Some Thoughts on the Espinoza Argument

Here’s a brief comment about Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case that the Court has under consideration. The Court heard oral argument in the case last week. It’s always tricky predicting the outcome of a case based on oral argument. But it seems pretty clear, at least to me, the the Court will ultimately rule in favor of the petitioners.

Followers of this blog know the facts of the case. (You do subscribe to Legal Spirits, right?) Briefly, the case concerns the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools, and canceled the scholarship program in its entirety. Petitioners argue that excluding them from otherwise available scholarship funds, simply because they planned to use the funds at a religiously affiliated school, violates the federal Free Exercise Clause.

Based on the Justices’ interventions, the Court seems likely to rule that, in these circumstances, barring parents from using public funds to pay tuition at religiously affiliated schools is unconstitutional. The Court’s cases point to that outcome. Zelman holds that the Establishment Clause isn’t violated when public money reaches religiously affiliated schools “wholly as a result” of parents’ “genuine and independent choice.” Trinity Lutheran Church holds that a state cannot deny a school access to public financial assistance simply because the school has a religious character. When you put these two cases together, it seems to me, the petitioners prevail.

That’s not to say their victory will be sweeping. For one thing, the Court seems likely to limit its holding to the facts of this case and avoid a ruling on the constitutionality of Blaine Amendments more generally. Moreover, the four progressive Justices signaled their strong disagreement with the petitioners’ Free Exercise argument.

Interestingly, two of the progressive Justices, Kagan and Breyer, who joined the Court in Trinity Lutheran Church, indicated that they see this case as quite different. Trinity Lutheran Church involved state funds specifically for playground refurbishment–a use unrelated to the religious character of the school in question. Espinoza, by contrast, involves unrestricted funds, which a school presumably could direct towards religious education. There is a case that suggests a state may refuse to allow its tax money to be spent for those purposes. But that case, Locke v. Davey, involved tax money for clergy training, not for general education at an accredited, religiously affiliated school–a distinction that will probably persuade the Court’s conservatives that Locke doesn’t apply here.

In short, oral argument suggests another of those familiar, narrow, 5 to 4, Religion Clause decisions. If that’s the case, Espinoza will be an important victory for school choice advocates–though not as sweeping as they might have hoped. Stay tuned.

Christianity and Liberalism before the Fall

Nathan Chapman (Georgia) has posted a very interesting new paper on SSRN, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause. His paper relates to a specific, historical example of federal funding for religious schools, but has implications for much broader Establishment Clause issues as well.

Chapman explains that, for much of the 19th Century, the federal government gave significant financial support to Christian missionary schools that educated Native Americans. Even more: virtually no one saw the financial support of these schools as an Establishment Clause problem. Evidently, Americans at the time–or at least the elites whose opinions mattered–did not perceive public support for instruction in Christian morality as a constitutional issue. That is so, Chapman argues, because elites at the time did not perceive basic Christian morality as sectarian and threatening in the way their counterparts do today. Borrowing from sociologist Charles Taylor, Chapman writes that “elite white Americans shared a ‘social imaginary’—or social paradigm—of ‘civilization’ that merged education, republicanism, and at least a modicum of Christianity.”

This is an extremely important insight for understanding American culture, and, therefore, American law. Historically, Americans have seen Christianity, especially its Protestant iteration, as consistent with liberalism and progress. Writing in the 1830s, Tocqueville observed that in the Old World, everyone understood that Christianity and liberty were rivals; but Americans had so completely run the two together in their minds that it was impossible for them to conceive of the one without the other. The conflict between Christianity and liberty that informs today’s culture wars simply did not exist for most of our history. As a consequence, the issues that preoccupy us today had little salience.

Of course, things are very different now. Maybe something went wrong, or maybe, as Patrick Deneen argues, the conflict was always there, waiting to hatch out. Anyhow, American elites today, especially legal elites, do not see Christianity and liberty as natural allies. This makes “translating” (Chapman’s term) the nineteenth-century practice into contemporary constitutional law rather tricky–even assuming translation is appropriate. The Establishment Clause was fashioned in a very different culture from our own, one that assumed a harmonious relationship between revelation and reason and that little relied on law to mediate conflicts between them. That is no longer the case, and the implications for our law have yet to be worked out.

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Roger Williams’s Baptists

The Baptist Movement has had an outsized influence on American church-and-state law. The movement’s American founder, Roger Williams, popularized the “wall of separation” metaphor that so greatly influenced Jefferson–and, through him, much of the Court’s Establishment Clause jurisprudence in the 20th Century. A new book from Baylor University Press, Retracing Baptists in Rhode Island: Identity, Formation, and History, explores the Baptist legacy in the American state where Williams made his home. The author is historian J. Stanley Lemons (Rhode Island College). The publisher’s description follows:

Rhode Island can legitimately claim to be the home of Baptists in America. The first three varieties of Baptists in the New World—General Six Principle, Particular, and Seventh Day—made their debut in this small colony. And it was in Rhode Island that the General Six Principle Baptists formed the first Baptist association; the Seventh Day Baptists organized the first national denomination of Baptists; the Regular Baptists founded the first Baptist college, Brown University; and the Warren Baptist Association led the fight for religious liberty in New England.

In Retracing Baptists in Rhode Island, historian J. Stanley Lemons follows the story of Baptists, from their founding in the colonial period to the present. Lemons considers the impact of industrialization, urbanization, and immigration upon Baptists as they negotiated their identities in an ever-changing American landscape. Rhode Island Baptists, regardless of variety, stood united on the question of temperance, hesitated on the abolition of slavery before the Civil War, and uniformly embraced revivalism, but they remained vexed and divided over denominational competition, the anti-Masonic movement, and the Dorr Rebellion.

Lemons also chronicles the relationship between Rhode Island Baptists and the broader Baptist world. Modernism and historical criticism finally brought the Baptist theological civil war to Rhode Island. How to interpret the Bible became increasingly pressing, even leading to the devolution of Brown’s identity as a Baptist institution. Since the 1940s, the number of Baptists in the state has declined, despite the number of Baptist denominations rising from four to twelve. At the same time, the number of independent Baptist churches has greatly increased while other churches have shed their Baptist identity completely to become nondenominational. Lemons asserts that tectonic shifts in Baptist identity will continue to create a new landscape out of the heritage and traditions first established by the original Baptists of Rhode Island.

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A New Collection of Essays on Disestablishment in the US

This forthcoming collection of essays from the University of Missouri Press, Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833, looks very interesting. The editors are law professor Carl Esbeck (University of Missouri School of Law) and historian Jonathan Den Hartog (Samford University). Here’s the description from the publisher’s website:

On May 10, 1776, the Second Continental Congress sitting in Philadelphia adopted a Resolution which set in motion a round of constitution making in the colonies, several of which soon declared themselves sovereign states and severed all remaining ties to the British Crown. In forming these written constitutions, the delegates to the state conventions were forced to address the issue of church-state relations. Each colony had unique and differing traditions of church-state relations rooted in the colony’s peoples, their country of origin, and religion.

This definitive volume, comprising twenty-one original essays by eminent historians and political scientists, is a comprehensive state-by-state account of disestablishment in the original thirteen states, as well as a look at similar events in the soon-to-be-admitted states of Vermont, Tennessee, and Kentucky. Also considered are disestablishment in Ohio (the first state admitted from the Northwest Territory), Louisiana and Missouri (the first states admitted from the Louisiana Purchase), and Florida (wrestled from Spain under U.S. pressure). The volume makes a unique scholarly contribution by recounting in detail the process of disestablishment in each of the colonies, as well as religion’s constitutional and legal place in the new states of the federal republic.

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