Archives for category: Separation of church and state

Nancy Bailey writes here about Secretary of Education Betsy DeVos’ contempt for the time-honored tradition of separation of church and state. She has made clear her strong preference for religious schools and her low opinion of public schools. We have never in our history had a Secretary of Education (or before the Education Department was created in 1980, a Commissioner of Education) who was so flagrantly hostile to public schools. Reagan’s second Secretary of Education Bill Bennett was a cheerleader for “choice,” but in the early 1980s, he didn’t have the wind behind his back nor did he have Betsy’s billions to advance the cause.

The United States is a very diverse nation, where people are associated with scores of different religions or none at all. The Founders wrote the First Amendment to prohibit the establishment of any official religion and to protect the free exercise of religion. They knew the dangers of state-sponsored religion. In our time, rightwing libertarians and anti-government ideologues are using their political clout to support government funding for religious schools.

It’s worth noting that every state referendum on vouchers for religious schools has gone down to a decisive defeat, most recently in Arizona, where 65% said no to vouchers.

DeVos has taken advantage of the pandemic to divert billions of dollars to private and religious schools, usually at the expense of public schools, which enroll the students with the greatest needs.

One good reason to vote for Joe Biden is to send DeVos home to Michigan.

He can’t possibly appoint anyone worse than DeVos.

Tom Ultican, retired teacher of physics and advanced mathematics in California, writes frequently about school “reform,” aka school choice, as a substitute for adequate funding.

In this post, he explains the fraud of school choice and why billionaires and rightwing zealots promote it. To read it in full,as well as his kinks, open the full post.

He begins:

Birthed in the bowels of the 1950’s segregationist south, school choice has never been about improving education. It is about white supremacy, profiting off taxpayers, cutting taxes, selling market based solutions and financing religion. School choice ideology has a long dark history of dealing significant harm to public education.

Market Based Ideology

Milton Friedman first recommended school vouchers in a 1955 essay. In 2006, he was asked by a conservative group of legislators what he envisioned back then. PRWatch reports that he said, “It had nothing whatsoever to do with helping ‘indigent’ children; no, he explained to thunderous applause, vouchers were all about ‘abolishing the public school system.”’ [Emphasis added]

Market based ideologues are convinced that business is the superior model for school management. Starting with the infamous Regan era polemic, “A Nation at Risk,” the claim that “private business management is superior” has been a consistent theory of education reform promoted by corporate leaders like IBM’s Louis Gerstner, Microsoft’s Bill Gates, Wal-Mart’s Walton family, Bloomberg LP’s founder, Michael Bloomberg and SunAmerica’s Eli Broad. It is a central tenet of both neoliberal and libertarian philosophy.

Charles Koch and his late brother David have spent lavishly promoting their libertarian beliefs. Inspired by Friedman’s doyen, Austrian Economist Friedrich Hayek, the brothers agreed that public education must be abolished.

To this and other ends like defeating climate change legislation, the Kochs created the American Legislative Exchange Council (ALEC). This lobbying organization has contributing members from throughout corporate America. ALEC writes model legislation and financially supports state politicians who promote their libertarian principles.

Like the Walton family and Betsy DeVos, Charles Koch promotes private school vouchers.

Katherine Stewart, a scholar of rightwing evangelicals, writes in The New Republic about Betsy DeVos’s brazen transfer of public funds to private schools during the pandemic. Stewart is the author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism. Stewart surveys the generous distribution of federal funds to private and religious schools, far more generous than the federal money for public schools. As you have read in numerous posts and in a study by the Network for Public Education, charter schools, which enroll about 6% of American students collected $1 billion to $2 billion from the Paycheck Protection Program. Stewart shows that private and religious schools collected even more. This was no accident. It is part of DeVos’s long-term goal of destroying public education.

She writes:


How much more does the Trump administration value the children of elite private and religious schools than the children who attend public schools? We can answer the question with some hard numbers. Public school students merit something like $266 apiece in extra pandemic-related funding. Kids attending the right private schools are worth $5,000 each or possibly much more.

