Editor's Note :

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We're currently hosting a symposium on Tuesday's decision in Espinoza v. Montana Department of Revenue. Click to follow along.
We also hosted a symposium on Monday's decision in June Medical Services v. Russo. Click to read the submissions.

Briefly Mentioned :

Briefly Noted :

On Thursday, the court released orders from the July 1 conference. The justices granted five cases for a total of four hours of oral argument next term.
On Monday, we expect the court to release opinions at 10 a.m. We will be live-blogging starting at 9:20 a.m. at this link, where you can sign up for an email reminder when the live blog begins.

This week at the court

By on Jul 5, 2020 at 12:00 pm

On Monday, we expect the court to release opinions starting at 10 a.m.


Tonight a divided Supreme Court granted a request by Alabama to temporarily freeze a lower-court ruling, issued as a result of the COVID-19 pandemic, that would make it easier for voters in the state to cast absentee ballots in the state’s upcoming primary election runoff, which is scheduled for July 14. By a vote of 5-4, the justices put the order by a federal district court in Alabama on hold while the state appeals to the U.S. Court of Appeals for the 11th Circuit and, if necessary, the Supreme Court. The court’s four more liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicated that they would have allowed the balloting accommodations to remain in place. Continue reading »

James Hirsen is an attorney, author, commentator and former professor at Trinity Law School. He filed an amicus brief on behalf of the Justice and Freedom Fund, Institute for Faith and Family and North Carolina School Choice in support of the petitioners in Espinoza v. Montana Department of Revenue.

The Supreme Court’s decision in Espinoza v. Montana Department of Revenue will shape how the First Amendment’s religion clauses apply to state and local restrictions on how public money is spent. In particular, the decision drastically limits the scope of one type of restriction that states have employed for more than a century.

The factual background of Espinoza may at first blush appear innocuous. The Montana legislature established a modest tax credit scholarship program, which conferred a benefit to those who donate to organizations that, in turn, grant scholarships to elementary school students. Kendra Espinoza sought to utilize the state’s program to send her two daughters to a Christian school. Continue reading »

With the 2019-2020 Supreme Court term coming to a close, the discussion among court-watchers continues to focus on Chief Justice John Roberts’ decision-making. Much has been made of his siding with the more liberal justices in striking down a Louisiana abortion law in June Medical Services LLC v. Russo and upholding the Deferred Action for Childhood Arrivals program (at least temporarily) in Department of Homeland Security v. Regents of the University of California. Roberts’ positions in these cases surprised many, and for good reason: He wrote a strongly worded dissent in June Medical’s precursor case, Whole Woman’s Health v. Hellerstedt, and authored the majority opinion upholding President Donald Trump’s travel ban over the dissent of the four more liberal justices in Trump v. Hawaii. Continue reading »

Posted in Featured

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices granted five new cases, for a total of four additional hours of argument. The biggest news from the order list was the announcement (which I covered in a separate post) that the court will weigh in on whether the Department of Justice must disclose secret materials from Special Counsel Robert Mueller’s investigation to the House Judiciary Committee. The remaining new cases, which are likely to be argued in the fall, all involve issues relating to international law and foreign relations. Continue reading »

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices added another high-profile case to their docket for the fall, involving a dispute over efforts by members of Congress to obtain secret materials from the investigation by Special Counsel Robert Mueller. Mueller submitted a report last year to Attorney General William Barr on possible Russian interference in the 2016 election, and Barr released a redacted version of that report in April 2019. In July 2019, the House Judiciary Committee went to federal court in Washington, D.C., seeking an order that would require the disclosure of the redacted portions of the Mueller report, as well as grand jury transcripts and materials that had been kept secret, for use in its impeachment investigation. The committee relied on a provision in a federal rule of criminal procedure that allows a court to authorize the disclosure of grand jury materials that would otherwise be kept secret “in connection with a judicial proceeding.” Continue reading »

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty, which submitted an amicus brief in support of the respondents in Espinoza v. Montana Department of Revenue. 

