America’s history with religion is a complex one; religion has been both liberating and oppressive, a formative and destructive force in society today. And it still permeates modern debate, hanging as a backdrop to the contentious issues of our time: abortion, gay marriage, sex education in schools. Its largest qualm in modern society concerns separation of church and state. The founding principles of American law and society guide that religion should not be in the forefront of policy; and yet with each debate that enters the machinations of the civic, ideas of religion seep into most arguments.
Recently this issue of separation has taken form in a court case originating from Montana, Espinoza v. Montana. The case requires a little bit of background; according to the synopsis given by the National Review, the issue arose when Montana lawmakers barred certain tax refund money from being used to send children to private, religious schools and institutions (National Review). Montana’s constitution has the so-called Blaine Amendment, which forbids public funds from being used in non-secular institutions. The controversy comes in with how some believe law violates both the Religion Clauses of the Constitution, as well as the Equal Protection Clause (Oyez). The case has made its way up through circuits to the Supreme Court; and, as expected, it does not lack controversy. Linda Greenhouse, an opinion writer for the New York Times, made the observation in her opinion piece that the case is almost not about the legality itself, but rather of framing and selling one side to the public (New York Times). “It was easy to see which storyline was winning,” she writes. “‘School Choice Battle For Religious Freedom’ was the headline on USA Today’s preview of the argument” (New York Times).
Greenhouse, in this other article of hers that she linked to her first, notes the apparent trend happening currently in the Supreme Court. There seems to be a trend towards the “softening” of line of Church and State. Proponents of allowing this money to be used for private, religious schools seem to have public support. Perhaps if this was an isolated case, then it would not matter in the grand scheme. But as it stands, this poses complex and troublesome questions for American law. Religious values are important, and they can positively inspire morality and self-sacrifice. But in a non-homogenous country, where the government is supposed to represent all people of the union—religious or otherwise—then even seemingly small issues like allowing people to fund their private, religious education using scholarship refunds becomes dicey. Showing preference to one group over another is not only unconstitutional, but goes against the integral ideals of American society today. Each person should be equal to his neighbor, both in the eyes of society and in the eyes of the law.
An NPR article brings up a good point about the Equal Protection Clause. Senior attorney Erica Smith maintains that the law is unconstitutional if it allows funding for private, nonreligious institutions, but not for religious ones (NPR). She also has qualms with the amendments that bar public funding to go to private schools, saying they arose in the 1800s as a way to discriminate against immigrant Catholics (NPR). There could have been poor intent when writing this amendment, but that is incredibly subjective and difficult to prove. The law is in a constant struggle of balancing treating everyone equally while not stepping on any toes, and sometimes it can be complicated and difficult to perceive. Her comments simply serve to highlight the tension between religious and nonreligious groups in this discussion.
The ramifications of this case will be felt for years. It sets a standard. In years and cases past, the only question was if states should be allowed to give financial assistance to religious institutions. Now, it’s whether states must, in order to comply with the Equal Protection Clause (NPR). Requiring states to have taxpayers fund religious activities, even if indirectly, starts a path down a dangerous road. Is it ethical? Is it equal to others? On paper, these questions are difficult enough on their own to answer. In practice, these questions that American citizens have to ask themselves just got much more difficult. Religion has always been a part of the United States, and will always be. The law has to adapt and change accordingly.