Getting Some Oral — Episode 1

Espinoza v. Montana Department of Revenue Is a Religion Cage Match

Welcome to “Getting Some Oral,” my humorous dissection of U.S. Supreme Court oral arguments designed for lawyers and lay folk alike. It’s my goal to “bring you into the inner circle” and translate the legal “mumbo jumbo” so you’ll be cooler at the water cooler.

Before I slice and dice the Supreme Court’s oral argument in Espinoza, let me just say that the font required at the top of Supreme Court pleadings (arguments on paper) is absolutely dope. It looks like Ben Franklin did the typeset.

So, anyway….you may know that the 1st Amendment prohibits any law “respecting the establishment of religion,” meaning a state cannot give tax dollars to Joel Olsteen, no matter how confident he makes us that God would deliver that money bountifully back to the treasury.

You may also know, though, that when a state creates a program giving money to a broad category of recipients, such as to all schools, it might be okay if religious schools get cheese, too, depending on where the ends end. In Trinity Lutheran Church v. Comer the Supreme Court held[i] that it was okay for a religious school to get tax dollars, provided it used them for non-religious purposes, such as resurfacing schoolyard playgrounds (thereby ensuring all bullying happens on non-porous surfaces).

In Trinity, the Supreme Court dropped a gem in footnote 3[ii], noting that if you make money generally applicable but then exclude the religious from benefitting, you might violate the 1st amendment clause stopping the government from prohibiting the “free exercise of religion.” (The Establishment and Free Exercise clauses are the Yin Yang Twins of 1st Amendment jurisprudence. For, while you may not establish a religion, you may not stop anyone from TRYING to establish a religion).

This brings us to Espinoza. Check this wild stuff out…

The Montana legislature enacted a tax credit of up to $150 for contributions to non-profit organizations awarding scholarships to students. The legislature had a don’t ask/don’t tell policy on whether the scholarship dollars that resulted were used by recipients to attend religious schools.

The Montana Supreme Court, playing the hypervigilant chaperone, jumped in with its own constitution[iii] because church and state were refusing to maintain the requisite two-foot distance at the dance, and we all know when those two hormonal kids get overly grind-y, Crusades get born.

In its ruling, the Montana Supreme Court struck down the whole tax credit scheme, recognizing presciently that if the religious kids aren’t allowed to attend, maybe its best to cancel the party.

As a starting point, we must all come to grips with the fact Montana often doesn’t make sense. How else do we explain a state with a 3 percent Latino population maintaining a Spanish state motto, “Oro y Plata”? “Cabins for every school of thought” is probably more representative.

But, surprisingly, the Montana legislature’s thought here wasn’t irrational. If you learn nothing from this post, emblazon in your memory banks that the Founders designed Bill of Rights protections to restrict only unsavory governmental actions, not private ones (to wit, “Congress….shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…”) In other words, if you ask yourself, “Am I a Congress?” and you can truthfully answer no, you can usually knock yourself out with your religion establishing and prohibiting.

The Montana legislature isn’t stupid. It knows that if it gives a tax credit for people who put a big pile of money on the table without preconditions, and then let anybody who comes by to pick it up and use it anyway he/she wants, well, where’s the government action?!?

The legislature also knows that a common theme in 1st Amendment constitutional law surrounds “viewpoint discrimination,” which says that you don’t have to give away free government swag, BUT if you do, everybody gets a tote bag. You can’t only give them to the non-homeschooled kids.

At this point, you might be asking, “Okay, well, if Montana ended the tax credit scheme, where’s the harm? Nobody gets the money, so how can there be any viewpoint discrimination?”

I don’t want to make you regret not going to law school again, but you raise an outstanding question.

Another great question, though, is if every choice but a religious one is legit, how isn’t that discrimination against religious conduct or beliefs?

When the Supremes gave Espinoza oral, this was so much on their minds, we might not reach the merits of this quirky case.

The intellectual Charlie’s Angels of the Court — Justices Ginsburg, Sotomayor, and Kagan — chomped down on whether the plaintiffs, who are the parents of students whose kids lost scholarships, had “standing.”

Under our Constitution, federal courts are of “limited” jurisdiction, meaning they aren’t the People’s Court. They don’t get to take every case that makes for good TV.

The first thing federal courts don’t do is let everybody come at them. A litigant has to be the injured party. If your ex-husband defrauds your father, you don’t get to sue on his behalf after he told you not to “make a federal case out of it.” Federal courts also ignore anybody whose gripe consists principally of “I’m a taxpayer!” If you don’t like the U.S. government paying for tanks with your taxes, we want you to write Congress, not file a cert petition. Otherwise, the Supremes would spend hours daily in oral arguments, and if you’ve checked their ages, you know that would be a ton of bathroom breaks.

If you don’t have “standing” you need to be sitting down. Or as the Notorious RBG once said, “This is an A and B conversation, and you need to C your way out of it.”

Anyway, the complaining parents ARE right. They lose scholarships on which they relied to pay for private, religious schools. But the question is whether, in the absence of a law that treats religious and non-religious students differently, the harm is cognizable (one for which a legal remedy exists).

As the plaintiffs argued, if a state ever starts a thing and then takes it away solely because somebody uses it to benefit a religion, a constitutional violation follows because the ONLY reason it ended was to stop the religious people from getting the benefit.

This is quite a whipsaw predicament, and if I were an atheist thinking through long-term repercussions, I might yell, “Sweet Jesus!” right now.

A state legislature hellbent on benefitting religious schools[iv] can craft a two-step-removed-from-government-action prophylactic, and when its state supreme court decides to…um…constitution block, the U.S. Supreme Court might go, “Guess what? You’re stuck with this baby now!”

I can only hope my thirteen-year-old never listens to Espinoza. It is the greatest argument against trying something new that I’ve ever seen.

[i] “Held” is the word lawyers use to describe a court’s rulings because “said” seems too gossipy. “Mmmm, gurrrl, I heard the Supremes said Wainright better get that boy a lawyer!” Also, saying a court “held” something seems more somber and conjures images of nine justices huddled wise person-like around a cooing precedent wrapped in swaddling clothing.

[ii] Supreme Court footnotes are A-MAZ-ING because they’re usually where the justices vent passive-aggressive shit toward unlike-minded peers without calling them out by name. They’re loaded with sarcastic, attention-grabbing comments you’d hear a drunk guy make standing in the middle of a crowded cocktail party. (Look for Justice Cavanaugh to use these, like, A LOT). Also, since footnotes almost never relate to the actual case, it’s where justices drop breadcrumbs asking litigants to try to overrule precedents while trying to act slick. You get comments like, “Not that it matters remotely in this case, but saying, as litigants to do here, that there is a right to privacy even though the word doesn’t even appear in the Constitution is some spicy garbage. If there were ever an opportunity to revisit a “seminal” case (Double meaning! Wink, wink!) I’d be all over overturning that!”

[iii] Section 6 of the Montana Constitution says this: “The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

[iv] Almost all private schools in Montana are religious, so yeah, that was precisely what they wanted to do…because re-election.