The Montana Legislature recently enacted a state tax credit for donations to charitable organizations that provide scholarships for students attending private schools (including, on equal terms, religious schools). When taxpayers have objected that such a programs "aids religion," a number of state courts have rejected that assertion on the merits, most notably the Arizona Supreme Court in Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999). And the U.S. Supreme Court held that taxpayers lacked standing in federal court to challenge Arizona's program under the Establishment Clause (Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011)).
Unfortunately, as Religion Clause recently reported, the Montana Department of Revenue (charged with enforcing the statute) has promulgated a rule excluding the use of tax credits to support donations for students who use them at "sectarian" schools. The Department has the misguided notion that this program is prohibited by the Montana Constitution's ban on "any direct or indirect appropriation or payment from any public fund or monies ... to aid any [school] controlled in whole or part by any, church, sect, or denomination." Mont. Const. Art. X, sec. 6. This is a particularly egregious example of the use of a state "Blaine Amendment" to discriminate against families who choose religious schooling for their children, and against donors who want to support that choice. (As we've noted here recently, the Supreme Court is considering important certiorari petitions challenging the application of Colorado Blaine's Amendment to discriminate against religious choices in education.)
Several parents, represented by the Institute for Justice, have filed suit against the new rule. During the agency process preceding the final promulgation of the rule, the Religious Liberty Appellate Clinic at St. Thomas, which I direct, drafted comments (here) filed by the Christian Legal Society and the Lutheran Church--Missouri Synod. We pointed out a bunch of things, with lots of supporting authority: that a tax credit is not an appropriation or payment, that the credits aid families rather than religious schools as such, and that such discrimination against religious choices is contrary to basic First Amendment principles. One sample bit (emphasis added):
Indeed, excluding religious organizations from this credit would a fortiori require excluding them from tax exemptions and from deductions for charitable contributions, since those exemptions are not separated by the additional steps present here: donation to an SSO that funds a scholarship that assists a parent who chooses a school that may or may not be religious. To find an unconstitutional connection in the House-that-Jack-built sequence of actions here would have intolerable consequences, “endanger[ing] the legislative scheme of taxation.” Toney, 744 N.E.2d at 357. The Montana Constitution, and thus the tax-credit statute, provides no authority for the Department to take this step.
Thanks to UST Law student Jennifer Tripp for her drafting work on the comments.
Wednesday, December 16, 2015
Good news, for the moment, from The Hill, about the ability of American soldiers to follow their faith in ways consistent with real military needs:
The Army has granted a temporary religious accommodation for a Sikh member of the armed forces, who will be allowed to wear a beard and turban when he reports to a new post on Monday.
"My Sikh faith and military service are two core parts of who I am,” Capt. Simratpal Singh, 27, said in a statement issued Monday....
The Army, which maintains meticulous grooming standards, must decide whether to make the accommodation permanent. It has granted thousands of exceptions for beards based on medical reasons, according to a legal group working on behalf of Singh, which said his accommodation is only the fourth such given since the early 1980s.
Here is the Army's letter with the interim permission. Congratulations--and best wishes in the future on this case--to The Becket Fund, which continues with its mission of defending religious liberty for all faiths.
Wednesday, December 2, 2015
In The Atlantic, Emma Green reports on Democratic and Republican reactions to the San Bernardino shootings, and how a noticeable number of liberal/progressive commentators are "shaming" people who've expressed the sentiment that "our prayers are with those affected." For example, she quotes a Think Progress editor and pretty aggressive atheist named Zack Ford, who tweeted, "Stop thinking. Stop praying. Look up Einstein's definition of 'insanity.' Start acting on gun violence prevention measures." Green thinks there's a developing pattern here indicative of the changes in religion and politics:
There are many assumptions packed into these attacks on prayer: that all religious people, and specifically Christians, are gun supporters, and vice versa. That people who care about gun control can’t be religious, and if they are, they should keep quiet in the aftermath of yet another heart-wrenching act of violence. At one time in American history, liberals and conservatives shared a language of God, but that’s clearly no longer the case; any invocation of faith is taken as implicit advocacy of right-wing political beliefs.
I certainly hope that the "shamers" are in the minority; I hope that for the sake of the left, which (to say it for the umpteenth time) has no hope of making progress in America if it divorces itself from religious inspiration. I'd hope that many of those who attack prayer alone as insufficient, and want action, are reflecting something of the attitude of the prophet Amos (see 5:21-23, NRSV):
I hate, I despise your festivals, and I take no delight in your solemn assemblies....
