Chief Justice John G. Roberts Jr., writing for a conservative majority in the 5 to 4 ruling, said the Montana Supreme Court was wrong to strike down the program because of a provision in the state constitution that forbids public funds from going to religious institutions. The U.S. Constitution’s protection of religious freedom prevails, he said.AND: Here's the text of the opinion. I'm going to read it and give you more detail. I've taken out a statement I had up for a few minutes, criticizing the WaPo headline in a way that I no longer think was right.
“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
ADDED: The state legislature enacted a tax credit of up to $150 for donations to scholarship programs, which could fund tuition for kids attending private schools. The state Department of Revenue interpreted the statute — which referred to "qualified education providers" — to exclude religious schools. That seems to be in line with the state constitution's prohibition of financial aid to "any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination," but the Free Exercise Clause of the U.S. Constitution requires strict scrutiny of discrimination against religion.
Under Supreme Court precedent, there's no Establishment Clause problem in including religious schools. The aid is defined in a religion-neutral manner, and it's only the parents' choice that determines that the money goes to a religious school. The hard question is whether the state court could use the state's constitutional "no aid" provision to strike down what the legislature did. The state's separation of church and state is especially staunch — stronger than the federal Establishment Clause — but can that be the "compelling state interest" that justifies discrimination against religion? The majority's answer is no, because the Free Exercise Clause is federal law.
But the state court took the benefit of the program away from everyone. So doesn't that achieve nondiscrimination? The dissenters say it does, but the majority says the legislature chose this program, and the state court's first step was a discrimination against religion. There was a second step, depriving everyone of the program, but that step was founded on the discrimination the court thought the state constitution required.
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60 comments:
Roberts penance for the abortion case.
The anti-Catholic bigotry behind these laws is disgraceful. Good to give Montana the back of the hand for their prejudice.
NYT excoriates Roberts as a rigid ideologue in 3, 2, 1...
(repost)
MAGA!!! And Praise be!
Its another murky, one decision 4 opinions Establishment clause case. The problem is that the SCOTUS threw out all precedent in 1948 and 1962, and found "The separation of church and state" in the Constitution, which doesn't exist. As a result, what the Establishment clause means shifts back and forth from one year to the next, depending on who's on the court and how they feel that day. No bright line lines just endless confusion.
BTW, does Roberts have a judicial philosophy? As far as I can tell, he's just a Politician in black robes like Grandma O'Conner.
When elite institutions are 2% Jewish to reflect their share of the population, the Kagans, Breyers, and Ginsburgs will then understand the stupidity of their views.
Ever the mercurial intercessor, who can say what fancy will take Roberts next? Roll the dice.
AND: Here's the text of the opinion. I'm going to read it and give you more detail. I've taken out a statement I had up for a few minutes, criticizing the WaPo headline in a way that I no longer think was right.
More speech is better. Instead of memory-holing yourself, why not expound on the new info and how it changed your conclusions?
The establishment clause issue is the weird religion being taught in the public schools.
BTW, does Roberts have a judicial philosophy? As far as I can tell, he's just a Politician in black robes like Grandma O'Conner.
His philosophy is, "avoid any decision which could be seen as another Roe v. Wade and cause controversy for decades." Instead he tries to find the decision with the least amount of legal impact, and pushes the issues back to the Legislature and Executive.
"Conservative" majority... bull shit.
Four members want the bureaucracy free to discriminate against religion.
They want second class citizens.
Fuck them.
The liberal monopoly over education needs to be shattered. This is a fantastic decision. Too bad it is just Montana. The inner city kids trapped in MPS need to be freed.
Parents that pay property taxes, that choose to send their kids to private or religious schools should be given a tax break. They relieve the local district and the state of the cost of the student.
Someone beat me to it?
to paraphrase; I'm to going to get into how they reached the decision, just bask in the glory of the outcome.
Of course the constitution says "congress shall make no law". That is very clear language, and only a judge could get confused by it. Even expanding it to the states, (14th amendment does A LOT of work) Montana singles out religion and restricts its exercise.
In order to argue against me, you would be forced to use other persons reasoning, and avoid the facts.
