Why the Religion Cases Matter Most

When I was searching for a private school for my daughter in Chicago, I was amazed at some of the leftist indoctrination on display in some classrooms. At one of the most established schools in the city, the ABC book most prominently displayed was A is for Activist, which, as its title suggests, offers a catechism for social justice toddlers. (I was especially amused by “N is for No,” a word I have never had trouble eliciting from my daughter.) In the classroom at another one of the most established schools hung large rainbow pennants and a Black Lives Matter flag. I welcome debate even among primary school students about the social issues of the day, but this was a classroom for three-year-olds! The tour leader of the first school led her talk with a long mantra of diversity and social justice. Far more time was used to discuss these matters than reading, writing, and arithmetic.

In contrast, the school that was most focused on imparting values of individual responsibility was a Catholic school. Unlike at the established secular schools, there were no visible markings of faith, at least in the lower grades. The tour leader emphasized that the school tried to inculcate values of dignity, respect, and individual responsibility. One did not have to be a Catholic or indeed religious at all to recognize that this school was far more focused on the development of the individual child than advancing a social agenda. The Catholic school was more likely to advance the Enlightenment values that were at the foundation of the nation. It was the two secular private schools that preached a zealous dogma.

We were searching for a private school because the Chicago public schools provide a notoriously poor education. They have discipline problems in the classroom. Their teachers often go on strike while claiming that their labor activism is all about helping children. And their political culture surely resembles the woke private schools we visited. Even before the current political stirs, the ideology of the typical public school has been well-described as “a vaguely leftish stew of environmentalism, moral relativism, and gender . . . egalitarianism.”

The constitutional religion cases decided this term are the most practically important of all of the term’s cases, precisely because they will improve the ecosystem of K-12 education both by boosting competition to public education and forcing the inclusion of more private schools with traditional values in that competition. They will allow more parents to do what we are trying to do for our daughter—get an education that provides both deep knowledge and sound values. Nothing is more essential to our nation than that we sustain schools that will compete against the monolithically left-liberal educational establishment for the minds of the next generation.

The first of these cases, Espinoza v. Montana Department of Revenue, offered a challenge to a so-called Blaine Amendment that prevents any aid going to religiously sponsored institutions. In a 5-4 decision, The Court held that such a state constitutional amendment amounted to discrimination based on the religious status of the institution and thus violated the Free Exercise Clause.

Blaine Amendments naturally reduced the interest of religious institutions in lobbying for school choice programs.

The decision is significant because such an amendment, in one form or another, exists in more than 30 states. These amendments on their face exclude religious schools, like the one I considered in Chicago, from participating in school choice programs that would defray the cost of attending them. Moreover, because there are more religious than secular private schools in the country, the amendments exclude the schools that can reach the most children. Because religious schools, being subsidized by the faithful, are generally less expensive than secular private schools, the excluded schools also enroll more children of modest means. (The Catholic school we visited cost less than half of the amount charged by the established private schools.) And finally, as my experience shows, religious schools are more likely than elite private schools to provide a traditional education that is not an indoctrination into the social justice creed of the day.

Thus, Espinoza will immediately result in more sound education for more children, particularly those of modest means in existing school choice programs that previously excluded schools run by religious institutions. Even better, the decision will result in more school choice programs. Blaine Amendments naturally reduced the interest of religious institutions in lobbying for school choice programs in which they could not participate. But now religious schools can band together with secular private schools to create a coalition to press for school choice.

In Our Lady of Guadalupe School v. Morrisey-Berru, the Court held the state could not apply its employment discrimination laws to those teaching religious subjects in religious schools. As Rick Garnett nicely put it at this site, the Court made clear that “questions about religious institutions’ religious teachings, and teachers, belong to the church and not the state.” Whether the church sponsoring the school called them “ministers” was irrelevant. So long as they were furthering the school’s religious mission, it was the church institution that should determine the parameters of their employment.

