Espinoza v. Montana Dept. of Revenue (18-1195)

argument 18-1195

Espinoza v. Montana Dept. of Revenue

Supreme Court of the United States 1h 2m 6 speakers 8 chapters transcribed 8 days ago official recording ↗

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What constitutional question does Espinoza v. Montana raise about excluding religious schools from scholarship programs?

John G. Roberts 0:00

We'll hear argument this morning in Case 18-1195, Espinoza v. the Montana Department of Revenue. Mr. Comer?

Timothy R. Zick 0:09

Mr. Chief Justice, and may it please the Court, this case asks whether the Federal Constitution allows the wholesale exclusion of religious schools from scholarship programs. It does not. Yet Montana's Blaine Amendment requires that exclusion. As a result, the Blaine Amendment discriminates against religious conduct, beliefs, and status in violation of the Free Exercise Clause under Trinity Lutheran. The Montana Supreme Court disagreed. That Court held that barring religious schools from the program did not violate the Federal Constitution. This Court should reverse that judgment. Even respondents now concede that excluding religious schools from the program is unconstitutional. but they argue that the Court avoided this discrimination by invalidating the entire program.

Timothy R. Zick 1:02

This is wrong. The only reason the Court invalidated the program was because it included religious schools, and the Court's remedy did not cure its discriminatory judgment, nor should the remedy shield the judgment from review. Petitioners brought this lawsuit because they were denied scholarships based on religion, and they are still being denied scholarships based on religion. If the Court had shut down the program because it included Muslim schools or African American schools, there's no question that would be unconstitutional. We ask you to reverse. Respondents argue in the alternative that Locke allows them to exclude the religious schools and that this case falls within the play in the joints.

Timothy R. Zick 1:49

But that would allow the exception to swallow the rule. As Trinity Lutheran made clear, the rule is religious neutrality and Locke only a narrow exception. We argue that Locke is the exception that proves the rule. In Trinity Lutheran.

Samuel A. Alito 2:10

May I ask you some first of all questions about Article 3 standing? Under the Montana judgment, these parents are treated no differently than parents of children who are going to secular private schools. So where is the harm? When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down. So vis-a-vis parents of children going to secular private schools, how are you harmed?

Timothy R. Zick 2:59

Your Honor, the Montana Supreme Court lacked the necessary predicate for leveling up or for leveling down because they got the Federal Supreme Court question wrong. But for getting that question wrong, we would never have moved on to the issue of remedying that problem because it isn't a constitutional problem.

Samuel A. Alito 3:31

But there's another serious problem, and that's the parents are not taxpayers. Taxpayers are the people who contribute to these student scholarship organizations. And this Court has held that there is no standing to challenge somebody else's tax status. It seems to me that the court's decision in eastern Kentucky is very close to this one. And the court said, you say you're injured because these hospitals are not providing services to you, but you are not the taxpayer and you can't complain about the tax treatment of someone else. So how do you distinguish eastern Kentucky?

Timothy R. Zick 4:19

Well, Your Honor, here what's involved is a scholarship program. And the scholarship program's intended beneficiaries are the parents, like our clients, who are enabled to exercise their constitutional right to

Samuel A. Alito 4:37

choose. But they're challenging the tax status of someone else, not themselves.

Timothy R. Zick 4:41

No, Your Honor. It's because the Montana Supreme Court has extended — their Blaine Amendment to include scholarships that are generated by the giving of tax credits.

Elena Kagan 4:53

I'm sorry. Is there any case we've ever had where we've recognized a party who wasn't either the taxpayer or the direct recipient of the taxes, benefits of the taxes? So here the parents not just aren't the taxpayer — They're not the schools that receive the money. Neither are they guaranteed receipt of the money. We're told that there's less money than applicants. So they're like three levels removed. In what other case can you cite for me?