Erin Hawley joins the podcast to preview Espinoza v. Montana, the highly anticipated landmark education case before the Supreme Court. The ruling could settle the on-going battle over the use of public funding for religious schools and may also declare the Blaine Amendment unconstitutional.

Erin Hawley is a Senior Legal Fellow for the Independent Women’s Legal Center and a Senior Fellow at the Kinder Institute for Constitutional Democracy. Erin’s research interests include the separation of powers, federal courts, agricultural law, and administrative law. Her work has been published in numerous top law journals, and she is a frequent national commentator on legal issues. Erin is a former clerk to Chief Justice John Roberts and has litigated extensively before the United States Supreme Court. Erin and her husband U.S. Senator Josh Hawley have two active boys, a dog, and a horse.

Beverly Hallberg: And welcome to She Thinks, a podcast where you're allowed to think for yourself. I'm your host, Beverly Hallberg. And on today's episode Erin Hawley joins us to talk about the highly anticipated case before the Supreme Court, Espinoza v. Montana. This case is seen as a potentially landmark education case since the ruling could settle the ongoing battle over the use of public funding for religious schools and may be poised to declare Blaine Amendments unconstitutional. Before we bring her on, a little bit more about Erin. Erin Holly is the senior legal fellow for the Independent Women's Legal Center and a senior fellow at the Kinder Institute for Constitutional Democracy. Her research interests include the separation of powers, federal courts, agricultural law, and administrative law. Her work has been published in numerous top law journals and she is a frequent national commentator on legal issues. Erin is a former clerk to Chief Justice John Roberts and has litigated extensively before the US Supreme court. Erin and her husband, US Senator Josh Holly, have two active boys, a dog, and a horse. Erin, thank you so much for joining us again. 

Erin Hawley: I'm so glad to be here with you. Thank you.

Beverly: So first of all, I want us to just kind of back up, let's talk about this case, Espinoza v. Montana. Can you lay out what this case is really about? 

Erin: Absolutely. And I loved your summary at the beginning here because I think this case does have the potential to sort of be the linchpin that either supports or destroys much of public school choice in our country. And the reason for this is, if you look at Montana scholarship program, what Montana has done here, there's no question that it complies with the federal Constitution and the wall of separation of church and state. So what Montana did was they said, "We would like to establish a scholarship program. There are a number of children in Montana who would like to attend a private school, but we realize that many families are not able to afford this on their own." So they have this scholarship program where donors can donate to the scholarship fund. Donors donate, they were see the tax credit, and then scholarships are given to parents who choose where to send their children.

And this is really important. The state is not directing funds to go to a religious institution, rather the state sets up this program. Donors donate, which is their own private choice. And then parents choose which school to send their children to. So in this instance, you've got three families. One at the moms, Kendra Espinoza, is a single mom. She works two jobs. She's a janitor at night and wanted to have the opportunity to send her two girls to private school, and relied on this scholarship program. But the Montana Supreme Court, as you indicated, struck down the program under what's known as a Blaine Amendment.

Beverly: And for Blaine Amendments, I know that these are highly controversial. They're provisions that 30-some state constitutions where they forbid any state entity from making a direct or indirect payment or aid. Tell me about what the future of Blaine Amendments could be depending on this decision. 

Erin: So, yeah. So I think in order to look at the future of Blaine Amendments, we also have to look at their history. And Blaine Amendments, their heyday within the 1870s. And they were pushed by as Senator from Maine, James G Blaine. Now, Mr. Blaine had presidential aspirations and he sought to capitalize on a wave of anti-Catholic sentiment in the country. So these Blaine Amendments as a plurality of the Supreme Court recognized in a case called Mitchell v. Helms were actually born out of anti-Catholic sentiment and the desire to keep public funds from any sort of Catholic school. So that's their sort of odious background. 

And why this case could really matter is because of course our First Amendment has two provisions. You've got the Establishment Clause that creates the wall of separation between church and state. But we of course also have our FreeExercise Clause. And what is unusual, permissible in some circumstances but unusual, about Blaine Amendments is that they go above and beyond the federal Constitution. So they build additional bricks on the wall between the separation of church and state. And while a state can provide additional protections, for example, in the Fourth Amendment context, in the First Amendment context we also have another provision that protects the free exercise of religion. So it could be the case, and I think it's very much the case in this Montana case, that a state's Blaine Amendment actually runs afoul of the Free-Exercise Clause. And just a few years ago, the Supreme Court held that this was the case in another case dealing with Blaine Amendments out of Missouri called Trinity Lutheran. 

