//  6/30/20  //  Quick Reactions

This morning’s Supreme Court decision in Espinoza v. Montana was not exactly a surprise. At argument, it was clear that the five conservative Justices thought that Montana could not refuse to fund religious schools, and that’s what the Court held today by a 5-4 vote (with the conservative Justices in the majority). 

But the fact that the decision was expected should not conceal how different Espinoza is from a different, but still relatively recent, era of Establishment Clause cases, even if the cases have been trending in this general direction. The Establishment Clause has experienced a trajectory that is similar to the equally dramatic shift in the Court’s racial discrimination cases over a similar time horizon.  That trajectory is in part a(nother) warning to progressives about how the law can change, and quickly, when you lose the courts. But in some respects, that should also be a consolation (at least if progressives can win elections and then learn to focus on courts)—the law can change in either direction, after all.

But while the Court’s decision in Espinoza is similar to the trajectory of the law of racial discrimination in some respects, it also offers a striking contrast in others.  Specifically, some Justices’ willingness to recognize religious discrimination on the one hand and their unwillingness to recognize racial discrimination on the other is yet another reminder of how impoverished existing doctrine is on racial discrimination, even while, outside of the Court, there has been some recent openness to recognize the extent and depth of racial discrimination in this country.


First, Espinoza and the trajectory of First Amendment and equal protection doctrine. Espinoza held that it violates the free exercise clause of the First Amendment for a state to refuse to fund religious schools.  In sweeping language, the Chief Justice wrote: “A State need not subsidize private education.  But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

That is a wild change from where the First Amendment was just a few decades ago.  At that time, the question was whether the Establishment Clause even permitted states to fund or offer other aid to religious schools or whether it instead required the state to keep out of religious institutions entirely, including through public funding and public aid. (In both Meek v. Pittenger and Wolman v. Walter, both decided in the 1970s, the Court invalidated different state aid programs that provided different forms of support to religious schools. The Court concluded that the programs violated the Establishment Clause because they constituted impermissible government support for or entanglement with religion.) It’s quite a change from “the First Amendment prohibits states from providing aid to religious schools” to today’s conclusion that “the First Amendment requires states to provide aid to religious schools.”

But it’s really no more of a change than occurred in the Court’s cases on racial discrimination.  Also in the 1970s, it was uncertain whether the Constitution’s equal protection clause forbade government policies that produced disproportionate burdens on different racial groups, and in particular historically disadvantaged racial minorities. The question was sufficiently unsettled that there was disagreement among the lower courts, and the Supreme Court took up a case to resolve the question. In Washington v. Davis, the Court ended up saying that the Constitution does not prohibit laws or government policies that merely have racially disparate effects. But the point is that, less than 50 years ago, it was up for debate whether the Constitution contained such a prohibition.

Fast forward a few decades, and now the question is not whether the Constitution prohibits government laws or policies with racially disparate effects, but whether the Constitution even permits Congress, in some cases, to prohibit laws or policies that produce disparate effects.  In particular, several statutes contain what is known as “disparate impact” liability—liability, in some situations, where a policy produces racially disparate effects, even if the policy was not motivated by a desire to discriminate on the basis of race.

In Ricci v. Destefano, the Court was invited to weigh in on whether the Constitution allowed Congress to create disparate impact liability.  The Court largely ducked the question, though the conservative majority suggested there was some tension between the Constitution’s guarantee of equal protection and congressional statutes that prohibited laws or policies with racially disparate effects.  (My colleague Richard Primus predicted this collision a decade before the Court acknowledged it, and then later explained how Ricci closed off some ways of reconciling the tension while leaving others open.)

Several years later, when the Supreme Court said that the Fair Housing Act provided for disparate impact liability, it seemed liked the Court had backed away from the prospect of declaring disparate impact liability unconstitutional.  But that was when Justice Kennedy was still on the Court (the Fair Housing Act case was 5-4 with him in the majority with the more liberal Justices). So it may very well be that disparate impact liability will get on the Court’s radar once again. 

But whether or not it ultimately does so, the point is still that the Court’s jurisprudence has undergone a dramatic shift:  In the 1970s, serious people thought that the Constitution, of its own force, might prohibit government laws or policies that produce racially disparate effects.  Now, in 2020, people wonder whether the Constitution permits Congress to create statutes that prohibit government laws or policies that produce racially disparate effects.  What a few decades and Supreme Court appointments will do.

So that is how the Court’s religion clause jurisprudence has followed a similar trajectory to its equal protection clause cases:  A boomerang, over a period of decades, between what the Constitution used to prohibit to what it now requires.


But in other respects, the trajectory between the religion clause cases and the equal protection clause cases has differed. In particular, the Court’s ability to recognize when a facially neutral law or policy discriminates on the basis of religion versus race appears to differ quite a bit.  I wrote about this some when Masterpiece Cakeshop was decided. Specifically, how could the Court say that a comment by a Colorado Civil Rights Commissioner infected the adjudication of a case involving a generally applicable antidiscrimination statute when, at the same time, it said that the President’s announced plans for a Muslim ban did not infect his announced policy prohibiting all travel from several Muslim majority countries

Jessica Clarke wrote an article, Explicit Bias, that  extensively documents the two tracks of the Court’s antidiscrimination cases. On the one hand, the Court is increasingly willing to identify discrimination against white, Christian conservatives while at the time it is increasingly unwilling to identify discrimination against racial minorities or non-Christian religions.

Consider the contrast between Justice Alito’s separate opinion in Espinoza and the Court’s recent decision in the DACA case.  In Espinoza, Justice Alito wrote an impassioned concurrence decrying historical discrimination against Catholics and arguing that that discrimination led to the passage of the state amendments prohibiting funding to religious schools. In the DACA case, Justice Alito (together with every Justice besides Justice Sotomayor) joined an opinion that dismissed as “unilluminating” the President’s statements that Mexicans are criminals and rapists.

The Court dismissed those statements as not relevant to the challengers’ equal protection (I know it’s technically the due process clause) claim on the ground that the ultimate decisionmakers for the DACA rescission were the Acting Secretary of DHS and the Attorney General.***  But of course Justice Alito’s concurrence in Espinoza is rife with statements from people who were not the most relevant actors or the actual decisionmakers for the Montana constitutional amendment. Yet those statements are still relevant to assessing the historical context behind a decision and whether it is discriminatory. Either statements by other actors/non decisionmakers—including the actor *who is the boss of the Attorney General and the Acting Secretary of DHS*--are relevant or they are not.** Yet how different is Justice Alito’s ability to recognize century-old discrimination from his ability to recognize discrimination that persists today.



**This statement is additionally rich in light of the Court’s opinion in Seila Law v. CFPB, which further embraces the “unitary executive” theory—the idea that all executive officers are exercising the President’s will and subject to the President’s control.


***Read Jessica Clarke’s post on that aspect of the DACA decision here.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

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On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

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The Nineteenth Amendment helped cement the idea that the right to vote is a fundamental right inherent in citizenship