Quiz #82 The Higher Law vs. the Lower Law

Religion Law Quizzes #82 and #83 are closely related and they (particularly Religion Law Quiz #83) highlight some really important foundational legal principles in federalism form of government.  So, with that in mind, let’s see how you do. 

 

In Espinoza v. Montana Dep’t of Revenue, the Montana Supreme Court had entirely invalidated a scholarship program because the Montana Supreme Court believed it violated the Constitution’s “no-aid” provision which prohibited aid to religious affiliated schools.  On appeal to the Supreme Court the Montana Department of Revenue argued that there was no Free Exercise violation because the program had been wholly eliminated by the Montana Supreme Court.  But the U.S. Supreme Court rejected this argument.  Why did the Supreme Court rule that the Free Exercise Clause had been violated when the Montana Supreme Court had wholly voided the scholarship program? 

 

(Scroll down for the answer)

 

Answer: In a nutshell, the Montana Supreme Court erred by first applying state law rather than federal law.  But even that short anecdotal answer misses some important nuances.  Please read the following four (4) paragraphs from the Supreme Court’s decision. 

 

The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit.

 

Two dissenters agree. Justice GINSBURG reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, post, at 2281, and Justice SOTOMAYOR describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause, see post, at 2292, 2294 – 2295.

 

The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program. 393 Mont. at 466–468, 435 P.3d at 613–614.

 

The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court's error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause,”id., at 468, 435 P.3d at 614, the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana Supreme Court's failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds.

 

Espinoza v. Montana Dep't of Revenue, 207 L. Ed. 2d 679, 140 S. Ct. 2246, 2261–62 (2020)

 

Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

HERE IS AN AI GENERATED SUMMARY OF TODAY’S PODCAST

Welcome to a fascinating episode of the Religion Law Podcast. In this episode, your host, Michael Fielding delves deep into a critical religious freedom case - Espinoza vs. Montana Department of Revenue. This episode not only discusses this case meticulously but also covers the intricacies of the legal principles involved and the impact it has on the federalism form of the government.

The discussion begins with a recap of the case where the Montana Supreme Court had entirely invalidated a scholarship program, which was argued at the United States Supreme Court. The episode seeks answers to why the free exercise clause had been violated when Montana Supreme Court had utterly voided the scholarship program. It is a detailed exploration of the case that significantly contributes to the binding legal prin