Courthouse Steps Decision Teleforum: Espinoza v. Montana Department of Revenue

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum conference call. This afternoon will be a Courthouse Steps Decision Teleforum on the recent Supreme Court ruling in Espinoza v. Montana Department of Revenue. My name is Nick Marr and I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we're fortunate to have with us Michael Bindas, Senior Attorney at the Institute for Justice and one of the Institute's attorneys on this case. After our speaker gives his opening remarks, we will then go to Q&A. Thanks for sharing with us today. Michael?

 

Michael Bindas:  The Court held that the exclusion of students who were training for the ministry was not a Free Exercise problem because the exclusion turned on the specific use to which the scholarship was put, namely training for the clergy. And there was a substantial historical interest at the time of the Founding against a state-supported clergy. So the Supreme Court held that this exclusion of students training for the ministry was permissible under the Free Exercise clause.

 

      So the question yesterday for Chief Justice Roberts, and the majority, was how do the Trinity Lutheran and Locke decisions interact in the specific context of a school choice program. By barring religious schools from these types of programs, did the Montana Supreme Court impermissibly discriminate based on religious status of schools and parents, as had occurred in Trinity Lutheran? Or as in Locke, did it merely prohibit scholarships from being put to a particular religious use, namely procuring a religious education?

 

      That was the question that the Court needed to resolve. According to Chief Justice Roberts, and the majority, the Montana Supreme Court's judgment unquestionably discriminated based on the religious status of schools. And for that conclusion, the Court needed to look no further than the very text of Montana's Blaine Amendment, which bars aid to any school "controlled in whole or in part by any church, sect, or denomination." According to Chief Justice Roberts, that's religious status discrimination, pure and simple. And he went to far as to say, look, even if the Montana Department of Revenue had the goal of preventing religious uses of scholarship money, the application of the Blaine Amendment still turned on the religious status of the schools, themselves, and the parents that selected those schools. And so, he had no problem in holding that this was religious status discrimination, period.

     

      Now, for Chief Justice Roberts, this became a straight application of Trinity Lutheran. Trinity Lutheran holds that this type of status discrimination is impermissible, and therefore, Montana's application of its Blaine Amendment was also impermissible. But what about Locke? What did the Court  have to say about the Locke decision and why it did not come into play here?

 

      Well, the Court distinguished it from the Montana situation in two fundamental ways. First, the Court noted that the plaintiff in Locke had been denied a scholarship because of what he proposed to do with it. Again, this notion of religious use. He, Joshua Davey, intended to use the government funds to train for the ministry. In Locke, students were perfectly free to attend schools with a religious status. They could take religious courses. The only thing they couldn't do was use the scholarship money to train for the ministry.

 

      Here, by contrast, the Montana Supreme Court barred use of scholarships at any religious school simply because of the religious status of the schools. That is, simply because of who the schools are. So that was the first kind of fundamental way in which the Montana situation differed from that at issue in Locke v. Davey.

 

      But there was another factor that the Court pointed out, and that was that Locke concerned a historic and substantial Founding-era interest in not funding the training of clergy. Many early state constitutions included prohibitions on state funding of clergy. And this was a tradition that was rooted in our nation from its inception.

 

      There was no comparable interest in what Montana was doing in barring aid to religious schools. As Justice Roberts noted in his -- or Chief Justice Roberts, I should say, noted in the majority opinion in the Founding era, governments actually did provide financial support to private schools, including religious ones. And the Blaine movement to prohibit that type of aid developed much later, in the 19th century. And, in the Court's words—on a point that was developed in Justice Alito's concurrence that I'll mention here in a bit—in the Court's words, this movement, this Blaine movement had a shameful pedigree that was rooted in anti-Catholicism, 19th century anti-Catholicism.

 

      And in that light, the Blaine amendments, according to Chief Justice Roberts, and these are his words in the opinion yesterday, “hardly evince a tradition that should inform our understanding of the Free Exercise Clause.” These post-Founding developments, these Blaine amendments that came about in the mid to late 19th century were rooted, according to the Court, in 19th century anti-religious bigotry and could not provide the kind of historic substantial Founding-era state interest that would justify discrimination under Locke.

