This week, the Supreme Court ruled 5 to 4 that prohibiting the use of government funded scholarships and other financial from paying for attendance of a religiously oriented school is unconstitutional, on the grounds that it constitutes religious discrimination against students who are otherwise eligible for the scholarships. A number of comments have been made regarding this ruling, both positive and negative, including commentary from the four dissenting justices. I would like to add my own commentary both on the ruling and on some of the comments.
In my personal opinion, the Supreme Court ruling was correct. There are three parts of the Constitution that address religious freedom. These are generally referred to as the "establishment" clause, the "free exercise" clause, and the "no religious test" clause. The establishment clause, contained in the First Amendment says, "Congress shall make no law respecting an establishment of religion..." This is mildly ambiguous, which is probably why it is so often misinterpreted. The phrase "establishment of religion" is generally interpreted to mean any religious organization, however this is
not how it was intended nor what it actually means in this context. A brief review of the history of the period as well as some of the discussions on the Bill of Rights that occurred during its drafting reveals that the term "establishment of religion" was a reference to the concept of a state
established religion. Thus, the Anglican Church would be an "establishment of religion", but in England, where the Anglican Church is the state religion, the Catholic Church
wouldn't be considered an "establishment of religion". In the U.S., no establishments of religion
exist, because the establishment clause prohibits the establishment of a state religion. Further, this can be verified by the general use of the word "establishment" back when the Bill of Rights was written. In modern times, "establishment" is often used to refer to buildings or organizations that are "established" by individuals. When the Bill of Rights was drafted, "establishment"
did not mean this. It actually referred to a command or organization created or endorsed
specifically by the government. In the context of religion, "establishment" entirely on its own was understood to mean "a single dominant ecclesiastical institution (or religion, church, denomination, faith, sect, creed, or religious society) that enjoyed a government-
preferred, government-
sanctioned, government-
financed, or government-
protected status within a state, and which represented an indistinguishable union with the government and the preferred (or 'established') ecclesiastical institution." (
Source of quotation) Further, "establishment" religions were at least partially run by the government, giving the government operational powers over the religion, including the power to define church doctrine and set church boundaries, the power to control the hiring and religious authority of clergy, the power to build church buildings, the power to fire clergy, and the power to control what rituals and such individual members of the establishment church were allowed to participate in. Governments with establishment religions were also known at the time to exercise powers like requiring civilian attendance of church services, punish citizens who did not attend the establishment church or who openly professed beliefs opposed to those of the establishment church, deny those who were not members of the establishment church government jobs, and suppress dissident movements with fines, bans on the use of civil services, and in some cases imprisonment and even execution. Most of the current Supreme Court Justices are trained as lawyers, not historians, and have little education in the history and intent of the Constitution that is
absolutely critical to understanding it. Instead, they interpret it as they please, without any regard for the
actual meaning. In this case in question, the establishment clause is not even relevant. No state in the U.S. has an established religion, nor does the Federal government or any county or municipal government. Allowing religious schools to accept and benefit from state funded scholarships would only constitute anything
near an establishment of religion if it restricted the scholarships to one
specific religion, and it wouldn't outright violate the establishment clause unless that religion was generally funded and controlled by the state. (One could reasonably argue, however, that providing scholarships to students of one specific religion was a violation of the
intent of the establishment clause, even if that religion wasn't officially owned and controlled by the state. Though it does not explicitly say it, this clause is generally regarded as also meaning that the government may not favor one religion over another.)