Take away from me the noise of your songs; I will not listen to the melody of your harps.
But let justice roll down like waters, and righteousness like an ever-flowing stream.
If you are impatient with unaddressed matters of justice, and you think that religion can throw up pious distractions from those matters, you have the Biblical prophets on your side. As Green points out, praying and acting are far from inconsistent. See the familiar list of social-justice movements the left commends, from abolition to women's suffrage to civil rights, that have been inspired by preaching and prayer. I think that most Americans on the left still recognize that--although unfortunately, Green is likely right that more and more do not.
Tuesday, November 24, 2015
"... You'd better hope there's someone to help you [then]." This new John Kasich ad gives Trump everything he deserves for his shameful litany of bigoted statements.
Three cert petitions were recently filed in the U.S. Supreme Court in an important case involving school choice and religious rights in Colorado. The local school district in Douglas County adopted a neutral program of scholarships for families to use for sending their children to any private school, religious or nonreligious. But the Colorado Supreme Court held that religious schools and families must be singled out for exclusion from this program; 3 of the 4 justices in the majority relied on Colorado's Blaine Amendment, the constitutional provision that prohibits aid to "sectarian" schools. The petitions argue that the Colorado court's ruling requiring this exclusion (1) ignores the 19th-century animus and prejudice against Catholics that motivated Colorado's and other states' anti-aid provisions, and (2) independent of this historical taint, violates the First Amendment by singling out religious choices for discriminatory denial of aid. (Here is one of the petitions, the school district's, with links to petitions by the state and by intervening parents.)
There's now an amicus brief from the Christian Legal Society, the Becket Fund, and others supporting the cert petitions. We expand on the argument about the prejudice-tainted background of state Blaine Amendments. We also show why the passage of time since their enactment does not immunize them from constitutional review based on their discriminatory motivation and the discrimination they are accomplishing today.
Finally, we explain why the Court ought to take this case: (1) among other things, state judges and other officials have (wrongly) come to think they have carte blanche to exclude people choosing religious options from generally available state benefits, and (2) the federal government bears partial responsibility for these discriminatory provisions because it pressured states joining the Union in the late 1800s and early 1900s to include such provisions as a condition of admission.
The University of St. Thomas Religious Liberty Appellate Clinic, which I direct, wrote the amicus brief. Thanks to my student Dan Burns for doing a significant amount of the drafting.
Fingers crossed on this case! It's obviously always difficult to get cert; and school choice cases are hard to bring before the Supreme Court. But the historical evidence of anti-Catholic animus in Colorado is as strong as that in any state. This may be the case that gets the Court's attention on how state constitutional provisions are being used to require insupportable discrimination against religiously grounded schooling.
Tuesday, January 27, 2015
The Religious Liberty Appellate Clinic I supervise at St. Thomas has filed amicus briefs in a pair of important school choice cases. The North Carolina Supreme Court is reviewing a trial judge's invalidation of the state "opportunity scholarship" program that helped low-income students attend private K-12 schools if their families choose. (See the Institute for Justice description of the cases.) The issues are important not only because the program serves the commendable goal of empowering parents and families, but also because the trial court's ruling of invalidity made a hash of the "state action" doctrine, conflating religious admissions and hiring criteria by private schools with unconstitutional religious discrimination by the state.
The plaintiffs raised several challenges to the statute, including that it allows families to use their scholarship money at religious schools that allegedly discriminate by considering religious affiliation in their employment or admissions policies. The amicus brief focuses on this issue, arguing that to strike down the program on this ground would create severe tensions with the religious freedoms guaranteed by the U.S. and North Carolina constitution: schools’ freedom to maintain their religious identity, and parents’ freedom to choose a school with such an identity.
The St. Thomas news release tells you more about the amici--who include the Christian Legal Society (CLS), evangelical Christian school associations, and Catholic dioceses--and about our clinic. The previous briefs we have filed are collected here. 3L student Jim Kovacs did an excellent job as the primary drafter of the NC brief. And thanks to Debbie Dewart, our co-counsel in North Carolina, and Kim Colby of CLS, co-counsel on this and many other of the clinic's briefs.