I noticed this technique a while back. Arguing minutia of the law, citing judicial opinions, majority, minority, dicta from the bench not attached to a ruling, constant back and forth about papers submitted to law journals. In the end, everything but the facts. The Flynn case is like this. Facts on the ground have been made public Flynn has done nothing wrong. Not even lie to the FBI during an interview they had no business conducting. But thousands of cites about case law arguing the process supersedes the facts.
Being a lawyer should be disqualifying to sit on SCOTUS.
In baseball parlance, this was a "make-up call" by the home plate umpire.
Montana's legislature can, of course, still repeal the law- right?
When are groups like Zero Hour going to be classified as neo-religious organizations?
It’s amazing that those 4 liberal votes are in virtual lockstep year after year. It’s almost like if you care at all about SCOTUS giving due consideration to a case, you are required to vote Republican. If you think that the Constitution is an outdated rag undeserving of respect, then it’s Democrat for you.
Freedom of the billionaire owned press is sacrosanct, for example, but free speech for the rabble is problematic, to say the least. Don’t worry though, the Nazis are on the right.
Roberts is trying to convince the right that he is a good guy after all.
The state's separation of church and state is especially staunch...
https://www.google.com/search?q=blaine+amendment
You're welcome.
History will vindicate the opinions and dissents of Justice Thomas. He seems to be the only true adherent of the Constitution on SCOTUS.
According to the Institute for Justice, 37 state constitutions contain "Blaine Amendments". Wisconsin is one of those states.
I'm not 100% sure, but I believe that the Institute for Justice and allied organizations believe that all those Blaine amendments are rendered inoperative by this decision.
This decision will shift more money into religious schools than BLM will extort from large corporations.
Nice opinion. How did those "obama" judges vote again Roberts.
the whole line of cases from vitale, onward were wrongly decided,
"They relieve the local district and the state of the cost of the student."
Read it as "They relieve the local district and the state of the need to hire more administrators and teachers" and the real meaning becomes clearer.
Now the question is whether these state funds can go to support of pure religious indoctrination, like RC catechism or Scientology nonsense, voodoo and candomble, and so on. There's no need to save kids from parent's superstition by teaching math and science, I suppose.
Nothing like constant 5-4 decisions to disabuse people of the notion that the justices are only interpreting law according to the Constitution and and not according to their ideology.
Public schools largely exist due to the Blaine Laws. There is no reason they have to exist. Indeed they push ideological viewpoints that are not universally accepted, a de facto quasi-religious viewpoint establishment. The various levels of government ought to get out of running schools and or give the taxes spent per child to the parent's choice of private school. To be neutral, vouchers should be the norm,not the exception.
There's no need to save kids from parent's superstition by teaching math and science, I suppose.
There is far more likelihood of parents teaching Math and Science than your communist teachers' unions. Superstition and ignorance are teachers' unions stock in trade.
Jimbino:
Unless you are some sort of savant, which, on the evidence, appears doubtful, my Catholic school-educated daughters would run circles around you in science and math.
cubanbob said...
The various levels of government ought to get out of running schools and or give the taxes spent per child to the parent's choice of private school. To be neutral, vouchers should be the norm,not the exception.
6/30/20, 1:22 PM
From your lips to God's ear (am I still allowed to say that?).
Can't have that though. Know what organization is constantly in the top 3 (if not #1) of Democrat donation? Teacher's union.
Too many rice bowls get knocked over if teachers have to actually show/demonstrate competence instead of just taking credential courses and seniority. Also, there is no space in private schools for all the administrators that exist in the public school system.
Public school serves three functions: free (haha) child day care, works program for administrators, and donation machine for Democrats.
It would be wonderful if one state (say the one with the worst school performance) went 100% vouchers and full private school, did away with public school at all levels and compare those outcomes after 6 years.
You people are so predictable: Maga-ninimous in Victory, ingracious in Defeat.
The state of Montana does not tax property, education and charitable activities of bonafide churches, so how is it fair to additionally give them public funds toward paying for school operations normally financed by tuition fees?
Level the playing field by first making property-based taxes chargeable to churches. Now lowered taxes on individuals puts us on the same base after next eliminating itemized religious tithing tax deductions. Don't we have to do this to take away unconstitutional church freebies?
I read where some 13,000 of the country’s 17,000 Catholic parishes applied for the government’s Covid-19 small business stimulus programs this year, and about half have so far received the requested funds. This "very small business" has collected $1.6 billion in government grants since 2012. Someone, I guess, has to help pay for settling various sexual-abuse cases that have cost the American church more than $3 billion so far.
Ilya Somin (Volokh Conspiracy) makes an interesting point about the politics of religious discrimination:
While I am happy about the result of this decision, I am troubled, though not surprised, by the 5-4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias.
Except I disagree with Somin that the travel ban case turned on religion. Somin believes that Trump himself is anti-Muslim, and that banning immigration of everyone (Muslim or not) from a few predominantly Muslim countries must therefore be based in religious discrimination. But that's not the same as Montana's Blaine amendment, which Somin acknowledges is discriminatory on its face.
If the plaintiff Espinoza v. Montana had been an Islamic school, I'm reasonably certain that the Supreme Court result would have been 9-0 to strike down the Blaine Amendment and overturn the Montana Supreme Court.
Howard said...
You people are so predictable: Maga-ninimous in Victory, ingracious in Defeat.
6/30/20, 2:14 PM
Strange how Howard is always upset when common sense or rule of law score a win.
Would you be happier if we went on a wild rampage, burned shit, and looted shit whether "we" win or lose? Just like your "team" does?
But can they use this decision as a way to control religious schools? Can they mandate that, say, the teachers do not teach anything too "partisan" or too "religious", or else they don't get any state money?
@gadfly,
Level the playing field by first making property-based taxes chargeable to churches. Now lowered taxes on individuals puts us on the same base after next eliminating itemized religious tithing tax deductions. Don't we have to do this to take away unconstitutional church freebies?
Oh, Jesus Christ on a Cracker, what is it with this canard?
Churches do not pay taxes because they are non-profit companies, in particular they are charities. Charities do not pay taxes, including secular ones. If you are that ignorant of the basics of corporate tax law, you really should hold your tongue.
If you want to destroy all the non-profits by changing the tax law, including tax deductions for charitable giving, well, do so. The non-profit world is rife with abuse, and it's far from just the religious organizations who are the worst abusers (e.g. the Clinton Global Initiative). But, to pick out the religious organizations out as somehow abusers of tax law is basically bigotry.
How many countries on this planet have no state schools? Admittedly, in countries with established churches the state schools are sectarian and/or religious schools publicly funded. I am the product of state kindergarten, 12 years of private Catholic schools, 6 years of non-sectarian private universities. Hated kindergarten and big fan of the rest. But doing away with state schools seems unrealistic.
As AA tags reflect, today's opinion shows tension between 2 religion clauses in first amendment.
There's no need to save kids from parent's superstition"
At the moment teachers everywhere are planning BLM lessons to save kids from their parents' "racism."
Howard said...
You people are so predictable: Maga-ninimous in Victory, ingracious in Defeat.
Yeah, us deplorables that Howard towers above, at least in his imagination.
Geez it's just a $150 tax credit.
Big whoop.
An ideology is an ideology is an ideology.
Because the structure of the psyche demands it be filled with a belief system and all ideas have context whether it be for (agonist) or against (antagonist), these ideas in their essence are all the same. Opposing ideas are in a contest (fr greek agon) for followers. My point here really is that the separation of church and state has become archaic. The temporal weakness of organized religion is on a par with any nonprofit organization and even out-of-power political parties. Let the agonistes (contestants) battle it out.
(No one can tell me the Left is not a religion, it is and a fanatical one at that!)
Why not? I got my University education through the VA and received a degree from a Catholic University.
Our two kids when to parochial schools, graduated, went to collage to. Neither became hippie nutjobs. But we paid both the tuition AND state/city school taxes.
About time this happened. The school we sent them to taught them manners and decency as well as real 'reading, writing, and arithmetic'!
@NC William
"Jimbino:
Unless you are some sort of savant, which, on the evidence, appears doubtful, my Catholic school-educated daughters would run circles around you in science and math."
