Quiz #82 The Higher Law vs. the Lower Law

Religion Law Quizzes #82 and #83 are closely related and they (particularly Religion Law Quiz #83) highlight some really important foundational legal principles in federalism form of government.  So, with that in mind, let’s see how you do. 

 

In Espinoza v. Montana Dep’t of Revenue, the Montana Supreme Court had entirely invalidated a scholarship program because the Montana Supreme Court believed it violated the Constitution’s “no-aid” provision which prohibited aid to religious affiliated schools.  On appeal to the Supreme Court the Montana Department of Revenue argued that there was no Free Exercise violation because the program had been wholly eliminated by the Montana Supreme Court.  But the U.S. Supreme Court rejected this argument.  Why did the Supreme Court rule that the Free Exercise Clause had been violated when the Montana Supreme Court had wholly voided the scholarship program? 

 

(Scroll down for the answer)

 

Answer: In a nutshell, the Montana Supreme Court erred by first applying state law rather than federal law.  But even that short anecdotal answer misses some important nuances.  Please read the following four (4) paragraphs from the Supreme Court’s decision. 

 

The Department argues that, at the end of the day, there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According to the Department, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit.

 

Two dissenters agree. Justice GINSBURG reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, post, at 2281, and Justice SOTOMAYOR describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause, see post, at 2292, 2294 – 2295.

 

The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program. 393 Mont. at 466–468, 435 P.3d at 613–614.

 

The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court's error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. Had the Court recognized that this was, indeed, “one of those cases” in which application of the no-aid provision “would violate the Free Exercise Clause,”id., at 468, 435 P.3d at 614, the Court would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, the Court would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana Supreme Court's failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds.

 

Espinoza v. Montana Dep't of Revenue, 207 L. Ed. 2d 679, 140 S. Ct. 2246, 2261–62 (2020)

 

Disclaimer: The Religion Law Quizzes are provided as a service to you. They are intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

HERE IS AN AI GENERATED SUMMARY OF TODAY’S PODCAST

Welcome to a fascinating episode of the Religion Law Podcast. In this episode, your host, Michael Fielding delves deep into a critical religious freedom case - Espinoza vs. Montana Department of Revenue. This episode not only discusses this case meticulously but also covers the intricacies of the legal principles involved and the impact it has on the federalism form of the government.

The discussion begins with a recap of the case where the Montana Supreme Court had entirely invalidated a scholarship program, which was argued at the United States Supreme Court. The episode seeks answers to why the free exercise clause had been violated when Montana Supreme Court had utterly voided the scholarship program. It is a detailed exploration of the case that significantly contributes to the binding legal prin

Episode Transcript

(00:01):
Welcome to another episode of the Religion Law Podcast, where you learn about
religious freedom and other religion law-related topics through a short question-and-answer format.
I'm your host, Michael Fielding.
Let's see how you do on today's quiz.
Welcome to Religion Law Quiz number 82, numero ochenta dos. All right.

(00:25):
If you will remember from at the end of quiz number 81, I said, hold on, pay attention.
Quizzes 82 and 83 are closely related and they are important because they highlight,
particularly quiz number 83, they will highlight some really important foundational
legal principles in the federalism form of government.

(00:47):
So with that, let's see how you do on today's quiz.
In Espinoza versus the Montana Department of Revenue, the Montana Supreme Court
had entirely invalidated a scholarship program because the Montana Supreme Court
believed it violated the Constitution's no-aid provision,
which prohibited aid to religious-affiliated schools.

(01:08):
On appeal to the United States Supreme Court, the Montana Department of Revenue
argued that there was no free exercise violation because the program had been
wholly eliminated by the Montana Supreme Court.
But the U.S. Supreme Court rejected this argument.
Why did the Supreme Court, the U.S.

(01:30):
Supreme Court, rule that the free exercise clause had been violated when the
Montana Supreme Court had wholly voided the scholarship program?
And I need to interject this little footnote explanation right here.
The question and answer that I'm posing here gets into a key fact that I hadn't brought up previously,

(01:51):
which is when the program was brought before the Montana Supreme Court,
the Montana Supreme Court ended up saying, well, because we have this provision
here, the whole thing is invalid.
Now, therefore, we're voiding the whole scholarship program.
And the U.S. Supreme Court ruled that the free exercise clause was violated

(02:12):
when the Montana Supreme Court wholly voided the scholarship program.
And the question is, why was that?
All right. I realize that may be a bit of a complicated question.
So let's just dive into the answer so you can learn the legal principle here.
So in a nutshell, the Montana Supreme Court erred by first applying state law

(02:34):
rather than federal law.
But even that short anecdotal answer that I just gave to you misses some important nuances.
So I'm going to now read for you.
Four paragraphs from the Espinoza decision.
And the fourth paragraph in particular is really important.

