The other day, when Chief Justice John Roberts dove through a loophole to create the majority that threw out the Louisiana anti-choice law, I said that he can take his institutionalist side out for a walk occasionally because what he really cares about is deregulating business and demolishing voting-rights legislation. Those are the rocks on which he built his church. Which is appropriate because I forgot a third area on which Roberts is immovable—being a trad Catholic to his bones. On Tuesday, that part of him to the Establishment Clause. , Roberts hauled the public treasury up to the sacristy and dumped it in. From Reuters:
In a 5-4 decision with the conservative justices in the majority and the liberal justices dissenting, the court backed a Montana program that gave tax incentives for people to donate to a scholarship fund that provided money to Christian schools for student tuition expenses. The ruling, written by Chief Justice John Roberts, represented the court's latest expansion of religious liberties, a priority of its conservative majority in recent years. The court sided with three mothers of Christian school students who appealed after Montana's top court invalidated the tax credit for violating the state constitution's ban on public aid to churches and religious entities. Thirty-eight states have such constitutional provisions. The justices faulted the Montana Supreme Court for voiding a taxpayer program merely because it can be used to fund religious entities, saying such action violates the U.S. Constitution's First Amendment protection for the free exercise of religion.
In addition to removing a brick from the wall of separation between church and state, this decision also opens the doors wide for state and local school budgets to be looted by fly-by-night educational scams like those beloved by the inexplicably still employed Secretary of Education, Betsy DeVos, as long as said scams have the aroma of incense to hide the stench.
im电竞官网-At issue was a workaround devised by the Montana legislature to get around a provision in that state’s constitution that forbids state aid to religious schools. The legislature decided that residents could get a tax credit by contributing to a “scholarship fund” of which most of the beneficiaries attended various Christian schools. (It’s Montana, folks.) The Montana supreme court, which can see a church by daylight, threw the program out in 2018 as a violation of the state constitution’s prohibition. As Mark Joseph Stern writes at Slate, the Court has been sliding inexorably toward this position
im电竞官网-Further, in his reasoning on Tuesday, Roberts turns the conception of “religious freedom” on its head. He wrote:
“Furthermore, we do not see how the no-aid provision pro- motes religious freedom. As noted, this Court has repeat- edly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and reli- gion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a gov- ernment program. But we doubt that the school’s liberty is enhanced by eliminating any option to participate in the first place.
However, as Justice Stephen Breyer noted in his dissent, using public money for religious purposes was precisely the issue on which James Madison and Thomas Jefferson based their thinking that eventually produced the First Amendment. In his dissent, Breyer reminded the majority that Madison first came to prominence for his Memorial And Remonstrance Against Religious Assessment, an attack on the Virginia legislature’s attempt to tax every citizen for the support of the Anglican church in that colony. Breyer wrote:
The leading figures of America’s Enlightenment followed in the footsteps of those who, after the English civil wars, came to believe “with a passionate conviction that they were entitled to worship God in their own way and to teach their children and to form their characters in the way that seemed to them calculated to impress the stamp of the God-fearing man.” But the bitter lesson of religious conflict also inspired the Establishment Clause and the state-law bans on compelled support the Court cited in Locke...In his Memorial and Remonstrance...James Madison argued that compelling state sponsorship of religion in this way was “a signal of persecution” that “degrades from the equal rank of citizens all those whose opinions in religion do not bend to those of the Legislative authority.” Even among those who might benefit from such a tax, Madison warned, the bill threatened to “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced among its several sects.” The opposition galvanized by Madison’s Remonstrance not only scuttled the Assessment Bill; it spurred Virginia’s Assembly to enact a very different law, the Bill for Religious Liberty drafted by Thomas Jefferson.
It is true that Roberts didn’t go as far in his opinion and Justices Samuel Alito and Clarence Thomas did in their concurrences; Alito summoned the image of 19th Century anti-Catholic nativism and Thomas did everything short of donning a tunic and marching to Jerusalem. But the decision is still something of a landmark, like one of those “Falling Rocks” signs you see on the highways in the mountains.