The U.S. Supreme Court this morning issued an opinion in an important church-state case called Espinoza v. Montana Department of Revenue. Ruling 5-4, the court held that the Montana Supreme Court was wrong when it invalidated a tax-credit voucher program because it included religious schools.
Americans United attorneys are analyzing the decision, but here are five quick takeaways:
This ruling is a serious blow to church-state separation and religious liberty: in his majority opinion, Chief Justice John G. Roberts rejected the notion that compelling taxpayers to support religious schools is a violation of an individual’s religious freedom rights. Rather, he asserted that when religious schools are denied access to certain taxpayer-funded programs, it is their religious freedom that’s being violated – a nonsensical claim that turns the very concept of religious freedom on its head.
The ruling exposes taxpayers to forced funding of discrimination: Of the 12 private schools taking part in Montana’s program, 10 have discriminatory policies that they apply to students, teachers and staff. These policies either require adherence to a certain faith tradition and/or refuse admission to LGBTQ students or children with disabilities altogether. Taxpayers of Montana will now effectively be required to support these schools, unless Montana’s legislature takes action to prohibit Montana’s program from supporting schools that engage in discriminatory practices. Importantly, the decision does not address whether states that fund private education may deny funding to schools that have discriminatory admissions or employment policies, or whether it is constitutional for states to fund such discriminatory schools if they want to do so.
The ruling is further evidence that states must stop passing voucher plans: The high court did not say that states must establish voucher plans, only that if a state does have one, religious schools must be included. There’s a lesson here for all of us: If you don’t want your tax money to support religious schools, make sure your legislators don’t pass voucher plans.
As bad as the decision is, it could have been much worse: Justice Clarence M. Thomas reiterated his view that states should not have to abide by the church-state provisions of the First Amendment (or indeed the entire Bill of Rights.) In his concurring opinion, Thomas wrote that nothing in the Constitution should “prohibit States from favoring religion.” Thomas’ view remains an extreme outlier – for now. And Justices Samuel A. Alito and Neil Gorsuch strongly implied that they would have gladly wiped out completely provisions in more than 35 state constitutions that bar taxpayer funding of religion because they consider them to be anti-Catholic.
Judges make a difference: This decision would have gone the other way – or more likely the Supreme Court would have never even taken up the case – were it not for the presence of Trump appointees Gorsuch and Brett Kavanaugh on the bench. Remember, Supreme Court justices (and lower federal court judges) are appointed by the president and either confirmed or denied by the Senate. When you are voting for president and senators, you are in effect “electing” judges as well. It really matters, especially because the concurring opinions that some justices issued today made clear that they want to erode constitutional protections against forced tax funding of religious institutions even more than today’s decision does.
Today’s decision is disappointing, but Americans United won’t waver from its historic mission of defending church-state separation, non-sectarian public education and the right to support only the religion, if any, that you choose.
Our next steps are clear: We must redouble our efforts to stop private school voucher schemes and work even harder to ensure that public dollars are used only for public schools.
With your help, that is precisely what we’ll do.