(02:56):
And when I get to it, I'll say, wake up, here's paragraph number four.
And I'll have the specific citation in the show notes. So here is the quote.
The department argues that at the end of the day, there is no free exercise
violation here because the Montana Supreme Court ultimately eliminated the scholarship
program altogether. together.

(03:16):
According to the department, now that there is no program, religious schools
and adherents cannot complain that they are excluded from any generally available benefit.
Two dissenters agree. Justice Ginsburg reports that the state of Montana simply
chose to put all private school parents in the same boat by invalidating the scholarship program.

(03:38):
And Justice Sotomayor described the decision below as resting on state law grounds,
having nothing to do with the Federal Free Exercise Clause.
The descriptions are not accurate. The Montana legislature created the scholarship program.
The legislature never chose to end it for policy or other reasons.

(04:00):
The program was eliminated by a court and not based on some innocuous principle of state law.
Rather, the Montana Supreme Court invalidated the program pursuant to a state
law provision that expressly discriminates on the basis of religious status.
The court applied that provision to hold that religious schools were barred

(04:23):
from participating in the program.
Then, staying no other mechanism to make absolutely sure that religious schools
received no aid, the court chose to invalidate the entire program.
All right, now we're to paragraph four. So wake up if you've fallen asleep.
So here's paragraph four. Quote, the final step in this line of reasoning eliminated

(04:46):
the program to the detriment of religious and non-religious schools alike.
But the court's error of federal law occurred at the beginning.
When the court was called upon to apply a state law no aid provision to exclude
religious schools from the program, it was obligated by the federal constitution
to reject the invitation.

(05:08):
Had the court recognized that this was indeed one of those cases in which application
of the no-aid provision would violate the free exercise clause,
the court would not have proceeded to find a violation of that provision.
And in the absence of such a state law violation, the court would would have
had no basis for terminating the program because the elimination of the program

(05:32):
flowed directly from the Montana Supreme Court's failure to follow the dictates of federal law.
It cannot be defended as a neutral policy decision or as resting on adequate
and independent state law grounds.
Close quote. Okay, big paragraph.

(05:53):
A lot that we just stabbed there. Let's try to condense it down into something
easy to understand and very relatable.
So what you have here in very, very simple terms is the Montana Supreme Court
is looking at the provision. They say, hey.

(06:15):
This provision violates the no aid provision in our state constitution.
Therefore, it's invalid.
And then to make sure that there was no possibility that the religious affiliated
schools would get aid, the Montana Supreme Court just invalidated the scholarship program altogether.
And that wasn't what the legislature did. It was just a court saying,

(06:38):
we think it violates the law.
Therefore, the whole thing's invalid. Boom. That's what they ruled.
The Supreme Court is coming back here and saying, Montana, you got it wrong.
And the reason the Supreme Court is saying Montana got it wrong is because it
essentially started the analysis from the wrong direction.

(06:58):
The Montana Supreme Court was looking at the lower law, which was the state law.
And the United States Supreme Court says you have it backwards.
You don't start with the lower law. You start with the higher law and you make
your decisions based on what the higher law is.

(07:20):
You don't go down and look and see what the lower law says because,
and then the US Supreme Court here says, guess what?
But when you look at it from the higher law perspective, you will see that there
wasn't any violation of the federal constitution and the higher law controls over the lower law.

(07:46):
And therefore, because it was permissible under the higher law,
the invalidation of the scholarship program based on the lower law was inappropriate and wrong.
All right, let's just let that sink in for a minute.
That principle that I've just articulated, I just want you to pause and think

(08:10):
about that because this is something really, really important.
And it's important both from a legal perspective,
and I'll tell you on a very personal level when you get into religious beliefs
and doctrine and things like that, I think the principle in that context is equally applicable,

(08:32):
that when you have a higher law and a lower law,
you never start, it's wrong to start the analysis from the lower law.
You start the analysis using the higher law and ask, is this invalid under the higher law?
And if you do it that way, you get the right approach.

(08:54):
There's a lot here to think about, and we just do religion law quizzes,
We're not going to get into religious doctrine or things like that here on this quiz show.
You can contact me offline and we can chat about that on a personal basis somewhere else.
But what's more important here is this principle of the higher law.

(09:16):
The Constitution is going to control over the lower law with the states.
Okay. Now, I said quizzes 82 and 83 are very closely related.
Related so stay tuned religion law quiz number 83 is coming up soon i'll see you on that quiz thanks,

(09:38):
thank you for listening to today's episode remember religion law quizzes are
for educational purposes only and are not intended to be relied upon as legal
advice if you have found this episode to be helpful please share it and leave
a review until we meet again keep being.
Music.