The Daily Signal - What You Need to Know About Religious School Case at the Supreme Court

Episode Date: January 22, 2020

Should families be able to use school choice tax credits on religious schools? That's the question that's at the heart of Espinoza v. Montana Department of Revenue, which is the Supreme Court is hearing Wednesday. Heritage Foundation legal scholar Elizabeth Slattery breaks down the case for us. We also cover the following stories: A columnist claims his belief in only two sexes got him fired. President Trump and Greta Thunberg deliver dueling speeches on climate and environment. Rep. Alexandria Ocasio-Cortez, D-N.Y., targets the wealthy in new remarks. The Daily Signal podcast is available on Ricochet, Apple Podcasts, Pippa, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Wednesday, January 22nd. I'm Kate Trinco. And I'm Daniel Davis. Can parents use tax credits to help send their kids to a religious school? That's the question before the Supreme Court today. It's a major case that will have implications for the whole country. I'll be joined by Heritage Foundation legal expert Elizabeth Slattery to unpack the details. Plus, a columnist for the Denver Post says he got fired for saying there are only two sexes.

We'll discuss. And if you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now on to our top news. The Senate trial officially began on Tuesday and is expected to go three days. Here's White House counsel Pat Cipollani speaking via CNN. That's because they have no case.

Frankly, they have no charge. When you look at these articles of impeachment, they're not only ridiculous, they are dangerous to our republic. And why? First of all, the notion that invoking your constitutional rights to protect the executive branch that's been done by just about every president since George Washington, that that is obstruction. That is our patriotic duty, Mr. Schiff, particularly one confronted with a wholesale trampling of constitutional. constitutional rights that I'm unfamiliar with in this country.

Frankly, it's the kind of thing that our State Department would criticize if we see it in foreign countries. We've never seen anything like it. And Mr. Schiff said, have I got a deal for you? Abandon all your constitutional rights. Forget about your lawyers. And come in and do exactly what I say. No thank you. No thank you.

Representative Adam Schiff, one of the House of the House of the House of Lawyers, and say, and come in. managers had this to say via C-SPAN. When you hear them attack the house managers, what you're really hearing is, we don't want to talk about the president's guilt. We don't want to talk about the McConnell resolution and how patently unfair it is. We don't want to talk about how the part of the expression

asked backwards it is to have a trial and then ask for witnesses. And so we'll attack the house managers because maybe we can distract you for a moment from what's before you. maybe if we attack the house managers you'll be thinking about them instead of thinking about the guilt of the president so you'll hear more of that and every time you do every time you hear them attacking the house managers i want you to ask yourselves away from what issue are they trying to distract me what was the issue that came up just before this what are they trying to deflect my attention from why don't they have a better argument to make on the merits finally mr secolo asks why are we here

Why are we here? Well, I'll tell you why we're here. Because the president used the power of his office to coerce an ally at war with an adversary at war with Russia, use the power of his office to withhold hundreds of millions of dollars of military aid that you appropriated and we appropriated to defend an ally and defend ourselves because it's our national security as well. and why? To fight corruption, that's nonsense, and you know it. He withheld that money, and he withheld even meeting with him in the Oval Office, the president of Ukraine, because he wanted to coerce Ukraine into these sham investigations of his opponent that he was terrified would beat him in the next election. Another one of Trump's lawyers, Jay Sekulow, also spoke via ABC News.

What are we dealing with here? Why are we here? Are we here because of a phone call? Or are we here before this great body? Because since the president was sworn into office, there was a desire to see him removed. President Trump is a big believer in the environment. That's what he said Tuesday at the World Economic Forum in Davos, Switzerland.

The president struck an optimistic tone and dismissed warnings of a coming environmental apocalypse. This is not a time for pessimism. This is a time for optimism. Fear and doubt is not a good thought process because this is a time for tremendous hope and joy and optimism and action. But to embrace the possibilities of tomorrow, we must reject the perennial prophets of doom and their predictions of the apocalypse.

The president also said this. We're committed to conserving the majesty of God's creation and the natural beauty of our world. Today I'm pleased to announce the United States will join one trillion trees initiative being launched here at the World Economic Forum. One trillion trees. Also attending the conference was none other than Greta Toonberg, the Swedish teenage activist who famously lashed out at UN leaders last year, saying they had stolen her child. with their empty words on climate change. Tunberg and Trump didn't mention each other at the conference, but Tunberg did accuse leaders of cheating and fiddling around with numbers

and said we need to treat this crisis with the importance it deserves. If you think the country is polarized, you're not wrong. A new Gallup poll found that Americans are the most polarized they've been in recent years, with 82% of Republicans supporting President Trump and a mere 7% of Democrats supporting the president. That's down from 8% of Democrats supporting him in Trump's first two years in office. President Obama also fared badly with the opposing party, receiving on average 13% support from Republicans during his time in office. The coronavirus outbreak coming from China has reached the U.S.

With the first case being reported in Washington State, the deadly virus has sickened hundreds and killed six people in China already. The Wall Street Journal reports that the person, recently traveled to Wuhan, China, the city where the outbreak first began. The person is reportedly in good condition and is being held in the hospital as a matter of precaution. Chinese authorities say that the virus can spread from human to human, and that's raising concerns ahead of the Chinese New Year holiday, which begins this week and will involve

millions traveling. Representative Alexandria Ocasio-Cortez is continuing to target the wealthy. In an interview with Ta-Nehisi Coates at a Martin Luther King Jr. event in New York City, the New York Democrat had this to say about billionaires, via Graeban. Why specifically does, you know, I'm Joe billionaire. I made widgets. I sold those widgets. I made billions of dollars, you know, selling those widgets, making those widgets.

Therefore, those billions of dollars are mine. Why am I the enemy of health care? Well, you didn't make those widgets, did you? because you employed thousands of people and paid them less than a living wage to make those witches for you. You didn't make those witches. You sat on a couch

while thousands of people were paid modern day slave wages and in some cases real modern day slavery depending on where you are in terms of food production. You made that money off the backs of undocumented people.

You made that money off of the backs of black and brown people being paid off a living wage, under a living wage. You made that money off of the backs of single mothers. And all of these people who are literally dying because they can't

afford to live. And so no one ever makes a billion dollars. You take a billion dollars. Ocasio Cortez also said the Democratic Party is too keen on capitalism. The Democratic Party is a center or center conservative party. We do not advocate for, we do not, we can't even get a floor vote on Medicare for all.

Not even a floor vote that gets voted down. We can't even get a vote on it. So this is not a left party. There are left members inside the Democratic Party that are working to try to make that shift happen. But you're right, it does convey a certain sentiment about true believers. And there are a lot of true believers that we can capitalism our way out of poverty in the Democratic Party, if anything, that's probably the majority. Well, as more women voice concern about transgender athletes competing in sports, one lawmaker from Idaho wants to put an end to the practice.

State Representative Barbara Aheart is introducing a bill that would ban biological males from competing as girls in women's sports, regardless of what gender they identify as. On Monday, she told the East Idaho News, Boys and men will not be able to take the place of girls and women in sports because it's not fair. We cannot physically compete against boys and men. She added, the inherent biological scientific advantages that boys and men have over girls and women, even if they were to take hormones, even if they were to spend a couple of years on estrogen, that's not going to replace the inherent biological advantages that boys and men have. A similar bill has also been proposed in New Hampshire, but it hasn't passed.

Next up, we'll feature Daniel's interview with Elizabeth Slattery about a big case coming before the Supreme Court today. If you're tired of high taxes, fewer health care choices, and bigger and bigger government, it's time to partner with the most impactful conservative organization in America. We're the Heritage Foundation, and we're committed to solving the issues America faces. Together, we'll fight back against the rising tide of homegrown socialism, and we'll fight for conservative solutions that are making families more free and more prosperous. But we can't do it without you. Please join us at heritage.org.

Well, it's a big day at the Supreme Court where the justices are hearing our in a case involving religious schools. The case is Espinosa versus Montana Department of Revenue. Joining me to break it down is Elizabeth Slattery, a legal fellow here at the Heritage Foundation. Elizabeth, thanks for coming in. Thanks for having me. So this case is out of Montana. What exactly is the dispute over?

So back in 2015, the Montana legislature set up this tax credit scholarship program that would provide scholarships for income eligible children to use at qualified schools, private schools. Initially, recipients could use the scholarship funds at any qualified school, including religious ones. But then the Montana Department of Revenue implemented a rule to exclude religious schools, citing a provision in the Montana Constitution that bars state funds from aiding religious organizations. So parents sued, you know, they were relying on these funds to send their children to religious schools and they sued in state court. And that is the case that's up at the Supreme Court. So the state Supreme Court ruled according to the state constitution, but I'm assuming the Supreme Court is going to have something to say about the U.S. Constitution. Do you think the two might be in conflict here? Yeah, so the parents raised federal constitutional claims in addition to some state law issues.

And what the Montana Supreme Court ended up ruling was it struck down the tax credit program in its entirety. It said that, look, when the legislature set this up, they were allowing funds to go to religious schools. And our Constitution says that you can't do that. And so they struck down the program in its entirety. So no children can use the scholarship program right. now. So you've written that the Supreme Court's recent ruling in the Trinity Lutheran case from 2017 might be relevant here as a precedent to maybe correct this ruling or overturn it. Can you explain that?

Sure. So Trinity Lutheran was a case out of Missouri from back in 2017. And that case involved a daycare center that was run by a church. And they wanted to apply for this state-funded grant to help them resurface the playground at the daycare center. But they were denied the grant solely because it was brought by a religious institution. And Missouri likewise has a what's called a no aid or a blame amendment. Some people call them that in their state constitution. And this case went all the way to the Supreme Court. And the court held that Missouri had violated the federal constitution by discriminating against an organization solely on the basis of religion.

So the parents in this Montana case, they're going to argue the same thing. They're going to say that this tax credit is a generally available public benefit and that therefore they should be able to use it to go toward religious schools. Yeah, and there's an additional wrinkle here, particularly with regard to the no aid provision, because what we're talking about here is a tax credit. So it isn't actually state money that's flowing to the schools. It's people giving money to a scholarship granting organization, and then the money goes into the hands of a private actor, the parents, to decide where to use that money. And the Supreme Court has, the U.S. Supreme Court, has long held that there's a distinction between direct government funding of religion and indirect funding, you know, such as a tax credit in this case. So zooming out big picture, I mean, what's really at stake in this case for other Americans who aren't involved in this particular case? case? Between 37 and 38 states have similar no aid provisions in their constitutions. And many of these

states enacted these no aid provisions are also called Blaine amendments named for Senator James Blaine, who tried to get the federal constitution amended to prevent funds from going to what he called sectarian schools. And this was a code word for Catholic schools because he didn't want funding of Catholic institutions or Catholic schools. A number of states have these amendments, and so you can see how in the Montana case, how they can conflict with school choice efforts. And, you know, really, this case is about just trying to allow parents to decide what the best educational opportunity is for their children and using programs like this tax credit

program to give their kids the best education that they can. So right now the court is considered conservative by a five-four majority. what kind of outcome should we expect from this case? Well, if we look at the Trinity Lutheran case from a couple of terms ago, that's when Justice Gorset had just joined the Supreme Court. Justice Kennedy was still on the bench. So we have switched Kennedy for Kavanaugh. But that was a 7-2 ruling. So justices Kagan and Breyer joined with the so-called conservative members of the court to uphold the First Amendment and to full.

find that what the state of Missouri had been doing was religious discrimination. So we could see a similar breakdown in this case. Justice Sotomayor wrote a dissent back in Trinity Lutheran and Justice Ginsburg joined her saying that, you know, they thought that the Trinity Lutheran case weakened the separation of church and state, but we'll see what happens in this one. And then with Kavanaugh, I would assume he's even more likely to go conservative in this case. You know, based on his jurisprudence from the D.C. Circuit and the limited jurisprudence we have from the Supreme Court. He has been strongly in line with the conservatives when it comes to establishment clause and other First Amendment cases.

So, you know, it's hard to predict how cases are going to turn out because, you know, you never know what might happen. But I think that there is a firm majority that will rule to side with the parents in this case. And if that happens, does that automatically amend the other state constitutions that currently ban this practice? Not necessarily. So the parents in the Montana case have argued that as the state court applied the constitutional provision, it violates the federal constitution. But, you know, they can see that there could be other applications of this provision that are in line with the federal constitution. Now, interestingly enough, the Trump administration filed a friend of the court brief supporting the parents in the Montana case. And they say that these no aid provisions should be struck entirely. But the parents who are the litigants in the case didn't go quite that far in what they were asking with the Supreme Court to do. And so when should we expect the ruling? It'll be by the end of June, most likely. That's when the court will wrap up for this term.

And, you know, they have been issuing opinions. They've been, you know, some of the ones from the fall sitting. I think, you know, since this is going to be argued in January, we may not see an opinion until, you know, maybe April at the earliest. But it may not be until the very end, which is the last week of June. All right. Well, we'll wait to see how the arguments go. If you want to listen to more of Elizabeth's analysis of cases like this, check out our podcast, SCOTUS 101. Elizabeth, thanks for your time today.

Great to be here. Do you have an opinion that you'd like to share? Leave us a voicemail at 202-608-6205 or email us at letters at dailysignal.com. Yours could be featured on the Daily Signal podcast. John Caldera is a libertarian who has written for the Denver Post since 2016. But he says he's now become too controversial and has lost his gig as a columnist for the Denver Post. Why? Because of how he wrote about gender. In his column for the newspaper, Caldera wrote,

Democrats don't want any transparency in hospital billing, and they certainly don't want education transparency. when it comes to their mandate to convince your kid that there are more than two sexes, even if it's against your wishes. Caldera claimed on Facebook this weekend that the article ended his relationship with the Denver Post. Caldera wrote, and I'm going to quote this at length because I think it's important, this. What seemed to be the last draw for my column was my insistence that there are only two sexes and my frustration that to be inclusive of the transgendered,

even that word isn't allowed, we must lose our right to free speech. To be clear, I am strongly pro-gay marriage, which has frustrated many of my socially conservative friends. I have friends, family, and employees from the LGBT community. I don't care who uses whose bathroom, what you wear, or how you identify. People from this community have rights, which we must protect. But to force us to use inaccurate pronouns, to force us to teach our kids that there are more than two sexes, to call what is plainly a man in a dress, well, not a man in a dress, violates our right of speech.

You are free to wear a dress, and quite sincerely, more power to you. That's power over your own self. You are sovereign. And so am I, which means you cannot choose my words. Our words are now chosen by the press, and our kids' words are being mandated at school. So, Daniel, what do you think about this? Yeah, I think the fact that he's a libertarian and the fact that he takes all of the quote-unquote right positions, according to the left, on these issues, is proof that this newspaper isn't really concerned about policy and his policy views.

They're concerned about him simply expressing facts. and they seem to reject any opposing characterization of the facts that he might offer. I mean, he's very pro-gay marriage. He's a libertarian. And I think it just shows the lines have moved someone who takes those positions and yet can't express concern over something like kids being told that they're maybe a different gender. Right. And I think what's interesting is I'm not super familiar at the Denver Post.

I don't really know what their editorial standards are. if they try to present a diverse array of views or only views that agree with them, different newspapers have different standards. But, you know, regardless, if you look at American media as a whole, for the most part, while it might be skewed toward the left, you know, most viewpoints are represented. And there's like a handful of exceptions, which is like, you know, they're really crazy stuff. Like people who deny the Holocaust, people who have horrible views on race. There's like a handful of topics like that that basically no reputable outlet in the country will publish because they're hands. and I am concerned, you know, I mean, this is one outlet and I don't know the broader picture here, but there seems to be this push on the left to make, yeah, to make traditional thinking

on gender, which like everyone held until five minutes ago, somewhat literally, as banned as Holocaust denial, which is crazy. Yeah, I think it's also notable just how disconnected the Denver Post is as a media class. I think there's a class thing going on where people like the Post who have a disproportionate amounts of power are way to the left of the public on this. Again, because they're not criticizing his policy views. They're just saying you can't even express doubt about liberal policies and liberal gender gender gender. So I think I don't think the public is I mean maybe the Denver Post has a very left audience that is willing to keep like buying their newspaper But I just think that it's unfortunate I think Americans if they really came out to

To exercise their market power and And show that they care about asserting themselves and that they could have more influence on papers like this Perhaps and to be fair to the Denver Post as far as I've seen they haven't release a statement. We're just taking this guy's word that this is what ended his column. But I think we're definitely seeing this inclination, yeah, more broadly to just silence people. And I think it's because they don't want to have a serious debate about it. And I think sometimes you see on Twitter, not always transgender, but sometimes LGBT activists are speaking out against, you know, I think a year ago. Jesse Single wrote an article for The Atlantic where

he quoted a lot of people who were concerned about how fast kids were given hormones, I think, and other things. And that article was so controversial. I think the Atlantic ended up publishing a bunch of pro-transgender stuff. And Single comes from a perspective of he's not anti-transgenderism. I think he's admitted to having concerns about kids moving in that direction. But he has no problem with adults doing it. So anyway, just this broader shut down debate rather than take it on its merits.

Right. And because this is how the left often wins is by shutting out debate. I just think anyone who cares about. discourse, especially a newspaper that wants to publish columns and different views, should value the freedom to speak and have legitimate. If this is now out of bounds, I don't know who, you know, anyone who's to the right of AOC and, you know, other figures in the Democratic Party won't be able to speak in public. Right.

And I think that's perhaps what some of the activist types want. And I think that's really chilling. And, you know, they really are making it akin to racism or something. And conservatives have talked a lot. If you call everything racist, nothing is racist. And you would have hoped that people would have learned a lesson that the surest way, well, not the surest way. I don't want to overstate this. But you run the risk of promoting real extremism when you classify stuff that is not extremist as extremist.

You make people think, well, everything I think, even though it's common sense, is so extreme that I might as well, you know, become this horrible person. And obviously, I hope most people's consciences would recognize the different. in these issues. But it is so frustrating this shutdown speech thing. Yeah. Well, we'll leave it there for today. Thanks for listening to The Daily Signal podcast brought to you from the Robert H. Bruce Radio Studio

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