That $266, by the way, is an overestimate. It’s what you get when you take the $13.5 billion allocated for K-12 education in the Coronavirus Aid, Relief, and Economic Security (CARES) Act of this past March and divide it up among the nation’s 50.8 million public school students. Secretary of Education Betsy DeVos made sure to siphon some of that money for private and religious schools, which she has long favored, although she did receive pushback: On July 22, the National Association for the Advancement of Colored People (NAACP), joined by school districts in California, Connecticut, and Colorado, sued DeVos and her department over the policy, calling it “as immoral as it is illegal…”

The $5,000 per student figure for some private schools cited above comes out of the Paycheck Protection Program, which was established by the CARES Act and implemented by the Small Business Administration. Public schools aren’t eligible for PPP money, which is technically a loan but will be forgiven if the funds are used for expenses that meet certain criteria. Although the SBA does not disclose exact loan amounts, it does make public the recipients receiving more than $150,000 and identifies amounts within broad ranges.

With this information, we know that Buckingham Browne & Nichols School, a private pre-K–12 school in Cambridge, Massachusetts, with a $75 million endowment and a student body of around 1,013, where annual tuition runs up to $52,300, collected a loan of between $5 and $10 million—or roughly $5,000 to $10,000 per student. (The school did not respond to multiple requests to confirm the exact amount.)…

Georgetown Preparatory School, which serves about 500 students on 93 acres in North Bethesda, Maryland, and whose notable alumni include Supreme Court Justices Neil Gorsuch and Brett Kavanaugh, collected a $2.7 million PPP loan, which works out to $5,440 per student. According to an analysis by Americans United for Separation of Church and State, the total amount of large PPP loans given to private and religious schools was at least $2.67 billion and as much as $6.47 billion—or about half as much as the total for all schools under the CARES Act, even though private and religious schools educate only 10 percent of the nation’s schoolchildren.

And these schools could potentially receive even more. DeVos stuffed a provision in the CARES Act for “equitable services” that may send another $1.35 billion, which might otherwise have gone to public schools, to private schools. She’s also giving them a cut of the $3 billion Governor’s Emergency Education Relief Fund…

The religious school beneficiaries remain free, as they always have been, of the anti-discrimination laws that apply to public schools. For example, Cathedral High School in Indiana took in a PPP loan of between $2 and $5 million ($1,700 to $4,200 per student), but it fired a teacher for having a same-sex spouse. The Foundation Academy in Winter Garden, Florida, whose 2016-17 handbook informs school families that the husband “has the God-given responsibility to provide for, to protect, and to lead his family” while “a wife is to submit herself graciously” and which groups “homosexuality, lesbianism bisexuality” along with “bestiality” as grounds for expulsion, took in between $1 and $2 million in PPP money. Americans United estimates that at least 4,006 religious schools, or about 70 percent of private school recipients, received large PPP loans.

There is no indication, however, that the private schools receiving PPP money are under anything like the pressure the Trump administration is applying to public schools to fully reopen in the coming school year. When Fairfax County public schools offered parents a choice between in-person and remote learning, DeVos denounced the move in vehement terms. (The district has since announced that the 2020-21 school year will be fully remote.) But the Fairmont Preparatory Academy of Anaheim, California, which took in a minimum of $5 million, or $7,700 per student in PPP money, is offering families the same choice, so far with no criticism from the Department of Education…

Betsy DeVos did not take over the Department of Education in order to improve public education as we know it but to degrade it. She came to office with an ideology as simple as it is destructive: Government should get out of the business of education, she has consistently maintained. DeVos brought with her two powerful interest groups. On the one hand are the privatizers, on the other are the proselytizers, and both paws are reaching for the same pot of taxpayer money.

In a May radio interview, Cardinal Timothy Dolan, the Catholic archbishop of New York, asked DeVos whether she was trying to “utilize this particular crisis to ensure that justice is finally done.” “Yes, absolutely,” she replied. Alluding to her longstanding efforts to divert taxpayer money to sectarian schools, DeVos said, “For more than three decades that has been something that I’m passionate about.”

