June 30, 2020

THE TERM "ESTABLISHMENT" MEANS SOMETHING:

Supreme Court Strikes Down Montana Blaine Amendment Barring State Aid to Religious Schools: The decision is an important victory against government discrimination on the basis of religion. (ILYA SOMIN, 6/30/20, THE VOLOKH CONSPIRACY)

The decision is a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting. To my mind, that is unfortunate. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive.

While there are a number of complexities in the case, Chief Justice John Roberts' majority opinion effectively captures the main issue:

The Free Exercise Clause, which applies to the States un­der the Fourteenth Amendment, "protects religious observ­ers against unequal treatment" and against "laws that im­pose special disabilities on the basis of religious status." Trinity Lutheran....Those "basic principle[s]" have long guided this Court....

Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the "unremarkable" conclusion 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...."

Montana's no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school "controlled in whole or in part by any church, sect, or denomination." Mont. Const., Art. X, §6(1). The provision's title--"Aid pro­hibited to sectarian schools"--confirms that the provision singles out schools based on their religious character....

When otherwise eligible recipients are disqualified from a public benefit "solely because of their religious character," we must apply strict scrutiny. Trinity Lutheran...

The Blaine Amendment doesn't exclude only those religious schools which fail to meet neutral educational standards, or have some other kind of flaw. They are barred from receiving state assistance for which similar secular institutions are eligible. That is clearly discrimination on the basis of religion, if anything is. 



Posted by at June 30, 2020 3:02 PM

  

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