Espinoza v. Montana, No. 18-1195.  Oral argument held January 22, 2020.

Oral argument for the Espinoza case shed little light on its outcome, although it did underscore that the Supreme Court justices hold divergent views on what is appropriate not only constitutionally, but with respect to addressing constitutional error.  

Justice Ginsburg intimated that the parents who brought suit have no taxpayer standing as they are not directly involved with the Montana tax credit in issue.  She further suggested that the state supreme court was not unreasonable in “leveling down,” or avoiding constitutional problems by dispensing with the scholarship program entirely.  

Justice Sotomayor signaled disdain for any state involvement in religion, pointing to history for support, much as others point to history for support for the opposite view, that the framers would abhor hostility toward religion but rather sought to guard against preferential government treatment for one faith over another.

Other justices asked how the circumstances of the Espinoza case would even conceivably be acceptable if the issue were race rather than religion. Justice Alito reminded counsel that it is not really possible to overlook the coincidence of the enactment of Blaine Amendments with the wave of immigration that accompanied the Irish potato famine. 

Justice Breyer noted that there is no Establishment Clause respecting race, demolishing the “no distinction” point of view respecting race and religion.  The justice likewise worried about how a determination that the state might permissibly be involved in religion by means of the tax credit would impact subsequent funding decisions.  His principal worry seemed to be that a determination that religion could not be excluded would compel inclusion of religion in all state funding.  

Justice Kagan, noting her joinder in the Trinity Lutheran decision, asked whether the Espinoza case was not distinguishable from Trinity Lutheran.  Trinity Lutheran concluded that it is unconstitutional to preclude participation in neutral and generally available government programs because of religion.  In this case, she stated, religion is directly involved: the issue is payment of money to religious institutions.

Justice Gorsuch interjected for clarity the question whether a federal court may aptly intervene where a state court has made an error under federal law, intimating that the question whether the state court error was active or passive is a red herring.

The Chief Justice questioned the role of intent in discrimination cases, suggesting, without more, that there may be some relevance for Espinoza. Thee Chief Justice cited a 1977 case holding that an ordinance with discriminatory impact was nonetheless constitutional because its enactment was without discriminatory intent.  

There are no certainties in the law, but it is not irrational to speculate that there will be no unanimity in any determination the court makes. The divergence in thought will not unlikely be reflected in a multiplicity of opinions.