Inside Supreme Court

Gary Frankel is a society, ethics and law senior and the Chairman of the Texas A&M College Republicans.

To the editor,

RE: "The death of a secular state"

On July 12, The Battalion posted an op-ed concerning Espinoza v. Montana Department of Revenue, with the central argument being that the Supreme Court ruled the case incorrectly. The 5-4 majority, with the opinion written by Chief Justice John Roberts, ruled that to exclude religious institutions from a broadly available government program is unconstitutional. The article then expressed concern that more decisions like Espinoza could lead to “the death of the secular state” through the revocation of the separation between church and state. As a non-religious person myself, I do not follow the argument. The article is earnest and well-written, but its concerns are unfounded and its analysis is flawed in several ways.

First, before delving into the nuances of the Espinoza itself, it is important to recognize what “a separation of church and state” entails. The argument that it references a strict divide between the affairs of government and the affairs of religion is fairly new. The Founding Fathers had a very different understanding. Thomas Jefferson (an avowed Deist) is often mislabeled as possessing the preceding view. In actuality, Jefferson had no issues with religious people utilizing their faith in the public sphere, or the government making accommodations towards religion. Instead, Jefferson feared the government infringing upon the religious liberties of the people. James Madison, Thomas Tucker and John Adams all possessed a similar (though not identical) view, and numerous state constitutions at the time the Bill of Rights was passed had established churches that would no longer be socially or legally (due to the incorporation doctrine of the 14th amendment) permissible. However, it is evident that the complete separation between church and state is a largely modern development and cannot be traced to the principles behind the Bill of Rights.

Moving on to Espinoza, the author of the aforementioned Battalion article references Locke v. Davey as the precedent Espinoza ought to have been ruled under. Locke was a narrowly tailored case, in which the court ruled that a university student could not use state-supported funds specifically to enter the clergy. The author refers to “other cases” that influenced Roberts’ opinion. Most important among these is Trinity Lutheran v. Comer, which was decided more than a decade after Locke. The Missouri Department of Natural Resources established a Scrap Tire Program, who offered grants to local institutions in order to resurface their playgrounds with rubber tires. The Trinity Lutheran Church Child Learning Center applied for a grant under this program and was denied under the grounds that they were a religious institution. They sued, and in a 7-2 decision, the Court ruled that religious institutions could not be excluded from a broadly applicable grant program solely due to the fact that they are religious. Funding a playground upgrade is not directly supporting the clergy, and neither is allowing religious schools to benefit from broadly available scholarship programs.

Second, the author expresses concern that the Espinoza decision could spiral into the loss of our secular republic. This is not the case. Rather, the Espinoza case reinforces the idea of our secular republic. Article X(6) of the Montana Constitution contains what is known as a Blaine Amendment. Blaine Amendments, implemented in 37 states before the Espinoza decision, are, as Chief Justice Roberts puts it, “born of bigotry.” During the 19th century, Protestants had widespread control of the American public education system, and they sought to exclude Catholics from participating therein. While there had been a long-standing tradition of a variety of churches receiving public funding dating from the Founding, Blaine Amendments ended this by placing an explicit ban on religious institutions (which, at the time, were overwhelmingly Catholic) receiving public funding. They were not methods of secularization, but weapons of discrimination and oppression. The Espinoza decision, while not explicitly declaring Blaine Amendments unconstitutional, makes them completely unenforceable. Now, no church or religious organization can be intentionally excluded by public institutions based on their religious status alone. Is the America in which all faiths (or lack thereof) are treated equally by the government not the more secular America?

(10) comments


Ironically, it was protestant fears of catholics that led to the secularization of public schools. There were riots, sometimes deadly, over which bible to use in public schools. So with fear of catholic teachings getting into the school curriculum, christian teaching was removed altogether. So yes, the Blaine Amendments were used to fight catholic education, but continued pressure removed the protestant influence from public schooling which is a move towards secularization.

I don't agree with the sentiment that public funds being used to fund all religions is a move towards secularism. It seems like many parents use religious schools to 'instill proper values in their children.' I believe this practice reduces the interactions that lead to more secular communities. The use of private and charter schools to further divide communities should not be supported by the state, and I'd rather see tax dollars going to improving education for all people, rather than the privileged few who attend private institutions.


The tax credit at question in Espinoza is specifically directed towards low-income students, so your concerns regarding the "privileged few" are unfounded in this context. I'm not sure I agree with your contention that the Christian influence was removed from public schooling altogether. Even today, the general idea of state-supported public education is a descendant of unitarian Protestant traditions. On the more extreme side, you can definitely see the Baptist influences within many public facilities in parts of the deep south.

If a parent wishes to use religious schools to instill a distinct set of values in their children, that is their right under the Free Exercise clause (though I think emphasizing parental choice is of value on principle alone). Beyond that, parents have a right to raise their children however they wish, and the state may not discriminate against them based on religious status alone.

Moreover, from a quantifiable basis, if your interest is in using tax dollars for the purpose of improving education for all people, you should be supporting universal education savings accounts (which work like health savings accounts). That would give parents of all income levels equal opportunity to send their children where they wish, while fostering competition among public and private entities.


