Thread by @CarolineMCorbin

The Supreme Court is set to hear Espinoza v. Montana Dept of Revenue today, about funding of religious schools.

But it is not an Establishment Clause challenge to govt funding of religion. Nope.
It is a Free Exercise one about the failure to fund religion.

#SCOTUS #Espinoza

In #Espinoza, Montana created a tax credit program where for every dollar you donated to a school scholarship org, you get a dollar off your tax bill.

The school scholarship org would then provide scholarships for students at private schools.

#SCOTUS #SupremeCourt

Here's the problem: 12 out of 13 participating private schools were religious schools, and the Montana Constitution bans the State of Montana from funding, either directly or indirectly, any religious schools.

#Espinoza #SupremeCourt #SCOTUS

The Montana Dept of Revenue, charged with implementing the program, created a rule (Rule 1) that private religious schools may not participate.

Parents with children at religious schools sued, arguing that Rule 1 violated their rights under the Free Exercise Clause

#Espinoza

The Supreme Court of Montana struck the whole program down, so that Montana is not directing any money towards private schools, religious or secular.

The parents with children at religious schools still claim that their free exercise rights are being violated.

#Espinoza

The #Espinoza parents claim that they are victims of religious discrimination & point to Supreme Court's decision in Trinity Lutheran Church v. Comer.

In Trinity, #SCOTUS held that govt cannot create a program to fund playgrounds & then exclude a religious school

Trinity & #Espinoza are NOT analogous.

First, the govt was funding secular playgrounds but not religious school playgrounds in Trinity.

Espinoza is not a case where the govt is funding secular private schools but not religious private schools.

It is funding NO schools.

The second reason that Trinity and #Espinoza are not analogous?

In Trinity, #SCOTUS made it quite clear that it considered that govt funds were going to a secular activity: making playgrounds safer.

In Espinoza, the govt funds would be going to a religious activity.

The #EstablishmentClause frowns upon using govt funds for religious activity. See James Madison, Memorial & Remonstrance.

That is why until recently most cases involving taxpayer money & religious schools have been #Establishment Clause challenges.

#Espinoza #SCOTUS

(A technical point in #Espinoza: Will the #SCOTUS eliminate the play in the joints between #Establishment & #FreeExercise, but only in one direction?

Will the new regime be:
If not required by Establishment, limits on religion will violate #FreeExercise, but not vice-versa?)

But Prof. Corbin, you may say, what about animus towards Catholics? Isn't that what animated Montana's no-aid constitutional provision in #Espinoza, and doesn't that make it unconstitutional?

#SCOTUS

(An aside: if we are going to look at historical animus--what motivated the decision to make Christian all those early prayers #SCOTUS uses to justify legislative prayers? Bc surely if they motivated by any anti-Semitic animus, oughtn't they be struck down at once?)

#Espinoza

Back to anti-Catholic animus & Montana's no-aid provision in #Espinoza

First, the historical record is not clear

Second, Montana redid its constitution in 1972, & that record clearly shows the utter lack of anti-Catholic animus.

#SCOTUS

What motivated Montana's Constitutional Committee in 1972 to adopt Montana's no-aid provision?

First, they did not want taxpayer dollars diverted away from public schools.

Second, get this: they believed in the separation of church and state.

#SCOTUS #SupremeCourt #Espinoza

P.S. Here is the link to the transcript of oral argument in the Supreme Court for Espinoza v. Montana Dept of Revenue

buff.ly/37nh5eD

#Espinoza #SupremeCourt #SCOTUS