The public has consistently underestimated the extremity of the agenda against public schooling. Listen more carefully to what DeVos and her backers are actually saying. For decades, Christian nationalist leaders have denounced public schools as hotbeds of secularism. For just as long, reactionary economic ideologues have condemned them as breeding grounds for socialism. DeVos’s boss simply repeats the message at a louder volume: During his Fourth of July speech at Mount Rushmore, Donald Trump said public schools are teaching kids to “hate our country” with a “far-left fascism that demands absolute allegiance.” They all understand at some level that a robust public school system is one of the pillars of a modern, progressive, pluralistic, and democratic society. That’s why they want to destroy it.

Baptistnews.com reported this important piece of information. Private schools have scored billions from the Paycheck Protection Program. This represents a massive transfer of public funding to private and religious schools. Of course, this fulfills a major policy goal of the Trump administration.

Americans United for Separation of Church and State reviewed federal records and calculated that private schools collected billions of dollars from the Paycheck Protection Program, which was enacted to save small businesses at risk of going bankrupt.

Americans United for Separation of Church and State has long considered public funding for religious schools, which comprise 67% of all American private schools, to be both bad policy and contrary to Constitutional intent. Americans United’s analysis of the data released by the Small Business Administration on PPP loans of $150,000 or greater reveals that Congress has already given private religious and secular schools funding totaling between $2.67 billion and $6.47 billion. PPP funding comes in the form of forgivable loans, which were intended to provide financial assistance to small businesses and nonprofits to recover from the pandemic. As long as the private schools meet certain criteria, like using the loan for payroll and operational expenses, the loans will be forgiven by the government in their entirety, essentially turning the loans into grants.

Two of the nation’s leading education experts ponder the implications of the U.S. Supreme Court’s Espinoza decision. Bruce D. Baker of Rutgers University is a school finance expert. Preston C. Green III of the University of Connecticut specializes in education law.

I confess that I was relieved that the Espinoza decision was limited in scope. I was afraid that the religious zealots on the Court might sweep away all barriers to public funding of religious schools. It did not. But Baker and Green persuade me that I was wrong, that Espinoza was another step towards breaking down the Wall of Separation between church and state and should be viewed with alarm.

I urge you to read their analysis of where we are going, how it involves not only vouchers but charter schools, and what states must do to protect public schools.

The US Supreme Court ruled today that teachers in religious schools are not protected by federal anti-discrimination law. Please note that Justice Alita says that the central mission of religious schools is to teach the faith, which is why so many object to public funding of religious schools. If religious schools take public money, are they still exempt from public laws that cover public schools?

David Savage wrote for the Los Angeles Times:

WASHINGTON — The Supreme Court on Wednesday restricted teachers who work at church-run schools from filing discrimination claims against their employers, ruling that the Constitution’s protection for religious liberty exempts church schools from state and federal anti-discrimination laws.

The justices, by a 7-2 vote, ruled that because two elementary school teachers at Catholic schools in Los Angeles County helped carry out the mission of teaching faith as part of their jobs, the schools are free to hire and fire them without concern for antidiscrimination laws.

The decision effectively closes the courthouse door to tens of thousands of teachers nationwide in religious and parochial schools who encounter workplace discrimination based on their gender, age, disability or sexual orientation that would otherwise be impermissible. It is also written broadly enough that it could include many other types of workers at the schools, such as counselors, nurses, coaches and office workers.

In the past, the Supreme Court has recognized an implied “ministerial exemption” that shields churches, synagogues or other religious bodies from being sued by priests, pastors and other ministers. The issue in the pair of cases from Southern California was whether that exemption extended more broadly to teachers in a church-run school whose primary duty was not necessarily religious instruction.

“The 1st Amendment protects the right of religious institutions to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” Justice Samuel A. Alito Jr. wrote for the majority.

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” he continued. “Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the 1st Amendment does not tolerate.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Kristen Biel was a fifth-grade teacher at St. James School in Torrance whose teaching contract was canceled shortly after she told the principal she had been diagnosed with breast cancer. She later sued under the Americans with Disabilities Act, which protects employees from discrimination based solely on a disease like cancer. She died last year, but her husband, Darryl Biel, has maintained the suit.

Agnes Morrissey-Berru had taught fifth grade at Our Lady of Guadalupe in Hermosa Beach for decades when the principal suggested she may want to retire. She refused, and her teaching contract was not renewed. She then sued, alleging age discrimination.