I only hold an advanced degree in physics from the University of Chicago, but I'd still love to meet your baptized and confirmation-brainwashed daughters.😉
Did I comment on either ruling? No, of course not. I don't care about these extraneous details. I do enjoy you peoples passion. Much ado about nothing... a great comic relief. The cherry on top is seeing how you each rub your noses in the shit I'm giving you. Does the name Pavlov...
(No one can tell me the Left is not a religion, it is and a fanatical one at that!)
They do, in fact, subscribe to a Pro-Choice, selective, opportunistic, politically congruent religion (i.e. moral, its relativistic cousin ethics, or behavioral philosophy). The oldest known religion that preceded God, gods, dictated by mortal gods and goddesses.
I am not a lawyer and I have no legal training. Instead I will try to evaluate this as I would normally evaluate things, which is basically from a scientific background, that is trying to understand a subject and interpreting the subject in a way that adds up and makes sense.
Since this means I'm rejecting authority as a basis for deciding whether something is true or not, this may put me fundamentally at odds with the legal profession.
As I understand it the primary role of the Supreme Court is to enforce the Constitution. They are not supposed to inject their personal opinion as to what is right or wrong into all of this. Having said that any document is going to be subject to different interpretations so that we can expect that even people who are arguing in good faith will disagree on parts of what the Constitution means.
But then having said that many people who are not arguing in good faith will take this legitimate room for disagreement and expand it to claim the Constitution means whatever they want it to mean.
The more common human tendency is unfortunately the latter.
I can see three arguments for the court's ruling and one against.
Contrary to what the left claims the Constitution is not opposed to religion. Instead it asserts that the Federal government must be neutral on the question of one group over another and should not discriminate between the religions.
This would be the first argument for the ruling.
The people who wrote the Constitution failed to imagine a world where a significant minority or even a majority claim not to believe in a religion. At the time the Constitution was written almost everyone believed or at least acted like they believed in some specific religion. The Constitution attempted to mandate that the federal government be a neutral party in the disputes between these many different religions that were present in the original thirteen states.
It is a subject of some legitimate dispute about what exactly the Constitution means in this new context. But at some fundamental level think this is all bullshit. I think in reality everyone or almost everyone believes in a 'religion'. It may be a religion that has a different form that what was common in the 1700s but they are still large communities that share many beliefs in common and in opposition to other religions.
If we treat the so-called non-religious as a special group that have rights that the religious don't have, then this is not only diametrically opposed to the spirit of the Constitution -- the logic of right and wrong that is implicit in it -- it is also opposite to the clear intent and articulated beliefs of the people who wrote the Constitution.
This would be the second argument for the ruling.
On the other hand with the exception of a few issues the Constitution is not a document about what a state can not do, but rather a description of the role and purpose of the federal government and restrictions on what the federal government can do. So although it is unconstitutional for the federal government to discriminate between religions, it is not as far as the original Constitution goes, unconstitutional for states to discriminate in favor of one religion over another.
Thus many of the original states had official state religions and a person could only be elected to a state government office if they were a member of that religion. If it was legal to do that in 1800, then clearly the Constitution allowed that, and by the same logic it should be legal for Montana to discriminate in favor of the 'woke' religion over the other religions.
This would be the argument against the ruling.
[to be continued because it was too long a post]
But there isn't just the Constitution, there are also the amendments to the Constitution. The Constitution defined a process for changing itself and those changes have occurred. Now we have to ask what the amendments mean. Here's what it gets complicated and here's where I get lazy. I know there is a legitimate argument about what those amendments mean, but I'm probably not going to spend the substantial time that the issue would deserve to form my own opinion. Since I haven't really taken the time to understand the subject yet, then I can note that this is an area to be explored, and if explored it might be an argument for the ruling or not.
And then there is the ethical argument. This is independent of what the Constitution says or not. This is my personal judgement of right and wrong. And it's my opinion that the states should not be favoring one religion over another, and that therefore both the Constitution and the current ruling have it right.
That would be the third argument for the ruling.
