NPR: Suuuuuure sounds like SCOTUS will strike down bar on public funding for religious schools

Bye bye Blaine? In oral arguments yesterday, the Supreme Court questioned the litigants in a challenge to a Montana constitutional provision that bars any government benefit from flowing to private schools run by churches — even tax breaks for contributions. While it’s sometimes dangerous to assume a direction from the Socratic style of questioning used at Supreme Court hearings, NPR detects a significant drift in yesterday’s debate for Espinoza v. Montana Department of Revenue:

Chief Justice John Roberts and Justice Samuel Alito compared the exclusion of parochial schools from taxpayers-funded aid programs to unconstitutional discrimination based on race.

That view suggested that Wednesday’s case has the potential for much broader public funding of parochial schools. …

Representing the state of Montana, lawyer Adam Unikowsky told the justices that the states until now have generally had the power “to decide that they’re only going to fund the public school system.”

But Justice Kavanaugh repeatedly seemed to suggest that religious families who want to send their children to parochial schools should be treated equally under the constitution.

Just how far the Supreme Court will go in that regard may depend on Chief Justice Roberts, who after a long night at the impeachment trial, did not entirely tip his hand.

Perhaps Roberts didn’t need to “entirely” tip his hand. Three years ago, the court ruled against the so-called Blaine Amendments in Trinity Church v Comer, which struck down a Missouri bar on funds for playground renovations from going to the Lutheran church that brought the lawsuit. Thirty-seven states adopted the Blaine Amendments starting in the mid-nineteenth century after an effort to amend the US Constitution by Rep. James Blaine to stop funding for Catholic education failed to gain support. In that decision, the court ruled that religious schools had the right to participate in neutral funding programs if other private schools could access them, a decision that Justices Clarence Thomas and Neil Gorsuch noted that the application would be wider than just “playground resurfacing.”

Justices Alito and Brett Kavanaugh both cited the Blaine project’s roots in anti-Catholicism, although Montana argued that the 1972 version of the constitutional bar did not have any such animus:

“I mean, I think that in the 1880s, there was undoubtedly grotesque religious bigotry against — against Catholics,” said Adam Unikowsky, arguing on behalf of the Montana Department of Revenue.

“That was the clear motivation for this,” Justice Brett Kavanaugh replied.

“In the 1972 Constitution, which is where this provision was enacted, I don’t think there’s any evidence whatsoever of any anti-religious bigotry,” Unikowsky said.

Justice Sonia Sotomayor had earlier noted a “long history” of people opposing public funding of religious groups. She implied that Montana in 1972 no longer exercised the anti-Catholic bigotry of the 1800s but still chose to bar public funding of religion in line with the U.S. Constitution’s “Establishment Clause.”

Justice Samuel Alito asked how it wasn’t merely coincidental that laws such as Montana’s occurred in a time of anti-Catholic bigotry.

“I’m not going to get into an argument with you about what happened in 1972, but do you really want to argue that the reason why a lot of this popped up beginning, coincidentally, in the 1840s, at the time of the Irish potato famine, that had nothing to do with discrimination based on religion?” Alito asked.

At the very least, this suggests that the court is heading for a 5-4 split on this question. Trinity went on a 7-2 split, with only Sotomayor and Ruth Bader Ginsburg dissenting, and with Kagan in concurrence with the majority opinion and Stephen Breyer in a separate concurrence on more limited grounds. The issue here will be that a similar decision will necessarily broaden the Trinity impact on Blaine amendments, perhaps in effect striking them down in full altogether. That opens questions — which came up in oral arguments as well — as to just how much the state would owe religious schools when it came to equal funding access. That’s probably more a question of parity with other private schools rather than with public schools, but there might be some gray areas when it comes to charter schools, a public-private partnership, for instance.

Will Roberts side with Montana, or will he go with the plaintiffs in this case? If it’s truly coming down to Roberts as a swing vote, I’d expect him to rule on the side of religious liberty and go with the plaintiffs. However, Roberts might be tempted to write the opinion to tailor it so that it emphasizes limits on how far this decision goes in dealing with public funding issues in order to attract a couple of the liberal wing’s jurists into a broader coalition. Perhaps Roberts can even get back to Trinity’s 7-2 vote, although that might be a rather high expectation.

Don’t count chickens before they hatch, however. Plenty can happen between oral arguments and the final verdict, and has often enough to show that assumptions based on oral arguments have the same reliability as assumptions in practically any other context.