 

      So those were the two ways the Court distinguished Locke. And having concluded, now, that this was discrimination based on religious status, it applied strict scrutiny and held that the application of Montana's Blaine Amendment could not stand. The most interesting aspect of this part of the opinion, in my view, is how the Court really drove home the harm that Montana's Blaine Amendment does to families. Not just religious schools, but to the families who would choose them. And I'll read a couple of sentences from the Court's opinion on this point. "We have long recognized the rights of parents to direct the religious upbringing of their children. Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. But the no-aid provision,"—the Blaine Amendment, as I call it—"penalizes that decision by cutting families off from otherwise available benefits if they chose a religious private school rather than a secular one."

 

      That, to me, is a very, very powerful point because it harkens back to decisions, such as like Pierce v. Society of Sisters that recognized that at the end of the day, it is parents, not government, who have the right to make the decisions controlling their children's education. And parents can't be penalized when they exercise that right by being cut off from benefits that are otherwise available to them. Again, I think that's really one of the most important, if not the most important, aspects of yesterday's decision.

 

      At the end of the decision, before it reversed the judgment below, the Court rejected a very strange argument that the Department of Revenue had asserted. This argument was essentially that, look there can't be any religious discrimination here because the Montana Supreme Court invalidated the scholarship program in its entirety. There's no more scholarship program, therefore, there's no discrimination against people who want to use scholarships at religious schools. 

 

      Very strange argument, but as Chief Justice Roberts explained, the whole reason the Court invalidated the program was because the state constitution prohibited aid to religious schools and there was no mechanism by which to parse out the religious from the non-religious. Again, the very reason we wound up with the judgment we got in the Montana Supreme Court was because of a state constitution's mandated discrimination against religious schools and the parents who would choose them.  Given that conflict, between the state constitution and the Free Exercise Clause, the Court held that the state constitution had to yield, and it accordingly reversed the Montana Supreme Court's judgment.

 

      So that is the majority opinion. Again, it was a five/four decision. But there were other opinions. Concurrences and dissents. In fact, a whole lot of other opinions. Almost 100 pages worth in total. There were 92 pages. And I'll talk about those other opinions very briefly, just to say a couple sentences about each. And I'll start with the concurrences and I'll address those in kind of reverse seniority. I think it makes sense to do that for flow, here. And so I'll start with the concurring opinion authored by Justice Gorsuch.

 

      His opinion really developed a theme that that he first set forth in his concurrence in the Trinity Lutheran decision. And that is that this supposed distinction between religious status and religious use that has become a part of the Court's jurisprudence, according to Justice Gorsuch, really at the end of the day, it's utterly unworkable. And he had a great passage in his concurrence that I think really drives home why, not only it's unworkable, but why it's unwise. He says, "Often governments lack effective ways to control what lies in a person's heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all." So again, Justice Gorsuch really questions this notion that status and use distinction should have any bearing on the constitutional question. According to him, both forms of discrimination are prohibited. Both run afoul of the Free Exercise Clause.

 

      Justice Alito authored a separate concurring opinion, as I eluded to before. And his point was that under the Court's jurisprudence, particularly a very recent decision this term from Ramos v. Louisiana, it's necessary to explore the historical origins of Montana's Blaine Amendment. And, as Justice Alito noted, those origins are steeped in anti-Catholic bigotry, 19th century anti-Catholic bigotry. He recounted in detail the way that the Blaine movement came about, the way that so many state constitutions wound up with these provisions, and it's a fascinating historical study. I certainly commend it. It's also the first time that I've seen an editorial cartoon reproduced in a Supreme Court opinion. It's got a copy of an infamous cartoon by the 19th century political cartoonist, Thomas Nast, that I wish it were satire, but it is actually a very genuine reflection of the anti-Catholic sentiment and the supposed Catholic threat to the public schools of the 19th century that existed at the time. So that was Justice Alito's concurrence.

