United States Senate [Public domain]

January 22, 2020; Vox and SCOTUSblog

A highly anticipated Supreme Court hearing on public funding of religious schools is now waiting for a decision. The outcome is no sure thing, and Chief Justice John Roberts is once again seen as the swing vote.

The case, Espinoza v. Montana, was brought by three parents who were unable to apply for state scholarship funds for their children to attend religious schools. The Montana Supreme Court had invalidated the entire program, which had been established by the state legislature, saying it conflicted with the state constitution’s ban on aid for churches and religious schools. The parents argue they were being discriminated against for religious reasons; the Montana court says using public funds to pay for religious education is unconstitutional. With two provisions of the First Amendment in tension, the case was eventually appealed to the Supreme Court.

The concern in this case swings in two constitutional directions, both contained in the First Amendment. As Ian Milhiser writes for Vox, “The Free Exercise Clause limits the government’s ability to deny some benefits to people of faith. The Establishment Clause restricts the government’s ability to advance religion.” Here, both are in play.

The conundrum before the Court was as clear, as was the split among the justices. The stance of the three more liberal, female justices was that there was no reason to even argue the case, since the parents had no standing, as they were not harmed. The funds went to the schools, not the parents, leaving the plaintiffs, as Justice Sotomayor suggested, “like, three levels removed.” They aren’t the taxpayers receiving the credits, they aren’t the schools receiving the money from the state, and there is no guarantee that their children would receive scholarships.

Sotomayor was joined in this point by Chief Justice Roberts. “The injury in this case,” Roberts said, “flows through the schools, because the money goes to the schools, rather than the parents. And there are no schools in this case.”

Based on this, could this case be moot?

On the other side, Justices Alito and Kavanaugh see this as a case of religious discrimination. While Gorsuch spoke little, and Thomas not at all, Kavanaugh argued that Montana’s constitution provision was put in place to “advance grotesque anti-Catholic bigotry.” (Now, if he was referring to the 19th century Blaine Amendment, he’d be right, but the act under scrutiny here was enacted in 1972. Still, he made his point.)

Justice Stephen Breyer argued that a ruling for the plaintiffs in this case might undermine public education. Mandatory state funding of religious schools, according to Breyer, would undermine the Constitution’s Establishment Clause. It was Roberts who asked the plaintiffs’ lawyers to respond to Breyer’s concerns.

What will happen with Espinoza? If Roberts joins with the liberal justices, the case could be dismissed on the grounds that the plaintiffs do not have standing. If the case remains active for the Court to deliberate, and the Chief Justice joins with the conservatives on the Court, it is likely to be on very narrow grounds, as he seemed to agree with Breyer that mandated funding of private and religious schools is not acceptable. While it might be a victory for the religious right, it would be a very tiny one. Now, we wait until summer for an answer.—Carole Levine