Conservatives who praise Espinoza for upholding religious freedom do not realize that they have laid a snare for themselves. Espinoza sets an awful precedent, which empowers the federal Supreme Court to rewrite a State’s constitution under the guise of upholding the 1st Amendment to the Philadelphia charter. Ironically, it is Justices Ginsburg and Sotomayor who get it mostly right here (and Justice Thomas to a degree as well). The former two argue that as the education tax credit program was struck down entirely by the Montana Supreme Court, consistent with Montana’s constitutional requirement that no public money fund religious education (Article X, Section 6), a proper respect for the principles of federalism left nothing for the federal SC to decide. From Justice Sotomayor’s dissent:
. . . Having held that petitioners may not be “exclu[ded] from the scholarship program” that no longer exists, the Court remands to the Montana Supreme Court for “further proceedings not inconsistent with this opinion.” Ante, at 22. But it is hard to tell what this Court wishes the state court to do. There is no program from which petitioners are currently “exclu[ded],” so must the Montana Supreme Court order the State to recreate one? Has this Court just announced its authority to require a state court to order a state legislature to fund religious exercise, overruling centuries of contrary precedent and historical practice? See Cutter v. Wilkinson, 544 U. S. 709 (2005); Locke v. Davey, 540 U. S. 712 (2004); see also Trinity Lutheran, 582 U. S., at ___–___, and nn. 7–11 (SOTOMAYOR, J., dissenting) (slip op., at 12–20, and nn. 7–11) (describing States’ religious disestablishment movements near the founding and cataloging state constitutional provisions declining to aid religious ministry). Indeed, it appears that the Court has declared that once Montana created a tax subsidy, it forfeited the right to eliminate it if doing so would harm religion. This is a remarkable result, all the more so because the Court strains to reach it.
The Court views its decision as “simply restor[ing] the status quo established by the Montana Legislature.” Ante at 22, n. 4. But it overlooks how that status quo allowed the State Supreme Court to cure any disparate treatment of religion while still giving effect to a state constitutional provision ratified by the citizens of Montana. Today’s decision replaces a remedy chosen by representatives of Montanans and designed to honor the will of the electorate with one that the Court prefers instead.
In sum, the decision below neither upheld a program that “disqualif[ies] some private schools solely because they are religious,” ante, at 20, nor otherwise decided the case on federal grounds. The Court’s opinion thus turns on a counterfactual hypothetical it is powerless (and unwise) to decide.
Quite disturbing is the ground on which part of the majority base their argument for overturning the no-aid provision of Montana’s constitution. Using their superhuman abilities to discern the secret intentions of the hearts of men of generations ago, they determined that the current Art. X.6 was based on hatred toward Roman Catholics and others, so it is necessary that these pure-hearts on the federal bench remove this dark stain from Montana’s constitution for the greater good of Montana and the rest of the Glorious Union. Here is a bit from Justice Alito’s concurring opinion:
Thus, the no-aid provision’s terms keep it “[t]ethered” to its original “bias,” and it is not clear at all that the State “actually confront[ed]” the provision’s “tawdry past in reenacting it.” Ramos, 590 U. S., at ___ (SOTOMAYOR, J., concurring in part) (slip op., at 4). After all, whereas the no-aid provision had originally been foisted on Montana, the State readopted it voluntarily—“sectarian” references included. Whether or not the State did so for any reason that could be called legitimate, the convention delegates recognized that the provision would “continue to mean and do whatever it does now,” Convention Tr. 2014 (statement of Delegate Loendorf ), and the discrimination in this case shows that the provision continues to have its originally intended effect. And even if Montana had done more to address its no-aid provision’s past, that would of course do nothing to resolve the bias inherent in the Blaine Amendments among the 17 States, by respondents’ count, that have not readopted or amended them since around the turn of the 20th century.
Isn’t this the sort of mind-reading that conservatives usually spare no effort to upbraid when it comes to hate-crimes laws that mete out stiffer penalties because the perpetrator supposedly had a strong dislike of such-and-such a group of people? But now ‘conservatives’ on the federal SC use this exact same method to arrive at a conclusion they desire, the public funding of religious schools.
Of course, this is not a bad end in itself, but we have to arrive at it the right way. As Mr Justice Thomas points out in his concurring opinion, the 1st Amendment allows State governments to decide these sorts of questions for themselves:
Thus, the modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect. Properly understood, the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions.
And a little later,
Under a proper understanding of the Establishment Clause, robust and lively debate about the role of religion in government is permitted, even encouraged, at the state and local level.
But, again, because the majority think Montana ought to be funding religious schools with taxpayer money, they ignore the limits placed on the federal courts and invade a realm reserved for State and local decision-making, which actually serves to squelch variety in public religious life rather than encourage it.
Look at what we’ve got here: The ‘liberals’ rightly upholding judicial restraint and federalism, and the ‘conservatives’ wrongly empowering the federal courts to trespass federalism and rewrite State constitutions. It is an act of sheer madness to put any trust in this institution now. The States simply need to ignore the federal courts and find ways to solve their own problems.
However, at this present moment: We understand and sympathize with the desire of folks like the Family Research Council to have State governments support religious instruction for students, etc., but the end doesn’t justify the means. The precedent set with Espinoza will come back to haunt them one day when (not if) the federal courts decide to rewrite other State constitutional provisions regarding religious exercise in ways that are unacceptable to them.
Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!
Anathema to the Union!