The Supreme Court’s decision in Espinoza  v. Montana Department of Revenue purports to be “unremarkable,” particularly in light of Trinity Lutheran v. Comer, decided just three years ago. But the multiple opinions – four for the majority and three dissenting opinions – belie that assertion and demonstrate the significance of this case. In short, the Espinoza decision continues a disturbing trend that devalues a core aspect of our religious liberty tradition – the ban on government aid to religion.

By a vote of 5-4, the Supreme Court held that the free exercise clause prohibits Montana from applying its state constitution to avoid funding religious schools through a tax credit program. Montana’s constitution, like a majority of state constitutions, prevents government funding of religion by restricting aid to religious institutions. Typically, such state constitutional provisions are written with more specificity and can be interpreted as more stringent protections for religious liberty than the federal constitution. As Steven Green, the country’s leading legal historian on religious liberty and state constitutions, explains elsewhere in this symposium, the no-aid principle is expressed in a variety of state constitutional provisions.

Continue reading »

Thursday round-up

By on Jul 2, 2020 at 6:42 am

Court-watchers are focusing on Espinoza v. Montana Department of Revenue, in which the court held on Tuesday that Montana’s exclusion of religious schools from a state-funded scholarship program for private schools violates the First Amendment. At Reason’s Volokh Conspiracy blog, Ilya Somin finds it “unfortunate” that the decision was “a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting,” because “[s]triking down blatant government discrimination on the basis of religion should not be so controversial and divisive.” At National Review, Dan McLaughlin observes that “the case also likely marks a long-overdue death blow to openly anti-Catholic Blaine amendments adopted by many states in the 1870s and 1880s and defended by anti-religious progressives and public-school teachers’ unions to this day.”  In an op-ed for The Washington Post (subscription required), Adam Laats argues that the historical analysis in Espinoza ignores “the basic provision enshrined long before the 1870s: American public education should use tax dollars to teach children how to read, write and become better citizens, not to teach them any religious ideas.”

Continue reading »

Posted in Round-up

Thomas Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas (Minnesota). Douglas Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia. They filed an amicus brief on behalf of a number of religious and school groups in support of the petitioners in Espinoza v. Montana Department of Revenue.

Tuesday’s ruling in Espinoza v. Montana Department of Revenue came as no surprise. The Montana Supreme Court had invalidated a state tax credit for donations to organizations supporting students in private schools, solely on the ground that some schools benefiting from the program would be religious. The state court relied for its authority on a state constitutional provision that singled out religious schools for exclusion from generally available funding, however indirect. The U.S. Supreme Court held that this discrimination against religious schools and families who choose them violated the First Amendment’s free exercise clause.

Espinoza continues the court’s strong trend upholding, and now even mandating, equal access to government benefits for religious, as well as secular, service providers. We write to explore what Espinoza suggests for future disputes over funding of religious service providers, and for other questions about the religion clauses. Continue reading »

Grant T. Sullivan is an assistant solicitor general with the Colorado Attorney General’s office, which filed an amicus brief on behalf of nine states in support of respondents in Espinoza v. Montana Department of Revenue. The views expressed in this post are solely those of the author and should not be imputed in whole or in part to any other state or state official unless expressly endorsed by an authorized representative of the state.

For state policymakers, crafting sound (and constitutional) education funding policies that support some level of parental choice at private schools—whether religious or secular—has always been challenging. Take too heavy a hand in providing state funds to religious schools and the state may encroach on the establishment clause. But fail to treat religious schools similarly in the state’s funding programs and the state may run afoul of the free exercise clause.

This tension has long been recognized in the Supreme Court’s decisions addressing the interplay between the competing religion clauses. To counteract that tension, the court has historically granted some deference to state decisionmakers in striking this delicate balance. States are afforded “play in the joints,” the court has explained, between the establishment clause’s and the free exercise clause’s competing principles.

Continue reading »

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