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Watching as the Supreme Court Vandalizes the Wall of Separation

January 22, 2020

The Supreme Court today heard oral arguments in the case of Espinoza v. Montana Department of Revenue, marking what seems likely to be the next stage in the brick by brick dismantling Thomas Jefferson’s wall of separation between church and state. While waiting for the transcript of the oral arguments (and it seems possible that may be delayed as it needs to be approved by the justices, and Chief Justice Roberts apparently has commitments elsewhere on Capitol Hill at the moment), it’s important to look back at what this case is, and what it isn’t.

Montana’s legislation created a scheme whereby residents of the state could donate money to a state administered scholarship fund, in return for a dollar-for-dollar tax credit from the state. So the “donation” doesn’t end up costing the Montanan anything; what it does is reallocate money the person would have paid in taxes to this scholarship fund. The state government would then award scholarships to children going to private schools. In Montana, as in much if not all of the country, the overwhelming majority of private schools are religiously based.

In effect, the scheme allowed Montanans to allocate a certain amount of their taxes to a program that would, in the vast majority of cases, pay for children to attend parochial schools. The Department of Revenue saw a constitutional problem with funding religious schools, and so determined that religious schools could not participate. The Montana court system, doing its job, examined the law, paying particular focus to the issue of funding religious schools, and declared that the program violated Montana’s constitution, which includes a No-Aid clause. 38 of the 50 states have these provisions, which unequivocally state that no public money shall be used to support sectarian organizations.

You’d think that would be the end of it—there is no Montana tax credit scholarship program anymore, so how can a program that no longer exists possibly discriminate against religious folks? Unfortunately, that line of logical thinking has no place in today’s legal world. Religious-right groups challenged this decision, claiming that cancelling the whole program discriminates against religious schools. And, for reasons that to me can only indicate a deeply ingrained bias in favor of religion and religious organizations, the Supreme Court agreed to hear the case.

What the Court has done by letting this case continue represents vandalism of our legal system. If there is no program, there is no discrimination, and there is no person sufficiently harmed to have standing in a federal court. But here we are, and we stand on the brink of a further, greater act of vandalism.

CFI, seeking to protect the separation of church and state, filed an amicus brief in this case along with some of our allies in the secular movement; the Freedom from Religion Foundation, American Atheists, and the American Humanist Association. The brief, which can be read here, argues forcefully that the program Montana wanted to impose would compel non-religious citizens to financially support religious schools, a fundamental contradiction to the true meaning of religious freedom. “Every Montana citizen has the right not to be taxed to fund religion,” the brief states. This is the view held by the Founding Fathers and by the Supreme Court’s reading of the First Amendment for decades.

It appears likely, though, that the Supreme Court, which ruled in 2003 in Locke v. Davey that a state could exclude devotional degrees from a program of state support for students, will reverse itself. Since that decision, the Court has seen the addition of Justices Kavanaugh and Gorsuch, who have not seen a handout of government money to religious groups that they can’t justify. If, as expected, the Court finds that religion was discriminated against here, and that Montana is compelled to re-establish its program and funnel taxpayer money to parochial schools, the floodgates will be open. Such a decision, as noted, could threaten the “No-Aid Provisions” in 38 states across the country.

When the Court, in Trinity Lutheran case, ruled that a church could not be excluded from a state program to resurface playgrounds because they were a church, it made a point of noting that it was not requiring the funding of religious activities. Religious schools, on the other hand, are clear that their purpose is explicitly religious. This isn’t about funding a jungle gym, it’s about funding science classes that indoctrinate children with the notion that the earth is 6,000 years old, and social studies classes that preach that America was founded as a Christian nation and that homosexuals are the downfall of society.

The religious right should be careful what they wish for, though. If taxpayers are funding private, parochial education, then the clamor for taxpayers to have a supervisory role on those private schools can only grow. You can’t raid my wallet and then deny me the right to weigh in on how it is spent.

And on a broader scale, it is no secret that the countries of Europe, often with fully established churches, and with open government funding of religious schools, are far less religious than the United States. Jefferson’s separation of church and state hasn’t just protected society from religious control, it has protected religious groups from becoming unpopular, ineffective, and supervised wings of the state.

So now we wait for the transcript, and then the decision. None of us is particularly hopeful that the Supreme Court will do what is categorically the right (and constitutional) thing and prevent non-religious Americans from being forced to finance religious schools.