Directly following the establishment clause is the free exercise clause, which reads, "[Congress shall make no law...], or prohibiting the free exercise thereof...". This clause was intended to
protect people from religious discrimination by governments. The
correct interpretation, based on historical records, is that the government cannot favor or disfavor people based on religion or religious beliefs. It may not make behaviors illegal that are essential parts of the exercise of a particular set of religious beliefs, with the intent of discriminating against those who participate in those behaviors for religious reasons. There is some ambiguity around this, highlighted very effectively by the outlawing of Mormon polygamy. Specifically, courts ruled that the outlawing of polygamy was legal, on the grounds that it affected everyone not just Mormons. The reality, however, is that this law was
explicitly and deliberately passed with the express intent of discriminating against those of the Mormon faith. Nearly all future rulings on laws infringing on religious exercise rights have either mandated religious exemptions from the law or upheld the law on the grounds that discrimination was not
intended. (Under modern legal precedent, the anti-polygamy law would have been shut down
so hard. It may be important to clarify here that the Church of Jesus Christ of Latter-Day Saints, aka Mormons, abandoned the practice of polygamy over a century ago and no longer practices nor endorses the practice.) So, how is this relevant to the Supreme Court case? It's a little complicated. The first question is, how does prohibiting the use of scholarships to pay for attendance of a religious school violate the free exercise clause? Taking the clause literally, it doesn't. It doesn't prevent people from engaging in religious behavior in any meaningful way. Yes, the scholarships might
facilitate engagement in religious behavior, if attending a religious school is a mandatory practice of that religion, but denying the scholarship does not remove any existing ability to engage in religious exercise. We know that the clause was intended to mean more than its literal interpretation though. It was also intended to prohibit the government for favoring or disfavoring people on grounds of religion. Knowing that many of the Founders of the U.S. were not particularly religious, it should be fairly obvious that this clause wasn't written assuming that 100% of people would have religious beliefs and thus was also intended to protect less religious people equally. In that context, favoring or disfavoring any group on grounds of religious beliefs
or lack thereof is a violation of this clause. And that means that this clause protects religious and non-religious people equally
and by extension it protects religious and non-religious
schools equally. The free exercise clause was actually included in the First Amendment
expressly for the purpose of preventing the kind of religious discrimination that this case is about.
There is one more religious rights clause in the Constitution, the "No Religious Test" clause. Article VI, Clause 3 of the Constitution says, "... ; but no religious test shall ever be required as a qualification to any office or public trust under the United States." This clause is intended to prevent the religious establishment practice of restricting public office holders to members of the state religion. This clause is actually obsolete at this point, as the establishment clause of the First Amendment covers this
and is more broad. As part of the establishment issue, which is irrelevant to the Supreme Court case in question, this clause is also completely irrelevant.
Before continuing on to quotes regarding the case, it is worth noting that the establishment clause
may not be completely irrelevant here, despite what I said. We've discussed the fact that the establishment clause is
not about maintaining some broad distance between the government and religious organizations but is rather about prohibiting a
specific state religion either officially or unofficially. It is
not about keeping the state from
ever doing anything that could benefit religious organizations. There is some ambiguity, however, in what even constitutes religion in this context. For example, are Atheism and Agnosticism religions in this context? Defining religion is generally difficult, but a commonly held definition is a belief or connected set of beliefs regarding the existence of a supreme power. Ideally though, we would consider the definition generally accepted by the Founders, as that would give the most accurate interpretation of the Constitution and Bill of Rights. We can start with the known fact that many of the Founders were not considered "religious". Most notably, Thomas Jefferson was not even considered Christian, but contrary to popular belief now days, he
did actually believe some sort of God existed, but he wasn't overly attached to overt signs of worship. People of that time period generally agreed that Jefferson acknowledged the existence of a God but was otherwise
Agnostic. Agnosticism is a form of irreligiousness. Agnostics generally don't
care whether God exists or not. Agnostics are not Atheists, because Atheists explicitly believe that God
does not exist. Most modern Agnostics
do not believe in God, but they also do not
disbelieve. Atheists
disbelieve. It turns out this is a critical distinction that is not generally appreciated by native English speakers who typically do not understand the difference between passive and active negatives. Disbelief is a
positive belief
against some idea, while merely
not believing is more like having no opinion or position. The reason this distinction is so important is that positive belief defines religious belief, which neutral lack of belief does not. And
that makes Atheism a religion but Agnosticism
not.