Beverly: And I know that case was about funding for mulch and a playground, correct?

Erin: That's correct, yes.

Beverly: And so the ruling on that one ended up being what? 

Erin: So the ruling on that was that a state could not expressly discriminate against a religious entity in the award of a generally available grant. So in lay person terms, if the state is going to offer a program that's freely available, it can't say you cannot apply because you are a church or a religious entity. They have to freely offer it to everyone. And if a religious entity meets the qualifications, then they are entitled to whatever the program is under the Free-Exercise Clause. 

Beverly: And so oral arguments took place last week. Did you, first of all, hear the case that you just mentioned? Was that used as precedent in some of the oral arguments? And what did you make of the oral arguments as a whole? 

Erin: Absolutely. So I think the petitioners here, the families, have a really good argument that this case is absolutely controlled by the case in Trinity Lutheran. Here we have a state program that purported to be generally available, but the Montana Department of Revenue said, "Oh, by the way, religious schools are not able to accept these funds. They're not eligible." So that's a direct violation of Trinity Lutheran and it is a direct violation of the Free-Exercise Clause. There is of course the now infamous footnotes in the Trinity Lutheran case where the court notes that this is a case about playground mulch, not about other things. But of course a court decision, a Supreme Court decision, is not supposed to be just for one case. It's supposed to be precedential. And the basic principles of Trinity Lutheran definitely govern here. 

Beverly: And as you mentioned, this is about the state of Montana. We heard oral arguments last week. I'm assuming we can expect a decision end of June, decision, release time, which is where major decisions are often released. But curious from you, do you expect June as finding out what the Supreme Court has decided? And also, what could this mean for the other states that have Blaine Amendments?

Erin: Those are great questions. And, yes, since it's just January, it's possible that the case will come out earlier. But as you say, this is a very controversial case, involves these Blaine Amendments from 30 states, or could involve them. So, yes, I probably wouldn't expect the opinion before June. And I think the court has a couple of different ways that the case could go. I imagine that it will be a split case, likely five, four. And in the oral argument, one of the arguments pressed by the so-called liberal justices was the idea that the families didn't have standing here. 

So Justice Sotomayor, for example, highlighted that it was the donors that received the tax credits and it was the school that received the funds, so what interest did the parents have? Now, of course the parents want to send their children to school, which seems like a pretty direct injury. But it also highlights just how attenuated the flow of state funds here is to the school because it is broken by the parent's choice. The parents can send their children to a private sectarian school, they can send them to a private secular school. And the Supreme Court has been very, very clear in the federal Establishment Clause context that when you have third-party choice, that breaks the link between the state and the entity and there can't be an establishment of religion, so it doesn't violate the First Amendment. 

So I think if we look at those arguments as outstanding and if we look at a case called Zelman vs Harris, which upheld state vouchers because of parental choice, we see here that there can't possibly be an Establishment Clause violation here with Blaine Amendments. And it really suggests more broadly the state amendments, state Blaine Amendments, both because of their background and then also because of their tension and conflict with the Free-Exercise Clause, need to go. 

Beverly: And of course not everybody has the same perspective as this case as you do, I want to talk a little bit about the opposition. Randi Weingarten, the president of the American Federation of Teachers, said that this would be a virtual earthquake in the public education system. So it sounds like you have administrators, teachers, unions, who are fearful that if the case goes in the way of these families that this could lead to further funds being removed from public education, public schools, and therefore harming public schools. What do you make of some of attacks on this, especially from unions and teachers?

Erin: Well, I think a great response to those attacks is just to look at the facts of this case. Again, to talk about Kendra Espinoza, she's a single mom, works two jobs. One of her children, she says, was bullied in public school because she was reading a Bible during recess. So we have a long history in this country of recognizing that parents have the right to direct the education of their children. And for good reason, we want parents to be invested in their children's education. Parents intuitively know what all the social science research says, and it's that children are different, they're unique, and they learn differently. And it's a parental right and also responsibility that we as parents try to place our children in the place where they most thrive.

And so I think when you look at this parental interest in education, we see really compelling evidence for the availability of different schools. And public schools are a great service to our country but there is space for other schools and for parents to choose the schools that are best for their children. And then, perhaps the public schools can compete with these schools in offering better education as well. 

Beverly: And I wonder if this, and this may not have anything to do with it but I'm curious if this could lead to other discussions about religious institutions being nonprofits to begin with. So you talk about the tax credits that the donors receive for providing these scholarships, and then the parents can choose where they want to send their child. Does this bring up even more questions that we may see in the future when it comes to court cases about whether or not religious institutions can be tax exempt to begin with and whether or not that is a violation of church and state? 