 

      Justice Thomas authored a concurrence that was joined by Justice Gorsuch. And according to Justice Thomas, the reason there was even a question about the propriety of the Montana Supreme Court's judgment is because the U.S. Supreme Court's Establishment Clause jurisprudence has gone so wrong. In Justice Thomas's view, the Establishment Clause, first of all, should not have been incorporated against the states. And in any event, even if it was properly incorporated, the Establishment Clause does not prohibit government favoring of religion.

 

      According to Justice Thomas, the kind of sweeping expansive reading of the Establishment Clause that the Supreme Court has taken has, in turn, resulted in a very cramped and narrow reading of the Free Exercise Clause. And according to Justice Thomas, it's the Establishment Clause jurisprudence that needs to be revisited in order to let Free Exercise flourish. A very distinct take on these issues, and one that, as I mentioned, was joined by Justice Gorsuch, as well.

 

      So those are the three concurrences. Now on to the three dissents, to say a few words about these, there were three of these, as well. The first by Justice Ginsberg and she was joined by Justice Kagan.

 

      And according to Justice Ginsberg, she agreed with the Department's argument that I mentioned earlier that, look there's no discrimination here. There's no burden on the Free Exercise rights of parents because there's no more scholarship program. The Montana Supreme Court invalidated the program in its entirety, and therefore, there can no longer be discrimination. Again, she didn't agree with the majority's point, which was the reason there's no more scholarship program is because of religious discrimination. But that was Justice Ginsberg's take.

 

      Justice Breyer authored an opinion that was joined, in part, by Justice Kagan. And his opinion really disagreed with the majority on the merits. But he really emphasized, in his view, the need to take the religion clauses, or religion clause cases I should say, on a case by case, kind of context specific basis, rather than adopting the kind of categorical application of strict scrutiny that the majority took. For Justice Breyer, there's playing the joints between the religion clauses. There are certain things that the Establishment Clause permits but that the Free Exercise Clause does not require, and states have discretion to operate within that play. And categorical legal rules, according to Justice Breyer, don't really work well in that area. They kind of break down. And so the Court needs to take a much more case specific context specific approach when it's resolving cases in this area.

 

      Justice Sotomayor, with the final dissenting opinion. According to her, there was simply no federal question for the Court to review. As Justice Sotomayor saw things, the Montana Supreme Court invalidated the program entirely on state law grounds. She didn't think the Court actually reached a federal constitutional question that would justify the U.S. Supreme Court's review. Obviously, the majority saw things differently, especially that language where the Montana Supreme Court did say that its Blaine Amendment, in certain cases, could potentially run afoul of the Free Exercise Clause, but this was not one of those cases. But for her own reasons, Justice Sotomayor did not see the case involving a federal constitutional issue.

 

      So what's the take-away from all this? Well, the majority's decision, no question, paves the way for expanded educational choice throughout the country. Especially in the 30-some odd states that, like Montana, have Blaine Amendments in their state constitutions. The courts in many of these states have interpreted their Blaine Amendments in a way that prohibits educational choice, or other student assistance programs if they include religious options, and because of that, getting new educational choice programs passed in these states has been legally and politically impractical.

 

      Yesterday's decision removes the legal cloud over educational choice in these states and, therefore, really opens the political path to expand an opportunity for kids in these states. State legislatures no longer have to fear running afoul of their state's Blaine Amendment if they adopt the school choice program that includes religious options. Because as the Supreme Court held yesterday, while a state need not subsidize private education, once a state decides to do so, it cannot disqualify some private schools solely because they are religious. That, I think, summarizes the decision in two sentences and I'd be happy to take any questions at this point.

 

Nick Marr:  Great.  Thanks Michael. We'll go to audience questions now. All right, we have a question here Michael. Caller area code 502, you have the floor.

 

Caller 1:  Yeah, thank you very much. My question relates to the extent to which you believe the decision turned on the fact that it's a tax credit rather than a direct appropriation. And my question stems from a case from four or five years ago called Arizona v. Winn, which as I recall, essentially holds that there's no meaningful difference between direct payments and tax credits for purposes of the First Amendment. So that's the question. Thanks.