However, in the relevant historical context none of that matters. The evidence suggests that they didn't define religion in this way but rather regarded any person's personal opinions on things as that person's religion, which would make Agnosticism
and Atheism apply, and this also extends to secularism. If we interpret the establishment clause with this understanding of religion, we will immediately see that it is fairly likely the Founders would have viewed excluding religious schools while allowing secular schools to participate as a
real establishment of religion, where that religion is secularism, and a quick look at government control and influence on science and secular organizations in general will easily support the idea that we are about half way to the establishment of scientific secularism as the state mandated religion. (The reason we are not already there is things like religious exemptions for things like mandatory vaccination.) The point here is, if we
really consider the history and intent of the establishment clause, there is actually some evidence that it
is relevant here, in ways that further support the Supreme Court's ruling.
Let's start with the majority opinion. Chief Justice John Roberts wrote, "A state need not subsidize private education. But once a state decides
to do so, it cannot disqualify some private schools solely because they
are religious." This is completely in line with the
correct interpretation of the three religion clauses in the Constitution. What is concerning is that most Supreme Court rulings don't even cite the Constitution, though this one actually does, which is a breath of fresh air. Let's note though,
none of the Supreme Court Justices are actually familiar enough with the historical context of the Constitution to have
any business interpreting it. U.S. judges are generally trained as lawyers, not as historians, however for the Supreme Court, which is tasked with interpreting the Constitution, this is completely inappropriate. Supreme Court nominees should be automatically rejected by the Senate if they don't have significant education in Constitutional history, including history of Europe around the time the Constitution was drafted and ratified. Contrary to past comments made by Justice Ruth Bader Ginsburg and other Justices, interpretation
does not mean taking language and updating its meaning to fit current circumstances. Any educated interpreter will tell you that interpretation is
purely about expressing intent, even to the point that if something like a joke, compliment, or insult does not translate literally, the interpreter will just tell the other person that the comment was a joke, complement, or insult and to respond appropriately. The
fact is the Constitution is a
living document. It was designed to be updated as needed. If it has not been updated to mean what a particular Justice thinks it
should mean, it is the responsibility of
Congress and
the people to update it,
not the responsibility of the Supreme Court to interpret it differently from how it was intended. This was a
deliberate check and balance included in the system, and Supreme Court interpretations that are not what was intended is a usurpation of legislative power
exclusively given to Congress,
not the Supreme Court.
The majority opinion also included this text, "Montana’s no-aid provision bars religious schools from
public benefits solely because of the religious character of the
schools. The provision also bars parents who wish to send their children
to a religious school from those same benefits, again solely because of
the religious character of the school." In my personal opinion, this wasn't so much discrimination against public schools as discrimination against individuals. The schools are not barred from public benefits. The students are barred from spending public benefits on education from religious schools. This isn't about discrimination against schools. It is about religious discrimination against individuals. It is worth noting here that Montana's no-aid provision actually doesn't apply. Scholarships are not aid for schools and should not be regarded as such. They are aid for individuals, which ends up being paid to whatever schools those individuals choose to attend. The wording of this provision is this, "The legislature, counties,
cities, towns, school districts, and public corporations shall not make
any direct or indirect appropriation or payment from any public fund or
monies, or any grant of lands or other property for any sectarian
purpose or to aid any church, school, academy, seminary, college, university, ..." Again, the scholarships are not aid to schools, thus thus law does not apply, and the Montana supreme court was entirely out of line in its ruling. Montana needs to replace its supreme court with justices of sufficient competence to tell the difference between aid to individuals and aid to organizations. On top of that, even if this provision did prohibit public money from ever making its way to religious organizations, it would be unenforceable. Does the state of Montana pay wages to religious employees that pay some portion of those wages as a tithe to their churches? The way the Montana supreme court ruled on this issue, it would be illegal for the state to pay wages to religious employees, and note that this includes elected officials, and that would constitute a religious test for public office which is explicitly unconstitutional. Thus, the Montana supreme court ruling actually does constitute an unconstitutional religious test for public office, though admittedly very indirectly. The law itself, however, does not actually prohibit state scholarships as aid to students to be used as tuition for religious schools. It is not the U.S. Supreme Court's job to interpret state laws though, so instead it was forced to consider a much deeper question, which revealed that Montana's law is just straight up unconstitutional, not just misinterpreted.
