Your Rights Don’t Depend on the Order of Paragraphs

Anthony Sanders · July 2, 2020

Judicial engagement requires meeting the Constitution head-on. Judges, after all, are duty bound to interpret the law, not avoid it. It is therefore gratifying to see an example of judicial engagement with a constitutional problem where avoiding it (and hoping it would go away) would have been the easy option. That happened on Tuesday in Espinoza v. Montana Department of Revenue at the U.S. Supreme Court. That is IJ’s school choice case about Montana’s tax-credit scholarship program. The Court reversed the Montana Supreme Court and held it is unconstitutional to exclude parents from the program if they send their children to religious schools.

But it was a  close-run thing. This was not just because of a difference of opinion on whether that exclusion violated the First Amendment’s Free Exercise Clause. It was also due to a difference of opinion on whether the U.S. Supreme Court could even address the issue in the first place. The Court’s opinion gives me the chance to examine a couple ways that courts can evade their duty to rule on constitutional claims. One is very specific to this case, but important. That’s that the argument that the Montana Supreme Court essentially mooted the case by getting rid of the entire program, not just for religious schools but all private schools. The other is an all-too-common occurrence, the question of whether a claim is “facial” versus “as applied.”

Before we get to what happened on Tuesday on the merits, let’s move out to the Treasure State and start at the beginning.

In 2015 the Montana Legislature adopted a modest school choice program. It allowed Montana taxpayers to take a credit of up to $150 by contributing that money to private scholarship organizations. Those organizations, in turn, could provide scholarships to children to attend the private K-12 school of their choice. The legislation allowed families to use the scholarships at both religious and secular private schools.

However, the Montana Department of Revenue had other ideas. It issued an administrative rule that the scholarships could only be used at secular private schools because it believed that allowing parents to use them at religious schools would violate the state constitution. Most relevantly, the Department pointed to the Montana Constitution’s “Blaine Amendment,” that contains language preventing state funds from going to religious institutions.

IJ’s clients, who wanted to use the scholarships to send their children to a religious school, then sued the Department, arguing that the rule was unlawful as it conflicted with the statute the Legislature had passed, that the text of the Blaine Amendment did not prohibit the parents from using the scholarships at religious schools, and that even if the Blaine Amendment did require such exclusion, it would violate various provisions of the federal and state constitutions, including the federal Free Exercise Clause.

At the trial court level the court took the most direct, and least confusing, route. It simply said the rule conflicted with the statute and held it was invalid. It also said the rule did not conflict with the Blaine Amendment because the program concerned tax credits, not state funds. It therefore did not address the alternative arguments the parents made on whether the rule and the state constitution conflict with the U.S. Constitution.

Simple, right? Well, that didn’t last. At the Montana Supreme Court the court’s majority ruled that providing tax-credit scholarships to religious schools did violate the Blaine Amendment. It then said three things that are relevant here: (1) the Blaine Amendment did not allow any “indirect aid” to go to religious schools (even though the aid went to parents and came from tax credits) and therefore made the entire program unconstitutional, (2) this made the rule superfluous, but in any case it wasn’t legal under Montana administrative law, and (3) that in this case the court’s holding on the Blaine Amendment did not conflict with the federal constitution, including the federal Free Exercise Clause. That last piece was by no means deep, but the court did do it (as it should have; the parents raised the argument—in the context of the rule they were attacking—both in their complaint and in their brief to the court): “Although there may be a case where an indirect payment constitutes ‘aid’ under [the state Blaine Amendment], but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases.”

The upshot of all this was the entire program, even for secular schools, was invalidated because it was unconstitutional to permit families to choose religious schools under the state constitution and there was no mechanism under the statute passed to ensure funds only went to secular schools.

Fine, you might say, but what does this have to do with judicial engagement (and not just an incorrect interpretation of constitutional language)? Just ask the U.S. Supreme Court to rule that the Montana Supreme Court’s holding under the federal constitution is wrong, and that will mean the scholarships can start again, for children attending both religious and secular schools, right?

That would have been true, but for a clever argument that the Department tried.

When the case got to the U.S. Supreme Court the Department argued there was nothing for the Court to do. Even if it would create a problem under the Free Exercise Clause if a state allowed for tax-credited scholarships to go to children who went to secular private schools but not religious private schools, the Montana Supreme Court had fixed that problem by ending the entire program. The program now treated everyone equally (by not existing). Essentially, the Department argued the case was moot.

