The U.S. Supreme Court handed down an alarming decision June 30 on school voucher programs that imperils true religious liberty, asserts the Freedom From Religion Foundation.
“The ruling eviscerates a founding principle of our secular republic — that citizens must not be taxed to support religion, including religious schools,” comments FFRF Co-President Annie Laurie Gaylor. She adds that the ruling would appear to severely undercut specific safeguards in state constitutions prohibiting the union of state and church.
In Espinoza v. Montana Dept. of Revenue, the Supreme Court overturned a ruling by the Montana Supreme Court, which held that a neo-voucher school funding scheme violates the “No Aid” to religion clause of the state Constitution. The state court struck down the entire neo-voucher scheme as it applied to all private education, religious and secular. Nearly 90 percent of Montana’s private schools are affiliated with religion. Christian parents, represented by the pro-voucher Institute of Justice, appealed to the U.S. Supreme Court, asking it to declare that No Aid clauses violate the federal Free Exercise Clause of the First Amendment to the U.S. Constitution.
In The New York Times, reporter Adam Liptak wrote: “Montana’s Constitution, like those of many other states, restricts government aid to religious groups. Those provisions, often called Blaine amendments, were initially adopted in the 19th century and often had the goal of restricting funding for Catholic schools. Of the 37 states with Blaine amendments, 14 have strict prohibitions on the participation of religious schools in state programs.”
But, the Supreme Court, in a 5-4 decision written by Chief Justice John Roberts, illogically ruled that religious schools were indeed being singled out.
“A state need not subsidize private education,” the majority judgment states. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The absurdity of the majority decision is laid bare in a dissenting opinion. Justice Ruth Bader Ginsburg, joined by Justice Elena Kagan, points out that the Montana Supreme Court had made no distinction between religious and nonreligious schools in a previous ruling.
“Because Montana’s Supreme Court did not make such a decision — its judgment put all private school parents in the same boat — this court had no occasion to address the matter,” the dissent states. It adds: “The state court struck the program in full. In doing so, the court never made religious schools ineligible for an otherwise available benefit, and it never decided that the Free Exercise Clause would allow that outcome.”
Justice Sonia Sotomayor has a stinging dissent of her own.
“Today’s ruling is perverse,” she writes. “Without any need or power to do so, the court appears to require a state to reinstate a tax-credit program that the Constitution did not demand in the first place. [The court] rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints.”
FFRF had filed an 18-page friend-of-the-court brief in November cogently arguing that true religious liberty would be endangered if the court strikes down the provision of Montana’s Constitution that prohibits funding religious education.
“Religious liberty is imperiled in this case,” its brief asserted. “This case is not about discrimination [against religion]; it is about government-compelled support of religion. Every Montana citizen has the right not to be taxed to fund religion. If this court abandons this basic principle, we will have reached a disastrous moment in American history: the era of government-compelled tithing.”
Also in her dissent, Sotomayor added that the decision by the court “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
FFRF agrees with Sotomayor, as this misguided decision deals a great blow to the separation of state and church, as well as the sovereignty of states to govern according to the will of their citizens. It virtually guarantees that citizens of the more than 30 states whose constitutions included No Aid to religion clauses may be taxed in order to support religious schools at some point in the near future, regardless of their own views on religion or which religious denomination they may belong to. The 26 percent of nonreligious taxpayers will be injured the most.
James Madison, later the architect of the Constitution and Bill of Rights, famously defeated a Virginia proposal in 1785 to pay the salary of Christian teachers, calling even a three-penny tax on citizens supremely immoral. The No Aid language in many state constitutions dates to the Virginia Statute for Religious Liberty of 1786, written by Thomas Jefferson, who deemed it “sinful and tyrannical” to tax citizens to support ministries or religious schools.
The Supreme Court’s decision does not address whether some restrictions placed on funds going to religious schools would pass constitutional muster. States may still be able to restrict funding on the basis of “religious use.” For example, a restriction on direct funding of religious education classes may be permissible.
An ironic additional consequence of such a ruling may be to bring down regulation on churches and religious schools due to the flow of public money into religious schools. In short, the judgment in favor of the plaintiffs will negatively and fundamentally alter the state-church relationship in place since the nation’s founding.
FFRF decries the high court’s blow to our secular public school system in order to fund religious institutions.