 

Michael Bindas:  And it's a great questions. So you're absolutely right. We litigated the Winn case and the Court in that case held that plaintiffs challenging a tax credit scholarship program, in that case in Arizona, did not have standing because there was no tax money or no public funds being spent to provide the scholarships. These were simply tax credits, and therefore, the plaintiffs didn't even have standing to challenge the program.

 

      That decision was not really at issue here because the Montana Supreme Court had determined, as a matter of state constitutional law, that this was essentially public money. In resolving the federal constitutional question, whether or not applying the Blaine Amendment ran afoul of the federal Constitution, it first had to decide whether the Blaine Amendment even applies, that is, whether this is public aid to religious schools.  And it answered that question in the affirmative, that these tax credits were the equivalent of public money or public aid to religious schools; therefore, the Blaine Amendment applied.

 

      In reviewing that determination, which again was one of state law, the Supreme Court -- well I should say the Supreme Court couldn't really review that determination of state law because it was a determination of state law. So the case went to the U.S. Supreme Court on basically that ground. The state has said that these are public monies as a matter of state law. The question now is whether barring religious options from programs that are funded by this money violates the federal Constitution.

 

      So again, if this had come about as a federal constitutional question, perhaps Winn would have had something to say on it. But it didn't. It came as a case involving the equivalent of public money under state law. And therefore, the upside of that is that, the decision does not turn at all on the fact that this was a tax credit program. This decision now makes clear that Blaine Amendments cannot be applied to invalidate school choice programs whether their funded by tax credits or rather by public appropriations. The discrimination is the same in either case. And in either case, a state that tries to use its Blaine Amendment to invalidate the program or to exclude religions options in the program would run afoul of the federal Constitution.

 

Nick Marr:  Great. We'll go to the next question now.

 

Caller 2:  Yes, thank you. First, I'd like to say congratulations. That's quite a big deal. One of the best decisions in quite a while on the First Amendment religious issues. I have two questions. One, logistically, what is the status now in Montana? The Supreme Court threw out the law. The Supreme Court said the law is still valid, but does the legislature have to give it new life? Or is it automatically back in effect. I mean, are people walking around like the law is still the law? Or what?

 

      And secondly, you said that Gorsuch concurred in Thomas's view about the Establishment Clause. Did Alito give that any indication of life in his opinion?

 

Michael Bindas:  So I'll answer the second question first. No, there really wasn't much in Justice Alito's concurring opinion on that particular question. Really he focused on the anti-Catholic origins of Montana's Blaine Amendment.

 

      As to the first question, the program, in our view, is back. Recall that the legislature adopted the program. The Montana Supreme Court enjoined it. That decision enjoining the program has been reversed. So the program is back. And as for the underlying Department of Revenue rule that limited the program to non-religious schools, the Montana Supreme Court held that that was ultra vires. That that exceeded the Department's power, given the way the statute was written. The U.S. Supreme Court's decision doesn't reverse that determination. So essentially, we're back to where we were at the outset in 2015. There is a scholarship program in Montana and parents can use that program to choose religious or non-religious schools.

 

      Now, to be clear, the U.S. Supreme Court did reverse and remand to the Montana Supreme Court for further proceedings consistent with this decision, the kind of boilerplate language that they would typically include at the end of an opinion. But in our view, the scholarship program is back. The only reason --

 

Caller 2:  Well, the --

 

Michael Bindas:  Go ahead. I'm sorry.

 

Caller 2:  Sorry, go ahead. So the Montana legislature did not take additional action after the Montana Supreme Court ruled that. The state legislature did not step in and say anything. It didn't repeal the law. It did nothing. I take that correct?

 

Michael Bindas:  Correct.

 

Caller 2:  Okay.

 

Nick Marr:  All right, we'll go to our next caller now.

 

Caller 3:  Hi, thank you. My question was essentially, the first question that was asked on whether the case turned on public -- private or public funds. Do you have any additional advice for those of us in states that will be considering legislation based on this case around public or private funds?

