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Eric Segall on Espinosa v. Montana Department of Revenue
Michael Ramsey

At Dorf on Law, Eric Segall: The Roberts Court: We are All Living Constitutionalists Now.  From the core of the argument:

Since Justice Gorsuch was promoted to his current position, he, Thomas, and Kavanaugh have teamed up on numerous important occasions to strike down laws in what can only be fairly described as living constitutionalist decisions. They voted to overturn state laws requiring public-sector union employees to pay partial union dues; a state law requiring certain abortion information to be posted at so-called pregnancy crisis centers; a state law prohibiting wearing political apparel at voting places; and a Colorado anti-discrimination law as applied to a baker who refused to make a cake for a same-sex wedding. As I've argued before, none of these cases can be justified by reference to originalist materials. They are all based on the Justices' personal values and politics. The decisions in these cases might be right or wrong, good or bad, but they are not originalist.

Last week the three were at it again in what is one of the most important cases this term. In Espinoza v. Montana  Department of Revenuethe five conservatives (over the dissent of the four liberals) reversed a Montana Supreme Court decision that held it would violate the state constitution for taxpayer dollars generated by a tax credit to be given to religious schools. ...

Chief Justice Roberts' majority opinion in Espinoza barely mentions originalist sources. Most of the legalisms in the opinion were supported by citations to Trinity Lutheran v. Comera 2017 decision in which the Court held that Missouri could not bar religious schools from participating in a program that reimbursed schools for repaving playgrounds with recycled tires. Chief Justice Roberts wrote the main opinion in that case, which also failed to to cite originalist materials, so Espinoza's piggy-backing on Trinity Lutheran cannot provide the missing originalist link.

The lack of an originalist basis for the Court's ruling that states cannot disqualify religious schools from general aid programs can be seen in Roberts' lengthy attempt to distinguish Locke on the basis that there had been a “historic and substantial state interest in not funding the training of clergy." Roberts said there was no similar tradition when it came to the funding of religious schools because, and this is the only originalism in the case, in "the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones." But the issue in Espinoza was not whether Montana could support religious schools but whether it had a constitutional obligation to give religious schools the same aid it gives non-religious schools. For the proposition that Montana had no choice in the matter, Roberts did not cite any originalist sources.

Unfortunately, I think this is mostly right about the majority opinion in Espinosa (and in Trinity Lutheran as well).  I would have liked to see a more originalist concurrence, at least, from one of the avowed originalists.  But don't know that that makes them living constitutionalists.  Perhaps they thought that the result was right on originalist grounds and that (as Justice Scalia often said), you can't write separately in every case.  It's not clear to me that the result in Espinosa is wrong on originalist grounds.  Just on the text, arguably you can't freely exercise your religion if the government puts you to the choice of giving up your religious affiliation or losing your government funding.  Perhaps that's not the way the text was understood at the time of enactment, but that would require some originalist evidence on the other side (and I take Roberts' point, discussed in the quote above, to be that there isn't any).