Erin: So that's a good question. So that particular question about the tax-exempt status isn't at issue in this case because it's dealing more with the tension between a state constitutional amendment and the federal Free-Exercise Clause that guarantees the right to freely exercise our religion. But it is true, as you suggest, that there has been pressure and different arguments made by those, especially on the left, that churches and nonprofits really aren't entitled to this tax-exempt status. And one of the arguments they make, as you say, is that this violates the Establishment Clause because of the wall, the separation between church and state. 

But if we look at these cases like Zelman, I think what Zelman tells us is that when private choice is involved, that breaks the link and you don't have an establishment of religion problem. And in the nonprofit context, it's of course donors who choose where to give their dollars. And of course the federal campaign that is eligible for federal employees to donate to various nonprofits includes religious entities in those under the federal rules. And the reason for this, again, is the recognition that it's the employee's private choice to donate to a religious institution or not. And it's not an establishment of religion for the government to provide this generally-applicable program. 

Beverly: And I'm curious from you, since you are the former clerk, a former clerk to Chief Justice John Roberts, some are saying that we have to wait on how he decides on this, that he could be the determining decision on this, on which way it goes, five, four. Any insights into him? And since you know him and worked for him, any thoughts on how he's going to view this case? 

Erin: So I think if we look at his jurisprudence, we see a justice, the chief justice, who has been very supportive of religious liberty. I think if we look at a number of cases including Trinity Lutheran and also the Little Sisters case, he has been particularly able to bring other justices along. So Trinity Lutheran was actually a really lopsided case in which almost all of the justices held for the religious preschool there. Similarly, the Little Sisters case, the Zubik case, came out unanimously, again, I think because the chief justice was able to pull the rest of the court along. In this case, given the 30-some Blaine Amendments, I doubt that he will be able to do that. But I think, if we look at the history of his jurisprudence, that he will be a supporter of the Free-Exercise Clause and that he will also find the history of the Blaine Amendments and their anti-Catholic background to be troubling. 

Beverly: And final question for you. You're a senior legal fellow for the New Independent Women's Legal Center. I'm curious what other Supreme Court cases you have your eye on in this term? 

Erin: Absolutely. Well this is an exciting term on a number of different legal bases. A couple of cases that the Independent Women's Legal Center is looking at also include religious liberty. There's a ministerial exceptions case that the Supreme Court has just granted cert on. And this deals with internal church governance and how churches go about hiring and firing people that work for them and whether the state and federal governments can interfere in those internal church processes. There's also another Little Sister's case that the court just granted last week, sort of a follow on. The government is still after the Little Sisters, so we're hoping to weigh in on that. 

On a completely different front, the Supreme Court has relisted a case, a cert petition, on its docket that deals with how far administrative deference goes. So under a judicially created doctrine, Chevron, federal courts are required to defer to an agency's interpretation of a statute. Now, Justice Gorsuch and many people would say that that's actually the court's job to interpret a statute, not an agency, an unelected agency. But Chevron says courts have to defer. And in this crazy follow-on case, the court said that they have to defer even if a federal court has interpreted a statute. So the Supreme Court says statute X means Y, the agency says statute X means Z, and then the federal court, next time around, has to say, "Actually it means Z." So this case is on the docket. And I think it's important on its own grounds, but also because it could be a tip in the Chevron wall. And it looks like the court is interested in taking it from the relist. So we're watching that closely as well. 

Beverly: And I know I said final question, but one more question. Would you say that there has been a dramatic increase in the amount of cases that deal with religious liberty in the past five years? 

Erin: Absolutely. So, particularly this term, the court has already granted their consolidated cases in Lady of Guadalupe, which is the ministerial exception cases. We have the Espinoza case and we have the Little Sister's case, so that's four cases in just this term which must be some sort of a record for sure.

Beverly: Well we so appreciate you coming on and breaking it down in simple terms for those of us who do not have a law degree like you do. So Erin, as always, thank you so much.

Erin: Thanks so much for having me. Glad to be here. 

Beverly: And thank you all for joining us today. Before you go, I did want to let you know of another great podcast you should subscribe to in addition to She Thinks. It's called Problematic Women, and it's hosted by Kelsey Bolar and Lauren Evans, where they both sort through the news to bring stories and interviews that are of particular interest to conservative-leaning or problematic women, that is women who's views and opinions are often excluded or mocked by those on the so-called feminist left. Every Thursday, hear them talk about everything from pop culture to policy and politics by searching for Problematic Women wherever you get your podcasts. 

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