Our reader Laura Chapman read the Supreme Court decision in the Espinoza case, both the majority decision and the dissents. The majority decision said that if a state offers a scholarship program for private schools, it must include religious schools. The dissenters, Chapman noted, pointed out that the Montana Supreme Court had already invalidated the private scholarship program. So the case was already moot because Montana no longer has a scholarship program for private schools! The Espinoza family will not get $150 (the amount that used to be paid to families that sought help in paying private school tuition) because Montana no longer offers scholarships to private schools, and thus will not be affected by today’s decision!
She wrote:
I downloaded the text of ESPINOZA ET AL. v. MONTANA DEPARTMENT OF REVENUE ET AL and read the dissents. Here are a few gems, all noting that the scholarship in question had already been made invalid by Montana’s Supreme Court !!
BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined as to Part I.
I shall assume, for purposes of this opinion, that petitioners’ free exercise claim survived the Montana Supreme Court’s wholesale invalidation of the tax credit program. (This is a feature in all of the dissents. Essentially, the dissenters claim there is no case because the program was made vaporware by the Montana Supreme Court.)
Breyer then begins an extended discussion of “entanglements” of the Free Exercise Clause and the Establishment Clause: and concludes that “The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent.
Well, that is the summary, but it is followed by at least 6000 words, as if prepared to show his colleagues that he had considered a lot of precedents that had no direct bearing on the case, these dating back to Madison and Jefferson’s Wall of Separation in Antebellum Virginia, along with hypothetical questions about state funding for charter schools (with a 2003 citation).
GINSBURG, J., filed a dissenting opinion, in which KAGAN, J., joined.
Recall that the Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.
Put somewhat differently, petitioners argue that the Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana treats them in the wake of the state court’s decision. Accordingly, the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise.
SOTOMAYOR, J., filed a dissenting opinion.
The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit. The threshold problem, however, is that such tax benefits no longer exist for anyone in the State. The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the as-applied challenge petitioners raise here.
Indeed, nothing required the state court to uphold the program or the state legislature to maintain it. The Court nevertheless reframes the case and appears to ask whether a longstanding Montana constitutional provision is facially invalid under the Free Exercise Clause, even though petitioners disavowed bringing such a claim. But by resolving a constitutional question not presented, the Court fails to heed Article III principles older than the Religion Clause it expounds.
Laura Chapman added: I am not a lawyer, but I cannot understand why this case even got on the docket of the US. Supreme Court. It was settled in the Montana Supreme Court, made invalid, struck entirely.
Earlier this year, before the Espinosa decision, either Sotomayer of Kagan sounded an alarm about the cases SCOTUS decided to hear.
and how frustrating for them to see the strategies being played out, but with so little power to change the outcomes
You are better than I, Laura. I made it to page 40-something of the decision and didn’t have the will to continue! I did, unlike our Republican Senators and Congresspersons and, evidently, our Attorney General, read the Mueller Report in its entirety, including the parts that described 10 instances of obstruction of justice on the part of Donald Trump, explained that it was up to Congress and the Senate to do something about that, and stated that the report did NOT exonerate the President.
Re: Espinoza. I’m just pleased that Bob Shepherd’s Ayahuasca School for Little Cosmic Voyagers and Akashic Warriors will not be excluded from receiving Flor-uh-duh state “scholarships.”
The Flor-uh-duh-ians were very excited when they learned that they could keep the Nativity Scene at the State House until they found out that this meant that the Church of Satan also got to have its statehouse display.
INT. FRENCH KITCHEN-DAY, 2026
JULES: So, you are really going to go through with it. You are moving to the United States.
AIMEE: Yes. Martin’s job. It’s a lot of money.
JULES: But what about the kids?
AIMEE: The kids?
JULES: You know that they teach in the schools there that the universe was created 6,000 years ago, that Cain and Abel rode around on dinosaurs, that it was just super for Lot to marry his daughters.
AIMEE: I know. I know.
JULES: And that witches should be sought out and stoned to death.
AIMEE: Martin’s mother isn’t going with us.
JULES: Seriously.
AIMEE: I’ve thought of that. I’m going to be enrolling them in Bob Shepherd’s Ayahuasca School for Little Cosmic Voyagers.