 

Michael Bindas:  No. I really do think that this removes any legal cloud in Blaine states over the ability of legislatures to adopt programs, whether their tax credit funded, or they are publicly funded. Blaine Amendments cannot be applied to bar programs that include religious options. And again, that's true. Now, whether those programs are funded by tax credit incentivized donations or by public monies.

 

      Interestingly, prior to this determination, most every state that had addressed a tax credit situation under its Blaine Amendment had concluded that Blaine Amendments don't prohibit tax credit funded programs that include religious options. Montana, obviously, was the exception, but most states reasonably determined, kind of under that Winn line of reasoning that we discussed earlier, that look, these just aren't public funds, and therefore the Blaine Amendment isn't even implicated. So that was, effectively, the law already in most states.

 

      Now it's clear that, look, even if you assume these are public funds, like the Supreme Court did yesterday, because the Montana Supreme Court said they are public funds, a Blaine Amendment still cannot be used to bar the inclusion of religious options in the program.

 

Nick Marr:  Let's go to our next caller.

 

Leslie:  Hello.  This is Leslie. Thank you Michael. This is just an exciting case and very good work on this. I'm calling from Washington and my question's around Davey v. Locke, which was, of course, a disappointing case out here. I serve on a Christian college board and so I'm particularly interested in this case. My concern is that I'm trying to understand, and would love any of your comments on, Judge Roberts distinguishing of Locke. What we have in Washington is a straight situation, where if you -- because of Locke, if you get an undergraduate B.A. with a theology major from a Christian college, you cannot use this scholarship for poor families. But if you get an undergraduate B.A. in theology from a public university, you can use this scholarship for poor families. And so his distinguishing about the ministerial foundation of training for clergy, Locke wasn't a seminary case. And it did harm poor families. So I'm just trying to figure out what to do with -- whether Davey v. Locke is still -- what of it is still left and sort of how to work with it at this point.

 

Michael Bindas:  Sure. I think the bad news is that Locke v. Davey is still there. The Court didn't do anything to undo the Locke decision. At the same time, in recent opinions in Trinity Lutheran, in yesterday's opinion in Espinoza, the Court has said -- effectively said, look, Locke was an unusual situation. It involved one instance where there was a clear Founding-era interest in not funding -- not having state funded clergy. And therefore, while the default rule in this area is neutrality, government must be neutral between religion and non-religion, in this one particular area, the State of Washington was within its discretion to exclude devotional theology students from the scholarship program.

 

      Now that, then, becomes, what does that mean? What does devotional theology mean? It essentially means theology programs that are geared toward training future leaders of congregations. That is what Locke stands for. That a state may permissibly exclude those majors from a state funded scholarship program. That means that you can still take theology courses. That means you can get a non-devotional theology major. But if you're in a program that is designed to prepare you to lead a congregation, in Washington obviously, you can't get the promised scholarship if you fall within that category. But really, that's the only category that we can say for sure that the Supreme Court has said a state may permissibly exclude.

 

      I don't know if that helps. I don't know if that answers the question. But in a nutshell, Locke is still the law, but the Court has cabined Locke in a way that really relegates it to this one very, very narrow set of circumstances. And for many years, school choice opponents were relying on Locke to say, hey the Supreme Court said states can bar religious uses of scholarship money and that means any kind of religious use. That means, if you're going to use a scholarship at a religious school, Locke allows the state to say, nope, you can't do that. We now know that not to be true. That you cannot deny someone a scholarship or financial aid more generally simply because they want to use it at a religious school.

 

Leslie:  Thank you.

 

Nick Marr:  We'll go to our next caller.

 

Caller 4:  Thank you Michael. Trinity Lutheran had that weird footnote about how this applies only to playgrounds. I guess that's just long gone in the rearview mirror, right?

 

Michael Bindas:  Well, I personally think it shouldn't have been there to begin with.

 

Caller 4:  Right. I agree.

