L.I.F.E.’s recent post on the U.S. Department of Justice and its intervention in the important religious liberty/civil rights action Carson v Makin was still hot off the wires when notice arrived that the District Court judge presiding over the case announced his decision upholding the discriminatory statute born of the disgraceful history of anti-Catholicism rampant in the Nations’ past.
No Surprise in Maine but Big News in Montana: Espinoza v. Montana
Judge D. Brock Hornby’s decision in Carson was no surprise. More on that below. But two days later the U.S. Supreme Court agreed to decide the same issue in Espinoza v, Montana. That case will finally determine the status of the shameful state constitutional Blaine amendments and similar state laws born of deep hostility toward the Catholic Church. Montana’s constitution prohibits any government funding that benefits “sectarian” schools even when the school is perfectly qualified for an otherwise generally available public benefit. As discussed in L.I.F.E.’s earlier post, “sectarian” was a well-known code word veiling the true anti-Catholic purpose of the Blaine Amendments.
In Carson the District Judge recognized his decision as merely a step on the ladder to potential Supreme Court review. He concluded that the landmark 2018 US Supreme Court decision in Trinity Lutheran left open just enough wiggle room on the precise issue of tuition benefits that other precedent from the United States Court of Appeals for the First Circuit (which governs Federal District Courts in Maine) tied his hands and dictated the result. The validity of that case, Eulitt v. Maine, Dep’t of Educ., is questionable given the holding in Trinity Lutheran, but not to such a degree that Judge Hornby was willing say that it had been clearly called into disrepute – a standard that would have allowed him to escape its application:
I cannot, as a trial judge, say that Eulitt therefore has unmistakably been cast into disrepute. It is certainly open to the First Circuit to conclude that, after Trinity Lutheran, it should alter its Eulitt holding that sustained Maine’s educational funding law, but it is not my role to make that decision. I therefore apply Eulitt to this controversy and do not decide the post-Trinity Lutheran merits, nor the standard of review that should apply in reaching the merits. Based upon the Eulitt decision, I conclude that Maine’s educational funding program is constitutional.
Appeals and Finality and Espinoza
Thus Judge Hornby’s decision did not reach the critical issue presented by Maine’s hostility to religion in light of Trinity Lutheran: may government discriminate in distribution of generally available public benefits – in the form of tuition subsidies – against a religious applicant merely because it/he/she is religious? The judge recognized that his rapid resolution of the case was merely the first step in what was little more than rehearsal for the appellate battles that lie ahead:
My decision not to decide the ultimate question … is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. … I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher).
Two days later, on June 28, 2019, it became apparent that Carson will likely not be the vehicle for a definitive resolution of this decades long saga. On that date the Supreme Court agreed to decide the issue in Espinoza v. Montana. The issue will undoubtedly draw a Justice Department brief similar to that filed in Carson and dozens of amici, or “friend of the court,” briefs by interested persons and organizations. In fact, the United States of America filed an exemplary brief in the Montana Supreme Court supporting the plaintiff’s position against the discriminatory state rule. The case promises to one of those most closely with a decision expected in 2020. Here’s an example of interested party amicus brief that was filed by the excellent Pacific Legal Foundation. Espinoza is poised emerge as a final, fatal chapter in the sordid history of anti-Catholic government bigotry that has penetrated the American political left and is now manifest as a generalized anti-religious zealotry while keeping orthodox Catholics in the cross-hairs. L.I.F.E. will keep a close eye on developments.
Liberty Institute for Faith & Ethics 