did find interesting was the concurrence of Justice Thomas.
Thomas Concurrence
The Court correctly concludes that Montana’s no-aid provision expressly discriminates against religion in violation of the Free Exercise Clause. And it properly provides relief to Montana religious schools and the petitioners who wish to use Montana’s scholarship program to send their children to such schools. I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
Again, this law cannot violate the First Amendment to the U.S. Constitution since Congress did not make a law, but no one is perfect. And, since the Montana Constitution has the same language except for restricting the state rather than Congress, Justice Thomas’ arguments apply just as well to Montana’s religious freedom clauses.
This case involves the Free Exercise Clause, not the Establishment Clause. But as in all cases involving a state actor, the modern understanding of the Establishment Clause is a “brooding omnipresence,” … ever ready to be used to justify the government’s infringement on religious freedom. Under the modern, but erroneous, view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion.
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
Justice Thomas states that while the case was brought based on the Free Exercise Clause, the real problem is with how the court has treated the Establishment Clause. He goes on to explain:
As this Court stated in its first case applying the Establishment Clause to the States, the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947); see also post, at 3 (BREYER, J., dissenting). This “equality principle,” the theory goes, prohibits the government from expressing any preference for religion—or even permitting any signs of religion in the governmental realm. Thus, when a plaintiff brings a free exercise claim, the government may defend its law, as Montana did here, on the ground that the law’s restrictions are required to prevent it from “establishing” religion.
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
Notice something important: The court did not apply the First Amendment to the states until the Everson v. Board of Ed. case in 1947. This is when the court suddenly decided that not only was Congress prohibited from establishing a religion, but that no government is allowed to permit any sign of religion. This grossly errant interpretation has been used ever since to quash any exercise of religion on public land or in a public building, to prevent even the appearance of the establishment of a religion. In effect, this is the government establishing secularism (the belief that only this world matters), as the only religion (“Any system of faith and worship”) acceptable in public places.
This understanding of the Establishment Clause is unmoored from the original meaning of the First Amendment. As I have explained in previous cases, at the founding, the Clause served only to “protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government.”
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
This is what happens when the courts elevate their own opinions above the actual language of the law. They invent novel interpretations to meet their agenda, they twist the plain intent of the Constitution, and then use these opinions to push their agenda forward. Even worse, by elevating their opinions above the law, courts have routinely used them to infringe on the rights of others.
The Court has also repeatedly stated that a government has a compelling interest in avoiding an Establishment Clause violation altogether, which “may justify” abridging other First Amendment freedoms.
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
That’s right, we’ve seen plenty of cases where governments have used the courts’ opinion about the Establishment Clause to abridge the rights of citizens. What a mockery, to use the First Amendment to infringe on the rights that are supposed to be protected by it!
The concern with avoiding endorsement has nevertheless been used to prohibit voluntary practices that potentially implicate free exercise rights, with courts and governments going so far as to make the “remarkable” suggestion “that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith.”
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
One of the cases Justice Thomas is referring to is Santa Fe Independent School Dist. v. Doe, where the court opined that a teacher’s voluntary decision to begin football games with a prayer violated the Establishment Clause. In an effort to protect people’s freedom of religion the court infringed on a person’s freedom of religion.
Conclusion
Ultimately, this decision brings justice to the families who brought suit. However, the court’s dependence on stare decisis leads even those who support the opinion to do so in a twisted manner. This has become so ingrained that even when Justice Thomas points out that it was not the original intent of the First Amendment to be applied to the states, he does just that in his concurrence. I did not spend time on the Alito concurrence or Justices Ginsburg, Breyer, and Sotomayor’s dissents as they fell pretty much along the lines I covered in the article on the oral arguments. Instead, I close with what I hope you will see is why I spend so much time on details and definitions and why I think it’s dangerous to get to the correct conclusion using the wrong method.
The Court’s current understanding of the Establishment Clause actually thwarts, rather than promotes, equal treatment of religion. Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level. The Court’s distorted view of the Establishment Clause, however, removes the entire subject of religion from the realm of permissible governmental activity, instead mandating strict separation.
Espinoza v. Montana Dept. of Revenue – Thomas Concurrence
As Justice Thomas said, the court’s understanding of the Establishment Clause thwarts its primary purpose. Rather than allowing religion to be freely exercised, and allowing the states to determine the role of religion in public life for themselves, the courts have placed the public discussion of religion off limits, except where they have made exceptions. So while I cheer for the Espinoza and other families in the suit, I fear for the future of our county as it’s still led by people more interested in preserving their own opinions instead of supporting the Constitution like they swore or affirmed to do when they took office.
