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Shorter John Roberts: The Establishment clause violates the free exercise clause

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Despite the 3 recent partial or total victories in important cases, the Roberts Court is really awful, and today brought us one of its lower points. The constitution in that famous hotbed of elite coastal secularism, Montana, has a provision that bars state funds from being used to subsidize religious organizations. Based on that clause, the state Supreme Court struck down a modest tax credit that could be used for either secular or sectarian private schools, making it available to neither. The Supreme Court that in doing so, the state court violated the Free Exercise clause. The very big and indeed dispositive problem with this is that the court treated religious and non-religious schools exactly the same, and since Montana is not required to offer any school choice tax credits at all that should have been the end of the case. And, in addition, there would be nothing wrong with the state funding secular but not religious schools; the fear of excessive entanglement between church and state is literally the first clause in the Bill of Rights.

Mark Joseph Stern explains the roots of this remarkable and ridiculous opinion:

How did the court chart this catastrophic course? The barrier between church and state took a hit when five justices permitted state financing of sectarian schools in Zelman. It nearly collapsed when the court expanded religious institutions’ access to taxpayer money in 2017’s Trinity Lutheran v. Comer, which held that states cannot deny public benefits to religious institutions because they are religious. The court claimed to find this dangerous rule in the First Amendment’s free exercise clause—even though, as Sotomayor pointed out in her searing dissent, separating church and state does not limit anyone’s ability to exercise their religion. She closed with a warning: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.”

Tomorrow has arrived, and it is as absurd as Sotomayor predicted. Roberts’ majority opinion follows Trinity Lutheran to its logical, outrageous conclusion: A state violates free exercise, the chief justice wrote, when it “discriminate[s] against schools” based on “the religious character of the school.” The government, Roberts explained, has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers’ right not to fund religious exercise that infringes upon their own beliefs. “We do not see how the no-aid provision promotes religious freedom,” the chief justice wrote tersely.

In the wake of June Medical Services, you will definitely hear some Savvy Punditry praising Elena Kagan for joining a godawful Alito dissent to display her fealty to stare decisis for her strategic cunning. But I would be very careful before imputing any causal effect to this stuff. After all, Trinity Lutheran was another one of Breyer and Kagan’s shows of strategic pragmatism, as Kagan joined Roberts’s atrocious opinion and Breyer filed a concurrence saying that he agreed with most of it, presumably in the hope that this show of good faith would prevent Roberts from taking its reasoning to its full logical conclusion. It’s safe to say that it didn’t take. I see these strategic feints as being the equivalent of baseball managers overusing small-ball tactics because they like to feel like they’re in control of the action. It’s overwhelmingly likely that Roberts voted as he did in June Medical Services for his own reasons, not because of any superficial show of good faith from Kagan or Breyer.

It’s also worth remembering, in light of Gorsuch’s Bostock opinion, that while his, ah, idiosyncrasies mean that he’s more likely to be a swing vote for the liberals than a dreary party-liner like Alito, it also means that you’ll get lots of truly deranged shit from him. Today, he joined Clarence Thomas’s crusade to stop the Establishment Clause from applying to the states at all. 3 votes away from the Christian-hold-the -Judeo Church of Alabama!

…via Texas Law’s Liz Sepper, this is a great article about how badly Breyer and Kagan keep getting rolled. I might to a separate post about it later this week.

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