- The U.S. Supreme Court is considering a potential landmark case that could allow religious schools to receive publicly-funded scholarships, even if a state’s constitution says they can’t.
- The case involves a Montana program that was ended after the state realized it was unintentionally being used to aid religious schools using taxpayer money.
- Opponents argue that the provision, which prohibits public funds from going to religious organizations, is rooted in religious discrimination.
Montana Sparks Lawsuit After Ending Scholarship Program
The Supreme Court of the United States began hearing Wednesday what could potentially be a landmark case concerning the separation of church and state for schools.
Specifically, the Court is considering a case out of Montana that could allow religious schools to receive publicly-funded scholarships, even if a state’s constitution prohibits such a move.
The situation that now sits upon SCOTUS’s doorstep began in 2015 when the Montana state legislature created a tax-credit program for people wanting to donate to a scholarship fund.
That program allowed people to donate dollar-for-dollar tax credits up to $150.
An organization named Big Sky then capitalized on the program and created a fund to help parents wanting to send their children to private schools; however, there was a catch: 12 of the 13 schools that Big Sky sent money to were religious. In fact, about 70% of private schools in the state are religious schools.
Those donations directly conflict with Montana’s state constitution, which says the state cannot set aside public money for “…any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Such a law is known as a “no-aid” provision.
Montana later decided to cut the program before eventually being sued on the basis of religious discrimination. One attorney argued that the only reason Montana shut down the program was because it included religious schools. That attorney also argued that the U.S. Constitution mandates equal protection under the law. In other words, Montana must apply the tax-credit program equally between private schools, both religious and nonreligious.
“Once you have these programs, you have to treat families going to religious schools equal to families going to nonreligious schools,” that attorney, Erica Smith, told NPR.
The case’s lead plaintiff—Kendra Espinoza— had also been vocal about her need for such a program.
In an interview with The Washington Post, Espinoza said not only did she have to pick up extra jobs but she also “pretty much sold everything in my house that wasn’t tied down” just to afford to send her two daughters to a religious private school. In addition to that, her two daughters took on jobs mowing lawns and cleaning offices to raise money.
Espinoza’s accounts are a far cry from the common stereotype that only rich people send their children to private schools, with Espinoza even directly saying that her family needs assistance to be able to afford private school.
“Baby” Blaine Amendments
While Montana didn’t introduce its tax-credit program until 2015, Espinoza’s case is also rooted in law that dates back to the 1800s.
In 1875, a politician by the name James G. Blaine introduced a similar “no-aid” amendment to the U.S. Constitution. That ended up failing, but different versions of it were adopted in most states, with Montana passing theirs in 1889.
Most historians have referred to the original proposed amendment as the “Blaine Amendment,” with the later ones being dubbed “baby” Blaine Amendments. Historians also agree that such amendments were only adopted in a bigoted retaliation to the mass immigration of Catholics into the U.S.
Thus, since the law was borne of bigotry against Catholics, Espinoza and her lawyers argued that it violates the U.S. Constitution by discriminating against religion.
On the other hand, the state of Montana disputed the discrimination claim, pointing out that its “no-aid” provision was revised and rewritten in 1972.
The state even had all but one of the surviving delegates at that 1972 convention submit a brief discussing how the revised Constitution was debated. According to NPR, one delegate even says that a number of the delegates were also ministers, with many of them speaking “very ardently in favor of public funds not going to religious education.”
That delegate, Mae Nan Ellingson, also argued that the state passed the “no-aid” provision to “protect religious liberty,” saying the state feared that if religious organizations were included, someone in the future might try to attach conditions to the aid.
The case eventually made its way to the Montana Supreme Court, where the Court ruled the state had not violated religious protections granted by the U.S. Constitution.
U.S. Supreme Court Takes Up the Case
That decision, however, was then appealed to the SCOTUS, which began hearing arguments Wednesday.
In its brief, Montana continued to defend its no-aid provision, saying, “The No-Aid Clause does not prohibit any religious practice. Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools.”
On Espinoza’s side, the Trump Administration and Education Secretary Betsy Devos have backed her. The move is not an unexpected one for Devos, who attended private school herself and later sent her kids to private schools. Devos is also a heavy advocate of “faith-based education.”
With this case now reaching SCOTUS, any decision could have far-reaching effects. Including Montana, 38 states have no-aid provisions.
If Montana wins, its tax-credit program would remain shut down. It would then continue to be able to keep public money away from religious schools, but religious schools would still be able to receive federal funds.
However, if the state loses, religious schools across the country—regardless of previous state law—might be able to access scholarship funds paid for by taxes.
Currently, the latter decision appears to be the more likely outcome. In recent years, the Court has become more conservative on church vs. state issues. In 2017, it decided that Missouri couldn’t ban a church school for applying for a state grant that fixes up playgrounds. Since then, the court has only grown more conservative, with Justice Brett Kavanaugh joining the bench.
