I know I’ve written about this general topic before, maybe for my private journal or maybe published, so forgive me if this is plowing old ground.
Mark Movesian at the St. John’s Law School Center for Law and Religion blogs at the Law and Religion Forum that he thinks the petitioner will prevail in Espinoza v. Montana Dep’t of Revenue, a case wherein the Montana Blaine Amendment led the state Supreme Court to invalidate an entire, modest program of state aid to private schools, including religious schools, but (let us presume, as it appears to be true) “wholly as a result” of parents’ “genuine and independent choice” (two criteria of a prior Supreme Court precedent).
That’s a mouthful I know. Here’s a longer, more relaxed account.
Because the Supreme Court took the case, I think Movesian is correct about the outcome: if the court wasn’t inclined to overrrule the Montana Supreme Court, it could have just rejected the case.
I hope Movesian is correct that the decision will be a shot across the bow of states that retain Blaine Amendments, rather than a vehicle to invalidate all Blaine Amendments. I hope that because, in my mind, it would be “conservative” judicial activism to rule more broadly (more correctly, it would require a whole lot of ‘splainin’ why it wasn’t judicial activism to persuade me).
I’m a strong advocate of religious freedom in an expansive sense, including some instances where some people would contend that one’s religious freedom causes harm (usually, “dignitary” harm) to another. Consequently, I detest Blaine Amendments’ typical operations today.
But the outcome in Montana is that religious parents and parochial schools are not being treated any differently than “secular” parents and their private schools. If I was a Montana legislator, I might be mad at my Supreme Court for striking down the program, but were I a Montana judge, I might well have found it the best balancing of my state Blaine Amendment’s ban with federal equal protection requirement to strike down the whole law, just as Montana’s Supreme Court did.
The best argument I can see for petitioner Espinoza is that “but for” (a causal connection) the state Blaine Amendment, the whole program would have stood and dollars could be going to the religious school of my preference — an argument that, lacking a complaint of unequal treatment, I find too weak, given my current ignorance of the arguments in the briefs.
Maybe my hesitation means I’m, oh, I dunno, a temperamental conservative or something,
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In the fearful day of judgment, O Lord, forgive my prissy efforts at purity.