 

Michael Bindas:  And it's a fascinating thing too because that footnote only garnered four votes. If you'll recall, Justices Thomas and Gorsuch, if I remember correctly, if I'm doing the math correctly, and perhaps -- oh gosh. I'm almost certain that that footnote only garnered four votes. So it's technically not even a part of the majority opinion.

 

      That said, what does yesterday's opinion mean for the viability of that footnote? Well, really if there is status discrimination, if there is discrimination based on religious status, if that's what the discrimination turns on, then the use or the purpose to which the money would be put really doesn't matter. In fact, Chief Justice Roberts, in the majority opinion yesterday, made essentially that point. He said, look the Department is arguing that the reason the state needed to bar religious options is because it determined that the money would be put to a religious use procuring an essentially religious education, etc., etc.

 

      And Chief Justice Roberts's opinion said, basically, well that may have been the goal here. But the exclusion still turns on religious status. And so long as there is status discrimination, that's the end of the story. And so I don't think there's much left of that footnote. I personally didn't think there was much to that footnote to begin with. But nevertheless, there's not much left. I mean, could there be a situation where there is discrimination that doesn't turn on status but does revolve entirely around the use to which aid might be put, perhaps. But that was certainly not yesterday's question. That is not the typical school choice case. And therefore, the fact that this money could be viewed as being put to the use of procuring a religious education is, at the end of the day, irrelevant because families were being denied the aid because of the status of the schools that they selected for their children.

 

Caller 4:  Thank you.

 

Nick Marr:  We'll go to our next caller.

 

Caller 5:  Yeah, hi.  Congratulations again. So I'm assuming, as I read this case, there's nothing in it that would prevent a state from conditioning participation in a choice or a scholarship program on religious schools being required to adopt a non-discrimination policy, with respect to teacher hiring and firing, even if that policy went against their religious conviction. Do you read it the same way?

 

Michael Bindas:  I think the opinion's just silent on that point. It doesn't have anything to say, one way or the other, on that. If that situation arose, obviously there would likely be litigation over it. But yesterday's opinion doesn't say anything one way or the other on that issue. It wasn't an issue in the case, and I don't think there's anything in any of the 92 pages of opinions that really addressed those points.

 

Caller 5:  Well, just to follow up, for a lot of the amici on the state side, that issue was clearly, squarely in view. It was mentioned in a lot of the briefs. And I thought at least one of the dissenters did observe in passing that some of these religious schools were "engaged in discrimination." So it does seem like that's pretty likely to be the next salvo in this.

 

Michael Bindas:  Yeah. Forgive me. If you saw that in one of the dissenting opinions, I don't question that that was in there. I just, in trying to get through all 92 pages, I may well have overlooked it.

 

      But yeah, I understand that amici on both sides raised issues that were not necessarily involved in the litigation and certainly, the majority didn't have anything to say on this, one way or the other, on this particular issue. And that may well be the next issue in this area and the Court will have to weigh the respective interest on both sides of that issue, the religious liberty interest on one side, the interest of LGBTQ groups on the other side, and it will have to resolve those issues in consideration of those interests. Yesterday's opinion just didn't involve that question, even though some amici tried to inject that into the equation, and at the end of the day, there's just nothing in the majority's opinion that bears on that question one way or the other.

 

Nick Marr:  Caller with the area code 404. You're the next question.

 

Caller 6:  Yeah, hi. I'm calling from Georgia. I don't know if this is covered or not, or maybe I'm the optimist, that we can expand these decisions exponentially. But probation here, because I'm a criminal defense attorney, prohibits using public funds for community service with religious organizations. And do you think this might be expanded to them?

 

      And then, also, while on appeal, were any types of funds being put aside? If so, are they going to be distributed now to the religious organizations?

 

Michael Bindas:  So, with respect to the second question first, if I remember correctly, the scholarship granting organization was allowed to disperse tax revenue generated contributions through the end of this past school year, but donors to the scholarship organization could not claim the credit beyond that for future school years. That was the kind of status quo after the Montana Supreme Court's decision. Obviously yesterday's decision reverses that status quo, and presumably the taxpayers will be able to claim the credit going forward.