See what others are saying: (NPR) (The Washington Post) (Reuters)
Campaign Season Gets Rolling This Month With Primaries in 13 States
Several of the contests taking place this month will serve as important tests for Trump-backed candidates and how much power the former president still has over the GOP.
May Primaries Start With Key Race in Ohio
The 2022 midterm season is officially heating up this month with 13 states heading to the polls.
Voters in Indiana and Ohio will kick off the busy month on Tuesday with several highly anticipated races, including one closely watched contest for the seat being vacated by long-time Senator Rob Portman (R-Oh.)
The fight for Portman’s seat has been a heated one: candidates have spent tens of millions of dollars, held numerous debates and forums, and at one point, two of them even got into a physical confrontation.
The main reason there are so many eyes on this race is because it will prove to be a key test for former President Donald Trump and the influence he has over the party. While Portman has generally been moderate and, at times, more readily critical of Trump than many others in his party, the Republican primary campaign has basically been a fight to see who is the most in line with Trump.
According to FiveThirtyEight, all but one of the seven Republican senate candidates embraced the former president’s election fraud lies as they fought for his coveted endorsement in a state he won by eight points in both 2016 and 2020.
Trump, for his part, ultimately ended up endorsing Hillbilly Elegy author J.D. Vance in a move that surprised many, because Vance had previously been vocally opposed to the former leader and his competitors had spent months running ads noting that fact.
However, the fight for Trump’s backing appears to have been worth it. Last week, a Fox News poll found that support for Vance has surged by double-digits since Trump’s endorsement, making him the front-runner.
Still, as FiveThirtyEight reports, “other factions of the party haven’t given up the fight either — which means the primary will be a direct test of how much clout Trump has when other Republican elites dare to defy him.”
Meanwhile, there are also concerns regarding the ongoing legal battle over Ohio’s congressional map and the confusion that has caused for the state’s election calendar. For weeks, it was widely believed the state’s primaries would be pushed back after the Ohio Supreme Court ordered GOP lawmakers to redraw their map.
The map had been gerrymandered to give Republicans 12 out of the 15 congressional seats in the state even though they had only won around 55% of the popular vote. Ohio voters also previously passed a constitutional amendment in 2018 that effectively banned partisan gerrymandering.
The election, however, is still going forward anyway, even as early voting was down a whopping 40% from the last election, and the legislative races will not be on the ballot Tuesday, meaning there will have to be a second primary, which will likely drive down turnout even more.
Other Major Races This Month
There are also other notable contests scheduled for later this month. On May 17, there will be two additional races for seats vacated by Republican senators in North Carolina and Pennsylvania that will serve as important indicators of the former president’s sway over the party.
Meanwhile, in Georgia, the main Trump test focuses on two statewide races for the positions currently held by Gov. Brian Kemp (R) and Secretary of State Brad Raffensperger (R). The two infamously angered Trump after they refused to help him overturn the election, and as a result, many are watching to see if the former president’s full-fledged pressure campaign against them will work.
In Georgia and other battlegrounds voting this month, Democrats are also hoping they can make inroads — particularly in Pennsylvania. But recent polls have not painted a good picture for the party. Last week, an NPR/PBS NewsHour/Marist poll found that 47% of voters said they were more likely to vote for the Republican in their district, while just 44% said they would back Democrats.
The poll marked the first time in eight years that a Marist survey found the GOP with an advantage for congressional ballot tests.
See what others are saying: (NPR) (FiveThirtyEight) (PennLive)
New York’s Highest Court Strikes Down Democrat-Gerrymandered Map
The move represents a major blow to Democrats, who stood to gain as many as three seats in Congress if their map had been accepted.
Appeals Court Ruling
The New York State Court of Appeals struck down a congressional map drawn by the state’s Democrats Wednesday, dealing the party a major blow.
In the decision, the state’s highest court agreed with Republicans who had argued that the map was unconstitutionally gerrymandered to benefit Democrats. The justices called the map “substantively unconstitutional as drawn with impermissible partisan purpose.”
The court also condemned the Democrats for ignoring a constitutional amendment approved by voters in 2014 that aimed to limit political influence in redistricting, which included the creation of an independent entity to draw maps that the legislature would then vote on. However, the commission created to prevent partisan gerrymandering was unable to decide on a map because of its own partisan stalemate. As a result, Democrats in the legislature took it upon themselves to draw a final map.
But the version that the legislature passed and New York Gov. Kathy Hochul (D) signed into law re-drew lines so that Democrats could have gained as many as three new seats in the U.S. House of Representatives.
Such gains would be highly significant in the upcoming 2022 midterm elections, where Republicans are expected to make substantial gains and may very well take back the House. Unsurprisingly, Republicans sued, and a lower court struck down the map.
In their order, the Appeals Court justices took away the legislature’s ability to make the map and instead delegated that power to a court-appointed “neutral expert.”