Lawyers for the Catholic Archdiocese said the suits should be dismissed, citing the ministerial exception recognized by the high court. Two federal district judges agreed, but the 9th Circuit Court cleared both suits to proceed, ruling that neither teacher was a religious leader at school.

In dissent, Sotomayor called the court’s ruling “simplistic” because it allows a church to decide which of its employees are central to its religious mission and therefore not covered by antidiscrimination laws.

“That stretches the law and logic past their breaking points,” she said. “The court’s conclusion portends grave consequences.
Thousands of Catholic teachers may lose employment-law protections because of today’s outcome. Other sources tally over a hundred thousand secular teachers whose rights are at risk. And that says nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.”

Trump has made clear that he wants federal funds to flow to private and religious schools if any new aid is approved to help public schools reopen. DeVos and Trump will use any opportunity to push federal money to religious schools.

The Supreme Court’s decision in the Espinoza case, which ruled that any state that aided private schools had to provide aid to religious schools, has encouraged Trump and DeVos to push harder for federal funding of religious schools.

Thus far, the Democrat-controlled Appropriations Committee in the House has blocked all such requests by DeVos and Trump.

President Donald Trump will ask for a “one-time, emergency appropriation” for a new grant proposal, according to an outline of the plan obtained by McClatchy. The grants would be provided to states to distribute to nonprofit institutions that disburse scholarships to qualified students who want to attend non-public schools.

“I have never heard a single, compelling persuasive reason as to why somebody is against Education Freedom Scholarships, opportunity scholarships, school choice, charter schools. And the reason is this: we’re trying to give these kids just another opportunity and provide their parents with another option,” Kellyanne Conway, counselor to the president, told McClatchy.

The White House is seeking to have 10% of the amount that Congress approves for state and local educational agencies set aside for the grants. Trump will also seek approval of $5 billion in federal tax credits for businesses and individuals who donate to the scholarship programs.

The Trump administration has been promoting school choice initiatives for weeks as a way to provide educational opportunities to children in underserved communities and get money to help financially struggling private and Catholic schools before the new school year.

Read more here: https://www.mcclatchydc.com/news/politics-government/white-house/article243956302.html#storylink=cpy

Leaders of Reform Judaism criticized the Supreme Court decision to allow public funding of religious schools.

MEDIA CONTACT:
Sarah Garfinkel, West End Strategy Team
sgarfinkel@westendstrategy.com; Cell: 202-765-4290

Reform Jewish Movement Denounces Supreme Court Decision Allowing Government Funding of Religious Education

WASHINGTON – In response to the Supreme Court decision in Espinoza v. Montana Department of Revenue permitting state funding of private religious education, Rabbi Jonah Dov Pesner, director of the Religious Action Center of Reform Judaism, released the following statement on behalf of the Union for Reform Judaism, the Central Conference on American Rabbis and the wider Reform Movement institutions:

“We are deeply disappointed in the Supreme Court’s decision to invalidate Montana’s prohibition on state funding of private religious schools. We joined an amicus brief in support of Montana’s prohibition on financial support for religious education, because not only do tuition tax credits and other types of school vouchers divert desperately needed funding from public schools, these programs also violate separation of church and state when such funding is directed towards religious schools.

“Government funding to religious schools requires taxpayers to support religious institutions and beliefs that may violate their own, something the First Amendment was intended to avoid. Conversely, such government funding is bad for religion, for with government funding comes government rules, regulations, monitoring and interference. Religious education must always be the responsibility of the family and faith community, not the government.

“Rather than implementing private school voucher programs, the government should invest in public schools to make them safer, stronger, and more equitable. All of America’s children deserve a first-rate education.”

###

The Religious Action Center of Reform Judaism is the Washington office of the Union for Reform Judaism, whose nearly 850 congregations across North America encompass 1.5 million Reform Jews, and the Central Conference of American Rabbis, whose membership includes more than 2,000 Reform rabbis. Visit http://www.RAC.org for more.

Jan Resseger writes here with her usual lucidity about the Espinoza decision, which cut another hole in Thomas Jefferson’s “wall of separation between church and state,” a long-sought goal of the radical right. To anyone who refused to vote for Hillary in 2016, this decision is yours.