Our Lady of Guadalupe prevents the state from impeding schools in the transmission of their values by controlling their choice of personnel. Otherwise, states could require schools to hire those whose lifestyles or views outside of class made a mockery of their teaching in class. Nor will states be able to condition their school aid on a commitment by religious schools to hire those who would undermine their mission. The doctrine of unconstitutional conditions—the rule that the state cannot condition funding on compliance with rules that it could not constitutionally impose—directly prevents that stratagem.

To be sure, some states may still try to put obstacles in front of religious schools. As Mark Movsesian notes at First Things, one side of our current culture wars is not enthusiastic about robust religious freedom. Espinoza held that it was unconstitutional to discriminate against religious schools on the basis of religious status. But it left open whether or how far the state could discriminate on the basis of religious activities conducted at the school, including traditional religious teaching on morals. Thus, the Court has not yet protected the activities and curriculum that religious schools may choose to embrace.

Nevertheless, two justices, Clarence Thomas and Neil Gorsuch, have already rejected the distinction between status and activities. As Gorsuch stated in a concurring opinion in Espinoza, “The [Free Exercise] guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” While not explicitly agreeing, Chief Justice Roberts acknowledged this view in his majority opinion.

In any event, the combination of these cases is the best news of the term that was otherwise mixed. It has become even clearer this year that the Left’s long march through our educational institutions has been bearing fruit in creating ever more politicized universities. In these cases, the Supreme Court has created the constitutional framework for a countermarch. The rest is up to state legislatures and to parents, like me.

Reader Discussion

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on July 16, 2020 at 11:34:45 am

"As Gorsuch stated in a concurring opinion in Espinoza, “The [Free Exercise] guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” "
So what does this portend for another Masterpiece Cake or the sure to follow additional Little sisters?

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Image of gabe
on July 17, 2020 at 09:02:26 am

Justice Thomas gets it. He may have an ally in Alito. But because of Roberts, unless Trump gets two more nominations, the Supreme court will probably never have 5 Justices prepared to clean up the mess which the Court has made of Establishment/religious freedom jurisprudence. That Court-caused mess has contributed to the demise of religion and religious educational institutions and, in turn, to the destruction and death of public education.

If that Court-caused mess were to be cleaned up (and it could be easily cleaned up,) the nation could very quickly solve its K-12 disaster, which is now onto its third generation of wasting millions of minds. The solution would lie in simply providing direct funding for millions of students to attend the nation's Catholic, Protestant and secular private schools, tens of thousands of private schools, particularly the Catholic schools like the one McGinnis describes, which once played a vital, healthy role in the nation's educational success and which have fallen on hard times economically but whose infrastructure could be rebuilt and whose dedication to education re-ignited to repair and restore what the Democrats have destroyed.

It is a matter of life and death. Truly.

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Image of paladin
on July 18, 2020 at 08:29:07 am

It is truly a matter of life and death, for what is ailing this Country has also, through some fissure, made its way into The Catholic Church, leading to a Great Apostasy.

The erroneous notion that public morality and private morality can serve in opposition to one another, and are not complementary, has led to grievous error in both Faith and reason. The only way to heal this fissure, is to affirm The Unity Of The Holy Ghost and thus the fact that “It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost.

“The Charity Of God, is poured forth in our hearts, by The Holy Ghost, Who is given to us.”
This is true, for all matters, private and public.

Only The Truth Of Love can set us Free, and lead us to Salvation. The Good News Is, Salvational Love, God’s Gift Of Grace And Mercy, is available to all those who desire to repent and orient themselves to The Integral Essence Of The Sacrifice Of The Cross, The Sacrifice Of The Most Holy And Undivided Blessed Trinity.

For Perfect Love does not divide, it multiplies, as in The Loaves and Fishes.
Such is The Power And Glory Of God.

