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

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Some subversive thoughts on free exercise doctrine…

Occasioned by the Court’s decision last weekend in the South Bay United Pentecostal Church case, over at the Volokh Conspiracy. I note that neither the Chief Justice nor Justice Kavanaugh bothers to cite Employment Division v. Smith, the central case in the area, and wonder how much doctrine drives decisions:

For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are “comparable” and about how much deference to give elected officials during a public-health emergency. For what it’s worth, I think the Chief had the better of the argument. But the point I’d like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.

You can read the whole post here.

Movsesian Teaches Class at Moscow State University

I had a wonderful time this morning, teaching a (virtual!) class at Lomonosov Moscow State University on the COVID epidemic and religious exemptions under the US Constitution. Thanks to Professor Gayane Davidyan for inviting me and to her students for their wonderful, thoughtful questions. Lomonsov will post the class on YouTube soon, and I’ll link it when it appears.

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

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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.

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:

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