Please open to read it all, along with the links.

She begins:

On Tuesday, the U.S. Supreme Court released a long awaited decision in the church-state separation case of Espinoza v. Montana Department of Revenue. Chief Justice John Roberts wrote the majority opinion in the 5-4 decision. NY Times Supreme Court reporter, Adam Liptak quotes Roberts’ argument: “‘A state need not subsidize private education…. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.’ In dissent, Justice Sonia Sotomayor said the majority opinion ‘weakens this country’s longstanding commitment to a separation of church and state beneficial to both.’”

Although historically, religious liberty and church-state cases have been decided on the basis of the First Amendment’s “establishment clause,” this week’s decision rests on what’s known as the “free exercise clause.”

In a particularly lucid explication of this week’s decision, VOX’s Ian Millhiser explains: “The First Amendment places two limits on the government’s interaction with religion: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’… Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful—a dual obligation that courts have often found difficult to reconcile.”

Millhiser continues, explaining that Roberts’ decision rests on a 2017 precedent: “As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer… which held that the state of Missouri could not exclude religious organizations from a state program that offered ‘grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.’… According to Roberts, Trinity Lutheran reached the ‘unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.’ Just as the Missouri recycled tires program ‘discriminated against the Church simply because of what it is—a church,’ the Montana constitution ‘bars religious schools from public benefits solely because of the religious character of the schools.’”

The current Espinoza case was brought by several mothers whose children are enrolled in the Stillwater Christian School in Kalispell, Montana. Plaintiffs were represented by—and clearly recruited by—the Institute for Justice, a far-right, libertarian law firm which, for years, has set out to challenge First Amendment protection of the separation of religion from government. In this case, the Montana Supreme Court had already partially shut down the tuition tax credit program at issue in the case. Writing for Education Dive, Linda Jacobson reports that the program will now continue: “In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision.”

The Espinoza decision will affect the 37 states with what are known as Blaine Amendments in their state constitutions. Jacobson explains: “The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful.”

Why are supporters of public education so concerned about the implications of this case? In the first place, voucher programs drain needed tax dollars out of public schools. In Ohio, for example, a state that already permits public funds to flow to religious schools, EdChoice vouchers extract $4,650 for each elementary and middle school voucher and $6,000 for each high school voucher—right from the local public school district’s budget.

Another serious problem with vouchers is that the law protects students’ rights in public schools, but the same laws do not protect students enrolled in private schools. Writing for Slate, Mark Joseph Stern worries that now, after Espinoza: “Taxpayers in most of the country will soon start finding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience. For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest. But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs?”

Kevin Welner, a lawyer and specialist in education policy, wrote about the Espinoza decision at Valerie Strauss’s Answer Sheet in the Washington Post:

On Tuesday, the U.S. Supreme Court issued a decision that was once unthinkable. It required the state of Montana to set aside its own constitution’s ban on direct or indirect funding of religious private schools: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (p. 20 of the slip opinion).

The principles underlying the U.S. Constitution’s establishment clause, while not yet dead, are in exceedingly poor health this morning.

To be fair, the wall of separation between church and state never really existed. But for a while, there was a fairly high fence. It protected religious institutions from entanglements with the government, and vice versa. In countries without such separation, state institutions such as schools can become instruments of the state’s preferred religion — as the writers of the U.S. Constitutions observed in England and other European countries.

England is, however, an instructive case of what can happen over time. The entanglement between the two institutions initially bolsters the church, but genuine religious beliefs are harder to impose than is nominal adherence to those beliefs. So Americans became more religious over time as they voluntarily brought church attendance and religious teachings into their lives. But the English became less so, even while maintaining state financial assistance for church schools to this day.

In the United States, that high fence of separation between church and state existed from approximately the mid-1940s through the mid-1980s. It transformed our essentially Protestant public schools into secular institutions attended by a cross-section of the population, including strongly religious families. That seeming contradiction of religious upbringing plus nonreligious schooling was, in fact, entirely consistent with Thomas Jefferson’s reasons for embracing a “wall of separation” to avoid government involvement that could corrupt free religious practice, while also protecting the government against church influence.

