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Here are some important law-and-religion news stories from around the web:

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Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

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.

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web: