Fides et Ratio: Espinoza v. Montana Dept. of Revenue

Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.

The Calm Before the Storm: Weekly Brief for June 22

This week was relatively quiet, especially as the Court nears the end of its term. The Justices decided just two cases: Liu v. SEC (an arcane securities law case) and DHS v. Thuraissigiam (challenging asylum denials in court). They didn’t grant any new cases. Court-watchers enjoyed a brief lull after the tumultuous Title VII and DACA decisions last week, but that lull won’t last long. We’re the unguarded tree in the photo above, facing an impending deluge of 13 major decisions to be handed down over the next few weeks. So as we await the Court’s decisions in matters concerning abortion, Trump’s tax returns, religious liberty, Obamacare, free speech, and the Electoral College (among others), there’s just one thing to say: I hope you enjoyed the calm before the storm.

Litigating Coronavirus: Weekly Brief for May 25

At the outset, this week looked as if it’d be a quiet one; no opinions were expected, and oral arguments wrapped up a few weeks ago. Even this week’s orders list turned out as unremarkable as any. But a series of emergency, coronavirus-related petitions wound up in the Court’s hands. All told, the Court issued rulings on four such petitions, culminating in a 1:00am, Saturday morning decision to reject a California church’s assertion that the state’s stay-at-home orders discriminate against houses of worship (a decision made on a 5:4 vote). So while Court-watchers expected this to be the last “dead-week” before the Court’s term concludes in July, it turned out to be anything but.

The Taxes Are Back in Town: Weekly Brief for May 11

President Trump’s tax returns? Check. “Faithless” members of the Electoral College? Yep. Whether half of Oklahoma is actually Native American land? Check that one too. And the Establishment Clause’s “ministerial” exception? You got it. The Supreme Court heard oral arguments this week on all of these issues, rounding out what was perhaps the biggest argument week of the term (and also the Court’s last). Given the stature of these cases, you’d be forgiven if you didn’t notice the Court also released one decision this week (it was pretty innocuous). Here’s a recap of the action at our nation’s highest court this past week.

This Week’s Brief: January 20

The Court concluded its January sitting this week. It heard arguments in three cases, ranging from the Armed Career Criminal Act to contract and arbitration law to the Religion Clauses of the First Amendment. The Court issued no decisions, although Justice Breyer did pen a short statement relating to Monday’s orders list. Finally, the Court declined to expedite consideration of the twin “Obamacare” cases out of the Fifth Circuit Court of Appeals. Here’s your brief for the week of January 20.

Crosses on Public Land: American Legion v. American Humanist Association

Only a few blocks from downtown Bladensburg, Maryland, towers a 32-foot-tall Latin cross. The “Peace Cross,” as it is called, has stood there since 1918, when residents of Prince George’s County sought to build a memorial commemorating the soldiers from that area who died in World War I. From 1925–1961, the local American Legion owned the cross, emblazoning its emblem on the cross’ center and placing a plaque at its base with the words “Valor,” “Endurance,” “Courage,” and “Devotion,” as well as the names of 49 fallen soldiers and a quote from President Woodrow Wilson. Since 1961, the Peace Cross has been under the ownership of the State of Maryland, who has used public funds for maintenance and upkeep when necessary. But in 2014, the American Humanist Association (among others) challenged the constitutionality of the Peace Cross, arguing it violates the Establishment Clause of the First Amendment. The question must then be asked: Are they right?