Espinoza v. Montana: Rhetoric and Precedent

In the short time since it was released, a great deal has been said about the Supreme Court's decision in the Espinoza v. Montana Department of Revenue case. A great of column inches perhaps, or words, but very little in terms of critical analysis. Chief Justice Roberts himself set the standard for misunderstanding the ruling when he described it as:
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.
The New York Times runs with this interpretation:
Religious schools should have the same access to scholarships and funds as other private schools, the justices ruled, in a victory for conservatives.
and The Washington Post reports the decision as saying:
[ States ] that subsidize private education must include religious schools
which is repeated by CNBC:
Supreme Court says Constitution protects Montana scholarship program that indirectly funds religious schools
The National Law Review, for its part, offers what seems a straightforward assessment of the decision:
On June 30, 2020, the U.S. Supreme Court decided Espinoza v. Montana Department of Revenue, No. 18-1195, holding that if a state subsidizes private education, the Free Exercise Clause does not allow the state to deny that subsidy to a school because it is religious.
and this assessment is shared by Wikipedia:
[ The Court ] ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the Free Exercise Clause of the Constitution.
All of this is quite fascinating for the simple reason that none of it - not a word of it - is true. The decision in Espinoza does not rule on the matter of public subsidies for private religious schools. There is no functional limitation to private education at all in the holding. What the decision actually says is this:
Held: The application of the no-aid provision discriminated against reli- gious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution. Pp. 6–22. (a) The Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, ___. In Trinity Lutheran, this Court held 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.” Id., at ___. Here, the application of Montana’s no-aid provision excludes religious schools from public benefits solely because of religious status. As a result, strict scrutiny applies. Pp. 6–12.
What the court ruled is that any public benefit which is denied a recipient because of the recipient's religious status requires "strict scrutiny". The concept of "strict scrutiny" was invented by the Roberts Court for its 7-2 decision in the Trinity v. Comer decision. That decision ruled in favor of a religious school, stating
This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.
Here the Court referred to a previous decision, Locke v. Davey, in which the plaintiff had been denied the use of public scholarship money to pursue a religious degree. The Locke decision was predicated on the use to which the public monies would be spent. To distinguish the Trinity case from Locke, Justice Roberts argued that while such religious use was prohibited by the First Amendment's Establishment clause, the Exercise clause also ensured that the state could not prohibit religious exercise merely for its religious character. For Roberts, the test comes down to the question of whether or not the recipient is being denied funding because of what it chooses to do, or because of what it is - that is, its status as being religious. This is what is meant by "strict scrutiny".

What should be immediately apparent is that such "scrutiny" is anything but "strict": in Trinity the Court completely ignored the salient fact that Trinity Lutheran schools, in its charter, explicitly states that it is training its students to do something religious, which is to proselytize their faith. No student attending any Christian school is being taught only secular facts; but the very nature of their being "Christian" in the first place is to disseminate their religious faith and encourage Christ-like behavior. This is, after all, the very meaning of the word "Christian". Therefore what the Roberts Test actually does is put the State in the untenable position of evaluating religious doctrine in order to determine this non-existent distinction between doing and being.

That puts the State in the position of denying the very thing it proposes to defend: the protection of religious exercise comes to depend on the lack of the exercise - of the putting into action - of the religious faith. The Roberts Test is an incoherent mess at odds not only with itself, but in direct contradiction to the First Amendment.

That contradiction is apparent in the Court's own holding, which argues the Montana refusal to force taxpayers to support religion is "in violation of the Free Exercise Clause of the Federal Constitution...[ which ]...'protects religious observers against unequal treatment' and against 'laws that impose special disabilities on the basis of religious status.'" This contradiction is hardly subtle, and it was this very issue which contributed to two of the most important precursors to the First Amendment, by the originators of that Amendment.

Thomas Jefferson drafted The Virginia Statute of Religious Freedom in 1777 in which he explicitly repudiated the behavior of the Roberts Court:
...to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor...is withdrawing from the Ministry those temporary rewards, which...are an additional incitement to earnest and unremitting labours for the instruction of mankind...is depriving him injuriously of those privileges and advantages, to which, in common with his fellow citizens, he has a natural right...that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty...we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
James Madison drew on this document in his Memorial and Remonstrance Against Religious Assessments, which he drafted in 1785 as a protest against a Bill which would levy taxes to support the clergy:
We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance...If “all men are by nature equally free and independent,” all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of Conscience.” Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us...As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions.
Note that Madison here uses the explicit language of contemporary legislation: "free exercise", which is extended to all by Constitution and natural rights, and the violation of free exercise by the grant of "exemptions", which in terms of contemporary cases is literally the means by which a great of funding of the clergy is obtained by the state. Thus the two principal originators of the First Amendment have argued explicitly against the position taken by the Roberts Court. These passages were mentioned specifically by Justice Black in his 1878 Reynolds decision. Surely they are prominent in Justice Roberts's decisions? But they are not, and indeed they are almost not at all present. In Espinoza there is but a single mention of Madison, and none at all of Jefferson, and this in a footnote, which reads:
It is far from clear that the same objections extend to programs that provide equal support to all private primary and secondary schools. If anything, excluding religious schools from such programs would appear to impose the “peculiar burdens” feared by Madison.
Now here is Justice Roberts writing straightfowardly that Madison would agree with him that raising taxes to fund the clergy is in keeping with Madison's argument against raising taxes to fund the clergy! Not surprisingly, neither Madison nor Jefferson is mentioned at all in Trinity. Clearly Roberts is aware of the intellectual history of the First Amendment, so much so that he is forced to lie to Americans about what it means, and is concerned enough about this to bury it in a footnote. This is what it looks like when a Constitutional democracy goes about the business of denying the rights of its Constitution to its citizens. This is not a theoretical problem, and certainly no hypothetical. This is a real attempt by Justices Roberts, Alito, Gorsuch, Kavanaugh, and Thomas to usurp the authority of the Constitution and to deny Americans their rights - all Americans - of religious liberty. They have been materially aided in this by Justices Breyer and Kagan who voted with them in the Trinity decision. Only Justices Sotomayor and Ginsberg have displayed any fidelity whatever to the Constitution in this regard. Madison, for his part, gave a clear indication of his view of those who would attempt what these Justices have done:
The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.
Those five who have assented to this grave assault on the First Amendment are tyrants, and reason enough to vote for a Senate which would remove them from their positions of false authority.

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