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Image of N.D.
on July 18, 2020 at 21:57:05 pm

When I first read Professor McGinnis's essay, I noticed a mild, almost imperceptible annoyance, like when a traffic signal turns yellow just a moment sooner than necessary to allow safe and legal transit through the intersection. The source of this irritation is the suggestion that public and religious schools are in competition, and ultimately serve the same purpose. The question is presented as which model performs better. I would argue that there are profound differences between public and religious schools that make this premise invalid.

Religious schools take the general view that their duty is one of "passing along" the history, traditions, and wisdom of decades, centuries and millennia, and of successful and flourishing cultures. This approach is supported by the fact that every century in human history is an improvement on the previous one and this is because human flourishing depends on the lessons learned from the challenges, triumphs and mistakes of those who came before us. Newton was humble enough to admit that his great achievements were possible because he "stood on the shoulders of giants," who quite naturally preceded him, and whose knowledge and wisdom were passed along by conscientious educators. All of the conveniences, comforts, safety, prosperity, justice and moral attitudes that we tend to take for granted, are built on the experiences of those who came before us, and had something to teach us.

Public schools in contrast are easily distracted by intellectual fads, co-opted by insular interests, and subject to transient sentimental narratives. A current view is that history and tradition are not things to be passed along and explored for whatever wisdom might reside there, but are to be judged so they can be discarded in favor of whatever ideological doctrine is the current fashion.

This results from a fundamental difference in perspectives. One views educated students as a means to an end, that end being "progress," and the interests of the state. Education is a matter of social utility. Call this the Rousseauian view. The other approach treats students as ends in themselves, and assumes that the good of society is best served by producing good, rather than simply useful, citizens. This view understands character as an individual trait to be developed through broad and thoughtful schooling, rather than a collective doctrine to be imposed by selected methods of pedagogy. It is as concerned with individual virtue as with collective attitudes. Call this view the Aristotelian or Thomist view.

These differences in perspective result from two different ideas of the role of education in society. Intrinsic to this difference are crucial differences in the ideas of the role of family, church, state, and class. These differences in turn reflect discrepant ideas of duty, virtue, autonomy, and dignity. It is the competition among these ideas that is the crucial one, and that which will determine not only the condition of education, but the course of society which supports it.

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Image of z9z99
on July 19, 2020 at 11:04:08 am

Z gets it, along with Justice Thomas who, except for his three years in Yale purgatory, was educated in the schools which Z describes and which the Supreme Court could foster bigly were it to redress its self-inflicted harm to the Establishment Clause and were it to view the ubiquitous, insidious, incessant, state-sponsored, invidious discrimination against charter schools (including religious schools) as a denial of civil rights.

Competition in K-12 would solve most of the cultural problems the country faces. Abolishing public schools in the inner cities would be the biggest blow for civil rights since the Emancipation Proclamation and the Union victory in the Civil War. But since we can't abolish them, we must subject them to sharp, well-funded, private competition as the second best means of denying bad public schools funding and forcing mediocre public schools to improve the quality of their teaching, their curricula and their dedication to students' education, not to teachers' job security and benefits. No more racial sensitivity training, sex-education and faux-history. No more snow days when there's 2 inches of snow.

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Image of paladin
on July 20, 2020 at 10:40:36 am

Yep! Z is correct when he asserts that secular and sectarian schools do not, contra McGinnis, seek the same ends / goals.

Comes news today that Catholic Hospitals are once again being sued for refusing to perform "tranny" surgery.


How is it that one can presume to assert such a "right" as the removal of one's healthy organs and further, in asserting such a dubious right also assert the right to compel others to violate their own religious, moral AND in this case medical beliefs that it is wrong to remove a healkthy organ.
ONLY, if one is the product of years of "secular" (read: anti-religious) education.

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Image of gabe
on July 20, 2020 at 13:06:12 pm

Excellent essay on why we “still need Catholic Schools”, to remain, in essence, Catholic:


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Image of Nancy
on July 23, 2020 at 15:57:14 pm


More evidence that confirms Catholic Schools have a positive affect on civil society.

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Image of Nancy
on July 20, 2020 at 10:14:53 am

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on July 21, 2020 at 01:10:52 am

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