Bob, In fact, I did not read the main arguments as Diane assumed. I only read the dissents, and got the gist of that 6000 word digression. After reading the dissents I decided the case really was closed.
I have been thinking of all my old haunts in Florida, both coasts especially. As a native, I understand your concernsa about enrollments in Bob Shepherd’s Ayahuasca School for Little Cosmic Voyagers.
I hope you are not tempted to do the beaches and bars.
In the mangrove swamps where the python romps there is … a school for…?
Take care.
Thanks, Laura. I always appreciate, so much, your intrepid research and insightful analyses! And no, I am not doing beaches and bars, as I have no death wish, unlike so many of my fellow Flor-uh-duians.
We just had, here, our daily mid-summer, late afternoon, 20-minute monsoon, followed by the springing up like popcorn of gazillions of teenie, tiny frogs, about a quarter of an inch long. Then, the heat came back, and a blanket of mosquitoes filled the air, one of whom flew by carrying a cow. I could hear them plotting, abuzz, about spreading West Nile Virus, Eastern Equine Encephalitis, Dengue Fever, Chikungunya Virus, and Zika. I said to them, in my best Big Bird voice, “Look. Enough already. The year 2020 has already been brought to us by the letters W, T, and F.” But, you know, the skeeters and the viruses are quite smug, these days, knowing that Trump and Trump Mini Me Gov. DeSatan will just deny that they exist. On a positive note, the not-at-all-racist guy who has for years been flying the world’s second largest Confederate flag by Interstate 75 has decided that it’s best to take it down given the current unrest. I guess that replacing egregious symbols of hate can be expensive and he sensibly didn’t want to take the risk.
Little-known fact: The Flor-uh-duh state bird is actually not one of the gaudy ones commonly associated with the state, such as the White Ibis, the Flamingo, the Brown Pelican, or the Roseate Spoonbill but, oddly enough, the Northern Mockingbird. This was chosen, of course, because of the tendency of Northerners to mock Floridians and, especially, Florida man, which is understandable and even a point of some pride. Our resident herd of Scientologists, in Clearwater, is thriving. The Sandhill Cranes, being sensible, have left Flor-uh-duh for the summer and headed to Wisconsin and other cooler climes. Like the Scientologists, escaped pet exotics are flourishing in the wild here–parakeets, pythons, boas. However, because this is Florida, the whole state is, well, pretty wild, but Diane doesn’t allow such talk on her blog.
Looking forward, at the moment, to a glorious, apocalyptic sunset courtesy of the Saharan dust cloud. Send me your email and I’ll send you a pic of me wrestling one of these mosquitoes into submission.
BTW, your swamps/romps rhyme is quite vivid and catchy! LOVE IT!!! Florida state song?
BTW 2, Laura. I’ve been meaning to ask. You wouldn’t by any chance, would you, be related to my hero John Chapman, better known as Johnny Appleseed? I was delighted to learn from Michael Pollan’s The Botany of Desire that what Chapman was actually doing, back then, was planting orchards around the country for the milling of hard cider, in the selling of which he did a thriving business. In those days when alcohol was hard to come by unless you happened to be in Tennessee or Kentucky or West Virginia with ready access to a still. I’ve long thought that if he’s going to write so beautifully about botany, Michael should spell his last name Pollen.
Bob, One of my undergraduate professors associated my name with Johnny Appleseed and the work of teachers, planting seeds. Not a word about the purpose of all the orchards
Awww. That’s sweet. I do hope some of those students become drunk with enthusiasm. From enthous, possessed by a god. One of the best of all feelings is being carried away with enthusiasm for something new one is learning. Gimme more of that!
Reblogged this on David R. Taylor-Thoughts on Education.
I am always impressed with Rebecca Klein’s journalism on public education:
https://www.huffpost.com/entry/supreme-court-montana-espinoza-religious-schools-constitution_n_5eeccb52c5b634145cc1309b
Big celebrations throughout the ed reform echo chamber at this decision. They now envision religious charter schools.
The Trump Administration delivered a proclamation declaring their belief that students in private religious schools have better “values” than students in the public schools.
Still nothing for public school students out of ed reform this year. I’m confident that after they secure additional funding for vouchers they’ll get around to providing some coronavirus assistance for the unfashionable public schools 90% of students attend.