 

      But it was this weird situation where the scholarship organization had raised the money when the Montana Supreme Court's decision came down and there was a question of whether or not they could actually disperse scholarships. And there was basically a kind of Solomonic baby approach taken by the Court where they could disperse those funds, but taxpayers could not claim the credit for contributions on a going-forward basis. Now, presumably that's no longer the case. But I guess that will work itself out on remand back in the state court.

 

      As to your first question, the probation with religious organizations. I just have to say, I'm not familiar enough with that area. Our focus -- we are not a religious liberty firm. We practice in four areas. One of those is defending school choice programs across the country. Obviously, those cases involve a lot of religious liberty issues, particularly when choice opponents rely on Blaine Amendments to attack choice and take choice away from kids. So my expertise really is cabined to that area. And I'm not too familiar with that. I mean, certainly, there are broader statements in yesterday's opinion that address religious status discrimination more broadly, not just in the context of this particular educational choice program, but how that language will carry over into other context. I just -- I frankly don't have that expertise and haven't given it much thought.

 

Caller 6:  Here in Georgia, they really use community service to "reacclimate" a lot of the probationers here back into the community, helping them with the community. And a lot of these organizations that are doing a great job are religious organization. But because of the "wall of separation" between state and religion, these organizations are denied -- probationers can go anywhere they want, but they don't get credit for going to a community service organization that's -- they can't do the 20 step program because they start it and end it with a prayer. There's things that are ludicrous. So I'm just wondering if there's any way that you think the language is broad enough, other than people yelling, dicta, dicta, dicta?

 

Michael Bindas:  I just don't know. But certainly there are other cases on the Court's docket that also kind of touch on some of these issues. The Fulton case out of the Philadelphia foster case that's on the docket for next term, that would probably bear a little more closely on that question. I wish I could give you a better answer on that, I just -- my focus here, really, is on the educational choice issue and I just haven't given much thought, and more importantly, don't have the familiarity with how the probation community service credit scheme works. There may well be different factors that distinguish that from this case and I'm just not informed enough about the program to have a good sense of how directly, if at all, yesterday's opinion would bear on Georgia's policy. I'm sorry, I wish I could do better than that, but I can't.

 

Nick Marr:  Thanks Michael. We'll go to the next caller.

 

Caller 7:  The Court's Establishment Clause jurisprudence had developed what's come to be called the pervasively sectarian doctrine that sort of categorically prevents religious entities from receiving public money. Is this case kind of the nail in the coffin of that doctrine, do you think?

 

Michael Bindas:  Personally, I think Trinity Lutheran, as much as this one, put the nail in that. And even before that, there was Mitchell v. Helms where a four-justice plurality talked about the pervasively sectarian doctrine and how it was rooted in 19th century anti-Catholic bigotry. There's not language officially declaring the pervasively sectarian doctrine dead. But, for all intents and purposes, starting with Mitchell through Trinity Lutheran through Espinoza, I don't think there is anything left to it. The government cannot discriminate based on religious status, whether that's between pervasively religious organizations as opposed to just mildly religious organizations, or whether it's between all religious organizations and all non-religious organizations. In either case, that type of status discrimination is impermissible and runs afoul of the Free Exercise Clause. So as a practical matter, I don't think that there is anything left to this notion of the pervasive sectarian doctrine.

 

Caller 7:  Thank you.

 

Nick Marr:  It looks like we don't have anymore questions at this time. Michael, I'll give you a chance for some closing remarks before we finish up here.

 

Michael Bindas:  I just want to reiterate what I said at the outset, that really the winners in this opinion are families throughout this country who simply want the ability to choose the schools that are best for their kids. Parents know better than government what will work for their children's education. Parents should be empowered to make those choices and this decision is going to go a long way in empowering them to make those choices. So we are thrilled, clients are thrilled, and I think families across the country are thrilled at the result.

 

      So thank you for your patience and hearing me talk about it.

 

Nick Marr:  Great. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. And keep an eye out for emails announcing upcoming Teleforum calls. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.