The four dissenting Justices had their own opinion of the case. Justice Stephen Breyer wrote, "The majority’s approach and its conclusion in this case,
I fear, risk the kind of entanglement and conflict that the
(Constitution’s) religion clauses are intended to prevent." Notice that Breyer admits that what is important here is the intent of the Constitution, not the "modernized" interpretation of activist Justices who want to change the law without the consent of the people. Also note that Breyer is totally wrong. Again, Breyer is clearly no Constitutional historian and thus has no clue at all what the actual intent of those clauses was. He is pulling intent out of his [donkey], instead of consulting with historical records to determine what the actual intent was. There is also a problem here of building a hedge around the law. He has not said that this ruling is unconstitutional or otherwise wrong. He says he fears it will lead to actual violations of the Constitution. If you know much about Jewish history, you will know that they also had a problem with building hedges around the law that lead to rather extreme oppression in some cases. If something illegal happens, we can deal with it when it happens. We don't need to engage in blatant religious discrimination, to reduce the risk that other kinds of religious discrimination could happen. Of course, none of that is really relevant to Breyer's argument, because the risks he is speaking of don't actually conflict with the Constitution's religious clauses, and he is merely echoing the concerns of other historically uneducated Justices who were and are in no way qualified to be interpreting the Constitution.
Justice Ruth Bader Ginsburg expressed the opinion that the state supreme court's ruling and order to dismantle the scholarship program was sufficient resolution to the problem, because it eliminated the program that produced the legal ambiguity. We've already discussed Ginsburg's incorrect definition of "interpret" designed to let the Supreme Court usurp legislative power with neither the consent nor the representation of the people. She clearly does not understand he job, and this highlights that again. The job of the Supreme Court is the interpret the law, not to give opinions on how states try to resolve their legal problems. This is about the Constitution and a specific state law. The state supreme court ruled that the state law was Constitutional, and it ruled that a particular interpretation of the law was valid. The consequent order to dismantle the scholarship program was completely irrelevant to the case, and Ginsburg was wasting the Court's time bringing it up. The conservative Justices and some of the other liberal Justices understood this clearly enough to continue the case, ultimately collectively rule mostly correctly, and write opinions that did not waste space on this completely irrelevant information. (Justice Elena Kagan joined Ginsburg's worthless position.)
Justice Roberts also wrote, "Any establishment clause objection to the scholarship program here is
particularly unavailing because the government support makes its way to
religious schools only as a result of Montanans independently choosing
to spend their scholarships at such schools." Aside from the fact that the establishment clause would only apply if the law was attempting to establish a state religion, Roberts was perfectly correct here. As I have said before, the scholarships were given to students, not to religious organizations. The choice of the student to spend the money on education from a religious school is no different from a government employee choosing to donate a portion of wages to his or her church. If the Montana supreme court ruling was allowed to stand, that would justify religious testing as a condition of holding public office, to prevent government paid wages of elected officials from being donated to their churches as tithes or other donations. Breyer was concerned that this ruling would make it easier for states to violate a false interpretation of the establishment clause. However any ruling upholding the ruling would have straight up made it illegal for religious people to hold public office in Montana (and many other states with similar laws), because paying them wages would likely end up supporting religious organizations.
A number of advocacy groups were unhappy with the ruling on the grounds that the ruling was a violation of longstanding funding rules. It's nice to see that the current Supreme Court is more interested in upholding the Constitution and protecting Constitutional rights than adhering to "longstanding funding rules" that were clearly unconstitutional. The only failure here is the travesty that unconstitutional rules were upheld for long enough to called "longstanding".