While I agree that the specific scholarships of the case are for low income students, the point I was trying to make is that private schools generally favor more privileged individuals, so why continue to support them with public funds.

I agree that there is still the influence of religious beliefs in public schooling. It is hard to escape the history of institutions, but I don't think that supporting an opposing institution is the solution. Rather, I would like to see that influence removed altogether.

Yes parents have the right to instill ideals in their children, but I disagree that to do that requires tax dollars to go towards religious institutions. Why should non christians, non muslims, or atheists indirectly be supporting these religious institutions?

On a quantifiable basis, low income families cannot afford private education, even with tax free savings in the accounts you mention. Supporting those accounts just makes it easier for those who could already afford private schooling to choose to do so. The issue of lower educational attainment and underfunded school would only be exacerbated by further taking funding away from public institutions to support private ones.


The purpose of scholarship programs is to give low-income students opportunities that they would not have had otherwise, ie, from attending their usual inner-city public schools. Montana's was funded largely by individual donors (who received a tax credit from the state in exchange), so it didn't even dip into funding that would have otherwise gone to public schools. Even then, the US spends the 2nd most per student out of any country in the world. Our public education system has a lot of problems, but financing them isn't one of them. Maybe things would be better if there were fewer administrators with lower salaries.

The problem with removing religious influence altogether is that walks the thin line between a secular state and an irreligious state. A secular state treats all religions (or lack thereof) equally, while an irreligious state explicitly prioritizes institutions that are non-religious. A secular state is not only permitted but mandated by the Constitution, while an irreligious state is not. Montana's Rule 1 and others like it violate the Free Exercise Clause because it denies them particular opportunities to express their religious faith (through schooling), with no inhibitions on irreligious private schools. With the Espinoza case, all private schools, regardless of religious denomination, are treated equally. Discrimination based on religious status ought to be (and now is) unconstitutional, and moves the US from a secular state to an irreligious one.

Low-income families can certainly afford private schools with ESAs. Arizona, Florida, Tennessee, and Mississippi have all implemented some form of an ESA, usually targeted towards low-income students or those with disabilities, to great success. Arizona in particular has the oldest, most developed, and most successful program.


Tax credits still have costs, and it is not unreasonable that state budgets consider tax credits for education scholarships to be educational expenses. That is still money that could be used elsewhere and is therefore reducing the pool of available funds.

The US is 5th per capita for spending per student. While this is too high, it's not correct to say that because we spend so much on average, that funding in low income districts is still not an issue. For example, white school districts get collectively $23 billion more per year than predominantly nonwhite school districts. There are definitely still issues with regards to funding and distribution of funds within the US.

I think you are giving a false dichotomy between a secular state that gives funds to private religious schools, and a irreligious state that is antagonistic to religion as a whole. It is quite possible to have a state that is indifferent to religion in it's teaching and funding. Going to public school does not go against any religious beliefs that I know of. I disagree with your broad reading of the free exercise clause as going to a nonreligious public school does not inhibit any individual to practive their religion freely.

I agree that the case was ruled correctly. I just think the proper solution is none of the private schools receive public funding.

19% of US households make less than $25,000 a year. The average private school costs $10,940K per student. Having to pay 40% of your pretax earnings towards a single private school through an HSA is not sustainable. So no, low income families cannot afford private school for even one child just because a state has an ESA.

Also, the examples you gave are all ESA,s which are different from education savings accounts as they all are closer to voucher programs than savings accounts. Specifically, they all require the child in question to have special needs.


Do you know what ESA stands for?


In Arizona, it stands for Empowerment Savings Account, and like I said, the examples you gave are voucher programs.


Going to a nonreligious private school doesn't preclude people from exercising their religion freely, but creating policy that it makes it artificially difficult for people to receive a religious education certainly does. Public school violates nothing. Forcing a secular public school on people, whether explicitly or otherwise, certainly does.

You're using ambiguous examples of "state tax credits having costs." Sure, Montana's had a small level of cost for the state, but the bulk of the program was funded by donations.

If private schools were unobtainable for low-income families via vouchers, then they wouldn't exist. Data backs up the notion that increased choice leads to increased parental research which in turn leads to increased student performance and satisfaction.


I don't believe it is the state's responsibility to ensure that religious schooling is affordable. It can be tax-free, but failing to supply funding for a school is not an infringement on religious freedoms. There is a difference between making something artificially difficult and state sponsorship of religion. Secular schools force nothing, other than open mindedness and a baseline understanding of all opinions that some religious schools avoid.

You are right, but the broad application of voucher programs come at the expense of education budgets. Most of those programs are not funded by donations, and do have the capacity to draw funding away from public schools.

Your argument originally was that low income families could afford private school with educational savings accounts that function like HSAs, not voucher programs, which is not true. If you are saying that they can afford private schools with voucher programs, then I point your attention to examples like the state or Georgia, where families are still out 50% the price of private education, which many families still cannot afford.


My point about financing was in regard to the generation of revenue alone, not its distribution. I agree that distribution is a problem and that the property tax system isn't sustainable.

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