Churches and related religious institutions benefit from this arrangement in three key ways. First, the government stays away from the internal affairs of churches. While this can lead to fraud and abuse, it also protects religious liberty. Second, the government grants churches freedoms denied to other institutions, including the freedom to discriminate. Third, because “the power to tax involves the power to destroy,” churches are given an extraordinary number of tax benefits. This was outlined in an analysis published in The Washington Post in 2013:

When people donate to religious groups, it’s tax-deductible. Churches don’t pay property taxes on their land or buildings. When they buy stuff, they don’t pay sales taxes. When they sell stuff at a profit, they don’t pay capital gains tax. If they spend less than they take in, they don’t pay corporate income taxes. Priests, ministers, rabbis and the like get “parsonage exemptions” that let them deduct mortgage payments, rent and other living expenses when they’re doing their income taxes. They also are the only group allowed to opt out of Social Security taxes (and benefits).

As part of this exceedingly hands-off approach, church-affiliated institutions were not, in the past, eligible to participate in some government programs. For instance, while private religious colleges could receive aid to help students fund their education, the court prohibited state aid directly to religious K-12 schools.
Today’s Supreme Court does not share Jefferson’s vision. In fact, the court has been sawing away at the high fence for decades. In cases posing challenges to state funding of religious institutions, the court has steadily permitted greater and greater financial entanglements.

In fact, in a case three years ago called Trinity Lutheran v. Comer, the court pronounced that states can, under some circumstances, be constitutionally required to fund religious institutions, pursuant to the free-exercise clause of the First Amendment.

Will the Supreme Court’s Trinity decision lead to the spread of school voucher programs?
When providing a public benefit (in that case, state grants for playground resurfacing), the state cannot make religious status an impediment to receipt of that benefit — at least where the benefit is not directly supporting religious practice.

Even from this conservative court, the Trinity Lutheran decision was a bit of a surprise. Earlier, in 2004, in a case called Locke v. Davey in which the majority opinion was written by the very conservative Chief Justice William H. Rehnquist, the court found no constitutional impediment to a state prohibiting a college scholarship from being used directly to support religious practice, by excluding students pursuing a “degree in devotional theology.”

With those key precedents, the court today decided a case involving a neo-voucher law that had been adopted in Montana. The law used tax credits to create a funding mechanism for small vouchers (about $500 each) to help pay for private school tuition. Because the Montana state constitution includes a “no aid” clause that prohibits direct or indirect state support for church-controlled schools, the Montana Department of Revenue only allowed the law to go forward on the condition that religious schools be excluded.

A lawsuit called Espinoza v. Montana Department of Revenue challenged that ruling and made its way to that state’s Supreme Court. That court struck down the entire neo-voucher law, thus avoiding the possibility of anti-religious discrimination raised in Trinity Lutheran v. Comer, while also avoiding a violation of the Montana constitution. That should have ended the matter, but the U.S. Supreme Court decided to weigh in.

Before discussing the court’s decision in the Espinoza case, it’s important to step back and consider the unusual ideological extremity of the current Supreme Court. The court was designed as a moderating institution. One fundamental reason for this is that the more-extreme views of any single justice typically will have only a minimal impact on the court’s final decision. The court will only take the law as far as the “fifth vote” or “swing vote.” If four justices wanted, for instance, to declare all affirmative action programs unconstitutional, but the fifth vote in that case wanted to allow limited affirmative action programs under narrow circumstances, then the latter becomes the new legal standard.

The court also is designed to be somewhat insulated from political pressures, with justices appointed for life. One result is that presidents can ultimately be surprised by their appointments. We saw this, for instance, with Eisenhower appointee Justice William J. Brennan Jr. ending up to the left of Kennedy appointee Justice Byron R. White.

Yet the Supreme Court has now become almost as ideologically predictable as the Congress. And the ideological pendulum has become a one-way bulldozer — a process that started during the Nixon administration. The so-called swing justice went from Lewis F. Powell Jr. in the 1980s to Sandra Day O’Connor, to Anthony M. Kennedy to, now, Chief Justice John G. Roberts Jr. All of these were Republican appointees, but they’ve become more conservative with each new retirement. So the court has moved further and further to the right. There’s now a reliable five-justice majority on issues ranging from school vouchers and affirmative action to border control and deregulation.