And then there is one more ethical argument. It occurred to me as I wrote the "ethical argument" above to wonder whether it really was ethical. What if the better ethic would be to do as the original Constitution allowed and allow different states to go different ways and discriminate in favor of different religions?
The actual right and wrong of this isn't that straightforward, and actually I'm a bit uncertain. In fact I might change my mind if it were truly an option for states to act independently and discriminate in favor of one belief over another.
Unfortunately that isn't even a choice. Since I'm not stupid I know that is not on offer. There would a hue and cry if a state discriminated against say Protestants or the woke. We all know this purported maybe right only goes one way.
So here we have a split decision. We can imagine universes in which states would be allowed and encouraged to do things differently. But that is not the universe we live in. Here the only 'choice' is whether to discriminate in favor of the 'woke' and against everyone else or to not to do that.
So although it is complicated, this is an argument for the ruling.
the state court's first step was a discrimination against religion.
Wokeism is the largest religion going.
It's entire purpose is to maximize the government money flowing into it.
"But the state court took the benefit of the program away from everyone."
This is the argument that because both straights and gays are denied same-sex marriage, it is fair. And here you raise it. In another context you denied that argument had any validity. You can distinguish between the arguments and so can I.
"But yours is driven by policy preferences and is therefore weak tea," said everybody always.
A religion in school or school with religion. Same difference. The established Church is, for now, Progressive.
@ Jimbino Now the question is whether these state funds can go to support of pure religious indoctrination
In the Wisconsin Choice Voucher programs, the private school can not require students to participate in any religious education classes or fund raisers to support the school.
Have a friend who is president of the board at a Christian school. They are considering becoming a choice school. In his research, he found a neighboring Christian school that accepted a student whose family came from India - non Christian. They assumed that the child would not be participating in the religious part to the program, but the family chose to not opt out.
Technically, the government is not paying for any religious education - the choice students are there to learn the academic programs like math, science, language, etc.
@ YoungHegelian said...
Oh, Jesus Christ on a Cracker, what is it with this canard?
Calling my statement a canard implies it to be made up, as in Trump Fake News, I presume. Hiding behind bad non-profit tax law is not an excuse to permit deliberately placing holes in the law to be used by tax cheaters.
Above all, charity has nothing to do with taxes and tax-breaks - except to permit the Donald Trump Charities of the world to steal money (which he and his pitiful offspring admitted to Judge Saliann Scarpulla)- so take the special laws off the books. And from a tax deduction standpoint, there is nothing charitable about giving away wealth to save tax payments, since the government ends up financing by setting higher tax rates for us poor underlings.
And then there are the IRS-approved "religious" endeavors such as the "Pussy Church of Modern Witchcraft."
Fuck Marbury v Madison.
That is all I have to say.
All of these judges are absurd people and they have assumed powers they were never intended to have.
Browndog said...
Fuck Marbury v Madison.
Exactly.
A blind Monkey could do a better job "interpreting" the constitution then 90% of these priest-kings.
@NC William
"Jimbino:
Unless you are some sort of savant, which, on the evidence, appears doubtful, my Catholic school-educated daughters would run circles around you in science and math."
I only hold an advanced degree in physics from the University of Chicago, but I'd still love to meet your baptized and confirmation-brainwashed daughters.😉
Don't worry, he doesn't like girls.😉 But he might have trouble telling, so be armed anyway.
mandrewa
Lots of thoughtful reflection.
How about leaving the decision to the people themselves? Those closest to the issue? That's what the Constitution instructs.
"powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In practice the federal judiciary has usurped the powers of the people and the States. Made rulings that according the Constitution, are within the enumerated powers of the State, or more importantly the people closest to the the question at hand.
Blogger Howard said...
"Did I comment on either ruling? No, of course not. I don't care about these extraneous details. I do enjoy you peoples passion. Much ado about nothing... a great comic relief. The cherry on top is seeing how you each rub your noses in the shit I'm giving you. Does the name Pavlov..."
Pssst. Nobody here takes you seriously, soiboi.
@mandrewa:
Interesting.
Particularly where you note that the anti-religious are just as religious as everyone else.
gadfly,
The state doesn't tax the property of school districts, either.
THAT is the comparable entity here; thank you for trying to play.
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