Roberts: RINO Punter No More (Religious Funding)

Not only is the Court wrong to decide this case at all, it decides it wrongly. Because this decision further slights both our precedents and our history and weakens this country’s longstanding commitment to a separation of church and state beneficial to both, I respectfully dissent.

People who appeal to originalism often seem to get history wrong. At the very least, they look at history and see certain strands of it and look past others.  The dissent in the CFPB opinion has the better argument as to history as much as constitutional analysis as a whole.  The same is true as to the dissents (particularly Breyer and Sotomayor, who is quoted in a "cleaned up" fashion here) in the religious funding case.  I'm a separatist at heart but at the very least there is "play in the joints" here regarding a matter that has arguments on both sides. See, e.g., my comment here.  

At the very least, and this is all they needed, they argument is strong enough to give the state the benefit of the doubt.  See, e.g., here regarding a brief in support of certain religious groups.  Both sides here have an argument.  On some level, equally funding religious schools in a voucher program is fair.  But, religious liberty and policy is complicated as seen by the splits since even before the First Amendment was ratified.  Justice Sotomayor had a good argument even when we were dealing with schoolyard pavement in Trinity Lutheran.  It is better now.

As noted by RBG, this is particularly a questionable maximalist decision, but Roberts is not a consistent minimalist (even his minimalism -- as seen in his abortion opinion -- at times is selective).  To enforce a state limit, one that many states have in some form, the aid program was removed across the board.  But, it is said that the approach here violates the Free Exercise Clause by selectively not funding religious schools.  Again, you can arguably read the provision that way, but it is not how it was understood from the beginning.  States not funding religious schools do not "prohibit free exercise."  Since the days of Jefferson and Madison, and it really is insulting to try to say otherwise but you have to try apparently since Madison is after all the "Father of the Bill of Rights," in fact, public funding of religious education was seen as the opposite.  

The majority, though its logic arguably goes further, says the state can simply not fund non-public schools at all.  This might on some level be good policy as a way to promote public schools.  All the same, it is not necessary to do so.  The concern here involves funding religious schools.  Separation of church and state arises from the special complications in that specific area.  Again, and Justice Breyer's concurrence underlines the point, there very well might not be "one answer" there as a whole.  So, there is diversity of "no aid" provisions in state constitutions here.  And, this isn't about school playgrounds.  This is about direct funding of religious education.  Many religious see it as problematic as a matter of religious liberty to force people to fund the promotion of other faiths.  From the days of Madison. 

The complaints about anti-Catholic bias, "Blaine Amendments," is as spelled out the brief is confused.  A basic problem is that this is a modern day provision that as Justice Sotomayor notes (though the same can be said about the originals to some degree) that received support from religious groups including Catholics.  It was passed after JFK voiced strong support of separation of church and state in that area.  Plus, the general principle goes back to the beginning, including promoted by religious groups like the Baptists.  Finally, concern about Catholicism in the 19th Century was not totally an act of bigotry.  It very well involved a foreign led religion that promoted anti-American principles in certain particulars.  

To add insult, consistency is not well applied here.  If anti-Catholic bigotry is your concern, you might recall that mixture of church and state antagonized it.  Thus, part of the history was a de facto Protestantism in public schools that antagonized the early debates here.  Modern church state law addressed that, banning state led prayer and Bible reading.  Gorsuch and Thomas in particular, however, want to water down the Establishment Clause considerably.  As seen in the peace cross case, the other major approach would be an equality principle.  But, religious liberty is not merely an equal protection principle.  And, one reason for separation here is that given the reality of numbers and so forth, mixing church and state can hinder that principle in practice. 

It remains to be seen how far this will be taken.  Will a religious equality principle result in allowing religious groups to discriminate, even in areas seen as part of the public sector?  "Free exercise" can involve private discrimination.  This underlines that the whole affair is complicated and cannot be settled with simplicity without some nuance.  In practice, it is likely to be selective.  Thus, e.g., religious/moral beliefs involving abortion block funding, even though sometimes religious liberty would allow personal usage to carry out personal beliefs.  New York has yet to clarify that "internet ministers" can officiate weddings though the law specifically allows certain types of ethical groups to do so.  The fix supported by my own state senator doesn't fix things across the board -- it allows one-offs.

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The other case decided -- eight to go as we go into July for the first time in some time without all the cases handed down -- is much less controversial though of some economic significance. A generic sounding term like "Booking.com" still might obtain trademark protection unless it is seen as generic to consumers.  The company was given a chance to make their claim in an opinion by RBG with only Breyer dissenting (Sotomayor noted separately the limited nature of the rule).   A conference will take place tomorrow, with various things to cover, with orders on Thursday. 

(The case was the first telephonic argument and also was argued by two women. The government advocate lost her case, but did have a baby boy later in the month)