I would be remiss if I did not mention here the most momentous and egregious event in this process of building the current ultraconservative court: the unprecedented obstruction of President Barack Obama’s nominee Merrick Garland.

Scalia died unexpected in February 2016, and Obama put forward Garland’s nomination in March. But Senate Majority Leader Mitch McConnell (R-Ky.) refused to allow any confirmation hearings, citing the presidential election to take place eight months later. President Trump eventually appointed Justice Neil M. Gorsuch to the seat, maintaining the conservative five-justice majority (which was soon strengthened with Justice Brett M. Kavanaugh replacing Justice Anthony M. Kennedy). Had Garland replaced Scalia, the swing justices (depending on the issue) would have been moderate-liberal justices Stephen G. Breyer, Elena Kagan and Garland — with Justices Ruth Bader Ginsburg and Sonia Sotomayor reliably to their left. Even though Garland was generally seen as a moderate judge, this would have been the court’s most momentous shift to the left since the 1960s. Decisions like that handed down today would have looked far different.

But the Espinoza decision was itself decades in the making. The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutional forbidden in 1970s to constitutionally allowed in 2003, via the Zelman decision, to now arguably constitutionally required, at least under the Montana circumstances.

Let’s return to that high fence mentioned earlier. Once the Supreme Court decided to hear the Espinoza case, we were left to hope that it would at least leave in place a speed bump of separation between church and state.
What we got instead is a shotgun marriage between church and state.

The court’s decision this morning held that application of the “no aid” provision in the Montana state constitution was barred by the Constitution’s free-exercise clause. The Montana provision prohibited any direct or indirect aid to a school controlled by a “church, sect, or denomination.” Like the dispute at issue in the Trinity Lutheran case, this prohibition was based on status as a religious institution, rather than a religious use. But the court’s Espinoza majority opinion — written by Roberts and joined by the other four conservative justices — also minimizes that distinction, which was important in Locke and potentially crucial to the decision in Trinity Lutheran:

“None of this is meant to suggest that we agree with the Department [of Revenue] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. [Citations to Justices Gorsuch and Thomas]. We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. (Page 12, with internal citations omitted.)”

Here’s more critical language, from pages 13-14 of the court’s slip opinion (with internal citations omitted and emphasis placed on one sentence):

“Locke differs from this case in two critical ways. First, Locke explained that Washington had “merely chosen not to fund a distinct category of instruction”: the “essentially religious endeavor” of training a minister “to lead a congregation.” Thus, Davey “was denied a scholarship because of what he proposed to do — use the funds to prepare for the ministry.” Apart from that narrow restriction, Washington’s program allowed scholarships to be used at “pervasively religious schools” that incorporated religious instruction throughout their classes.”

By contrast, Montana’s constitution does not zero in on any particular “essentially religious” course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefits.

At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy, explaining that ‘opposition to … funding “to support church leaders’ lay at the historic core of the Religion Clauses.” … But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid.

The court concludes, “[I]t is clear that there is no ‘historic and substantial’ tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke.” (p. 16). But this historical focus was a side note in the court’s earlier Locke decision. What Roberts did this morning was to limit Locke to its unique facts, marginalizing its usefulness as a precedent.

But note that sentence in bold from the passage above. A state’s constitution is given meaning by the state’s courts. Imagine if, upon remand, the Montana Supreme Court issues a new decision, saying something like: “In view of the U.S. Supreme Court’s decision, we interpret the ‘no-aid’ provision in our state constitution to prohibit any direct or indirect financial support to religious instruction in church-controlled schools.”

This would allow a voucher law that provides support to religious schools but not to religious education. Implementing or enforcing that funding mechanism would entangle the state with the operations of the religious schools, but it would seem doable. Would the Roberts court find that approach to be constitutional, or would it further restrict the reach of Locke?

What’s clear for now is that the long-standing “tuitioning” voucher systems in Maine and Vermont, which are limited to nonreligious private schools, cannot stand. There will have to be a shotgun wedding between church and state in those two states.

Other implications, which will reach beyond school vouchers, will emerge in the upcoming months and years.