Maggie Siddiqi, the director of the ironically named Center for American Progress said, "Today’s ruling erodes the constitutional separation of church and state
that has long prevented government from funding the exercise of
religion. This is a clear violation of the religious freedom of all
taxpayers, who may now be compelled to support religious schools with
traditions they do not follow." The irony in the name, is of course, the word "progress", when the director of the organization is clearly more interested in regression of the progress in religious freedom that is one of the cornerstones of the U.S.. That aside, this quote is also proof that Siddiqi, someone who professes to be a protector of Constitutional rights, is just as uneducated in Constitutional history as the entire Supreme Court. No where in the Constitution is separation of church as state mentioned. The establishment clause forbids the government from establishing a state religion, not from providing scholarships to individuals who want to attend religious schools. There is no separation of church and state issue, and there is no establishment issue here. What there is, is egregious religious discrimination, justified by gross misinterpretations of the Constitution, due to lack of education. This is not a violation of religious freedom for taxpayers, anymore than spending government money on providing abortions and birth control to women is a violation of religious freedom for taxpayers who are opposed to those things. (Note that the Center for American Progress advocates in favor of Medcaid and other U.S. healthcare programs using taxpayer money to pay for elective abortions, despite the fact that a significant number of Americans are religiously opposed to most elective abortions.)
Holly Hollman, general counsel for the Baptist Joint Committee for Religious Liberty, pointed out that religious organizations often benefit from being treated differently, and she suggests that this opens the doors to government having greater influence in employment decisions within religious organizations. Honestly, this sounds to me more like a threat than a legitimate concern. It sounds like a threat to push for fewer accommodations and exemptions for religious organizations. This, of course, would be a massive violation of the establishment clause. Recall one of the hallmarks of establishments of religions is state influence in hiring and firing decisions.
The U.S. Conference of Catholic Bishops issued this statement, "This decision means that religious persons and organizations can, like
everyone else, participate in government programs that are open to all.
This is good news, not only for people of faith, but for our country, by ensuring the rights of faith-based organizations’ freedom
to serve, the court is also promoting the common good." And interesting historical fact is that most Islamic countries were not forced on pain of death to accept Islam. The Islamic jihads/violent expansion that lead to the ubiquity of Islam in the Middle East, Western Asia, and parts of Northern Africa weren't blood baths of infidels who wouldn't convert. They were merely wars for territory and control. The conversion of the indigenous populations occurred over many generations. The method used to encourage conversion was simple, non-violent government discrimination against all undesirable religions. Infidels (non-Muslims) had fewer rights and were not allowed to hold government office (textbook establishment of religion). That's it. Infidels were denied access to certain kinds of government aid and services. In some countries, they were denied access to education. In some, businesses owned by infidels were denied access to government contracts and were limited in who they were allowed to serve. They basically made it inconvenient to not be Muslim. Within less than a generation, more than half of the populations in most of these countries had converted to Islam, not because they actually believed, but because non-Muslims were second class citizens, without access to a lot of protections and benefits that all Muslims enjoyed. Within three generations, very few non-Muslims remained. Now days, very few Zoroastrians (the original dominant religion in many modern Islamic countries captured during the early violent expansion) remain, though as religious freedom is slowly increasing, Zoroastrianism is seeing a revival. Anyhow, the point is, mild religious discrimination of the sort perpetrated by Montana can have a huge impact on religion. This strategy has been used in the past, most notably by Islam but also by Catholicism in parts of South America, to change or establish a dominant religion in a region, but it can also be used to discourage religion and establish a form of secularism as the dominant religion, which is exactly how it was being used by Montana's government and other governments in the U.S., in the (ironic) name of religious freedom.
Obviously many religious organizations are quite pleased with this ruling, as it prohibits state and Federal governments from discriminating against religious individuals on grounds that treating them the same as others might benefit religious organizations. Sadly, even they don't understand the real Constitutional reason Montana's behavior was illegal, nor do they understand that upholding such laws would technically require states to discriminate even more against religious people, potentially even to the point of denying people who would spend government wages on donations to religious organizations any form of government employment to the point of requiring religious tests even for elected officials. This was actually a much more significant case than perhaps anyone realizes, as precedent from this case could have ended up supporting far more oppressive religious discrimination.
