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Legal Spirits Episode 019: Oral Argument in the Blaine Amendments Case

Late last month, the Supreme Court heard oral argument in Espinoza v. Montana Dep’t of Revenue, a case on 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. Petitioners argue that barring them from scholarships, simply because they plan to use the money at religiously affiliated schools, violates the Free Exercise Clause of the federal constitution.

In this episode, we review the facts of Espinoza and analyze last month’s oral argument. What concerns did the Justices raise and how did counsel respond? We also speculate what the Justices’ questions suggest about the ultimate outcome of the case. Listen in!

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.

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Legal Spirits Episode 014: Requiring Clergy to Report Child Sex Abuse to State Authorities

Pope Francis Hears Confessions in Rome

In this episode, Center Co-Directors Mark Movsesian & Marc DeGirolami address state efforts to require clergy to report suspected child sex they learn about through confidential spiritual counseling–in traditional Christian terms, through Confession. Focusing on a recent California bill, SB 360, we explore what these efforts reveal about changes in American religion and predict whether such bills would violate the Free Exercise Clause. Listen in!

Around the Web

Around the Web

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

Around the Web

Around the Web

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

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:

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