But what about the Montana Supreme Court’s holding that the state constitution did not violate the federal constitution? Exactly. In his opinion for the Court, Chief Justice Roberts swiftly disposed with the Department’s argument. He explained

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.

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, 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” 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.

What’s surprising is not that the Court’s majority rejected the Department’s assertion that the case was over because the lower court had ended any discrimination but that three of the four dissenting justices agreed.

In her dissent, which Justice Kagan joined, Justice Ginsburg asserted that the Montana Supreme Court invalidated the program entirely, and therefore there was no discrimination, and nothing to review. To get around the majority’s explanation that the Montana Supreme Court’s “error of federal law occurred at the beginning,” Justice Ginsburg argued that the timing of the lower court’s ruling was otherwise: “The Montana court determined that the scholarship program violated the no-aid provision because it resulted in aid to religious schools. Declining to rewrite the statute to exclude those schools, 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.”

What about the Montana court’s statement that this was not “one of those cases” that offends the Free Exercise Clause? Justice Ginsburg attempts to explain it away in a footnote: “In its opinion, Montana’s highest court stated without explanation that this case is not one in which application of the no-aid provision violates the Free Exercise Clause. When the court made that statement, it had already invalidated the entire scholarship program. Accordingly, the court’s statement cannot be understood to have approved of excluding religious schools from an otherwise available scholarship.” (Emphasis added.)

Here’s the difference between Chief Justice Roberts and Justice Ginsburg: Roberts says the federal Free Exercise Clause analysis happened “at the beginning” of its analysis, i.e. before the whole program was thrown out, while Ginsburg says it happened after “it had already invalidated” it.

What’s the right answer between these two approaches? The actual right answer is it doesn’t matter. In a highly technical sense they both have a claim regarding chronology—in the Montana Supreme Court’s opinion the invalidation of the “entire” program occurs in paragraph 39, the Free Exercise Clause analysis is in paragraph 40, and the part that addresses whether the rule itself could stand and thereby save some of the program (for secular schools) is in paragraphs 41-44 (although the court also says this isn’t really needed, because the rule is superfluous anyway).

But (and I can’t believe I have to say this) whether you can get the United States Supreme Court to protect your constitutional rights does not turn on the order of paragraphs! If the Montana Supreme Court had swapped paragraphs 39 and 40, thereby addressing the federal claim before the issue of the “entire” program, it would not have made Roberts more right. And if the court had put the federal analysis way at the end, after even the analysis of the rule, it would not make Ginsburg right and better shield the court’s decision from U.S. Supreme Court review. To even talk about this timing shows how ridiculous it is.

Meanwhile, Justice Sotomayor, in her dissent, claimed the Montana Supreme Court, in fact, did not rule on the parents’ free exercise claims at all. As we’ve seen, this simply is not true, and it also is true (and she doesn’t deny) that the parents have consistently raised those claims throughout the case, whether in the context of the rule (as they did in the state courts) or in the context of the Montana Supreme Court’s actions (as they did at the U.S. Supreme Court after the state supreme court unexpectedly threw the rule—and the statute—out).

Finally, as if the issue of timing wasn’t enough, another hurdle to judicial engagement also reared its head. Both Justice Ginsburg and Justice Sotomayor make much out of the fact that there was no “facial” challenge to the Blaine Amendment at the U.S. Supreme Court, and therefore that the Court can’t review the Montana Supreme Court’s reasoning. Courts, at all levels, often use the “facial” versus “as applied” distinction to avoid addressing people’s claims that the government is violating their rights. “I can’t address that because you made a facial claim” often comes up, but so does “I can’t address that because you made an as-applied claim.” Heads I win, tails you lose.

Fortunately, in this case the majority saw that it’s neither here nor there. Robert’s opinion doesn’t even respond to it. The parents argued that the Blaine Amendment’s application to the program violated the Free Exercise Clause. It doesn’t matter whether that’s labeled “facial” or “as applied” or something else. What matters is whether the Montana Supreme Court’s action violated the U.S. Constitution. It did. And that’s enough.

Judicial engagement—where courts honestly and seriously address constitutional claims—should be straightforward. But so often it only occurs after the most esoteric of fights. Luckily that didn’t defeat school choice this week. Let’s hope it doesn’t for other constitutional rights as well.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.