While the judges did say there was enough time to finish the map before the primary elections in June, they also added that the Congressional contests would likely need to be moved to August. Races for governor and other statewide officials, however, would stay the same.
The Appeals Court ruling is unique in that it targets Democrats, but it also comes as part of the broader trend of state courts cracking down on gerrymandering — though most other instances have stemmed from GOP-drawn maps.
In just the first four months of 2022, state courts in Ohio, North Carolina, Kansas, and Maryland have all struck down redistricting plans crafted by lawmakers.
Unlike the New York ruling, some of those other courts have implied that they will still allow those maps to be used in the 2022 elections. Such a decision would very likely disadvantage Democrats even more.
See what others are saying: (The New York Times) (NPR) (The Washington Post)
McCarthy Warned Far-Right Lawmakers Could Incite Violence After Jan. 6 in New Audio of Leaked Call
The conversations represent a marked difference from the public efforts of McCarthy and other Republican leaders to downplay their members‘ actions.
Four days after the Jan. 6 insurrection, House Minority Leader Kevin McCarthy (R-Ca.) expressed concern about far-right Republicans inciting violence and openly voiced support for censoring them on Twitter, according to audio published by The New York Times on Tuesday.
The recordings, which come from a call among party leaders and aides on Jan. 10, are by far the clearest evidence top Republicans acknowledged that their members played a role in stoking violence before the insurrection and threatened to do so after.
They also emphasize the vast difference between what top Republicans, especially McCarthy, said behind closed doors, and how they downplayed and ignored the actions of their members in public.
One of the most notable elements of these recordings is that McCarthy and the others explicitly identified several individuals by name. They focused mainly on Reps. Matt Gaetz (R-Fl.) and Mo Brooks (R-Al.) as the primary offenders.
In the audio, McCarthy can be heard flagging Gaetz right off the bat.
“Tension is too high. The country is too crazy,” he added. “I do not want to look back and think we caused something or we missed something and someone got hurt. I don’t want to play politics with any of that.”
Specifically, McCarthy and the others talked about how Gaetz had gone on TV to attack multiple Republicans for being unsupportive of former President Donald Trump after Jan. 6. They particularly expressed concern over his targeting of Rep. Liz Cheney (R-Wy.), who was a member of the leadership team and had already been facing threats.
Others on the call also noted that Brooks had spoken at the rally before the insurrection, where he made incendiary remarks that many have viewed as direct calls to violence. McCarthy said the public comments from his members “have to stop,” adding he would call Gaetz and have others do the same to tell him that this “is serious shit” and “to cut this out.”
Rep. Steve Scalise (R-La.), the second-ranking House Republican, asserted at one point that Gaetz’s actions were “potentially illegal.”
“Well, he’s putting people in jeopardy, and he doesn’t need to be doing this,” McCarthy responded. “We saw what people would do in the Capitol, you know, and these people came prepared with rope, with everything else.”
Republicans on the call also mentioned incendiary remarks from other members, including Reps. Louie Gohmert (R-Tx.), Barry Moore (R-Al.), and Lauren Boebert (R-Co.). Cheney pointed to Boebert as a security risk, noting she had tweeted out incredibly sensitive information about the movements of top leaders like House Speaker Nancy Pelosi (D-Ca.) during the attack on the Capitol.
“Our members have got to start paying attention to what they say, too, and you can’t put up with that shit,” McCarthy added later. “Can’t they take their Twitter accounts away, too?”
McCarthy in Hot Water
The newly published recordings also come just days after The Times reported that McCarthy had told members on a call after the insurrection that he would urge Trump to resign.
McCarthy initially called the reporting “totally false and wrong,” but shortly after his denial, The Times received permission from their source to publish audio where he can be heard saying precisely that.
McCarthy, for his part, has tried to spin the situation, claiming that his remarks were still true because he never actually followed through on the plan to call Trump.
Still, the situation prompted widespread backlash from the far-right faction of the Republican party.
Multiple people expressed hesitancy about their support for McCarthy as Speaker of the House if Republicans take control of the chamber in the midterm elections. Some said they could not trust him.
Speaking on his show Tuesday, Foxs News host Tucker Carlson called McCarthy “a puppet of the Democratic Party.”
Gaetz also responded with ire, tweeting out a statement in which he referred to the call as “sniveling” and said of McCarthy and Scalise: “This is the behavior of weak men, not leaders.”
Other members mentioned in the call, however, appeared to brush it off. In a statement to Axios, Moore claimed that the story was engineered by “RINOS” (Republicans in Name Only), and that “Republicans will be more united than ever after taking back the House this November.”
It currently remains unclear whether these revelations with pose any long-term threat to McCarthy, but if Trump is any indication of the far-right party line, the House leader may be in the clear.
After The Times published the audio of McCarthy saying Trump should resign, the former president told The Wall Street Journal that the relationship between the two men was untroubled.
“I think it’s all a big compliment, frankly,” he added. “They realized they were wrong and supported me.”