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Our reader Laura Chapman read the Supreme Court decision in the Espinoza case, both the majority decision and the dissents. The majority decision said that if a state offers a scholarship program for private schools, it must include religious schools. The dissenters, Chapman noted, pointed out that the Montana Supreme Court had already invalidated the private scholarship program. So the case was already moot because Montana no longer has a scholarship program for private schools! The Espinoza family will not get $150 (the amount that used to be paid to families that sought help in paying private school tuition) because Montana no longer offers scholarships to private schools, and thus will not be affected by today’s decision!
I downloaded the text of ESPINOZA ET AL. v. MONTANA DEPARTMENT OF REVENUE ET AL and read the dissents. Here are a few gems, all noting that the scholarship in question had already been made invalid by Montana’s Supreme Court !!
BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined as to Part I.
I shall assume, for purposes of this opinion, that petitioners’ free exercise claim survived the Montana Supreme Court’s wholesale invalidation of the tax credit program. (This is a feature in all of the dissents. Essentially, the dissenters claim there is no case because the program was made vaporware by the Montana Supreme Court.)
Breyer then begins an extended discussion of “entanglements” of the Free Exercise Clause and the Establishment Clause: and concludes that “The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent.
Well, that is the summary, but it is followed by at least 6000 words, as if prepared to show his colleagues that he had considered a lot of precedents that had no direct bearing on the case, these dating back to Madison and Jefferson’s Wall of Separation in Antebellum Virginia, along with hypothetical questions about state funding for charter schools (with a 2003 citation).
GINSBURG, J., filed a dissenting opinion, in which KAGAN, J., joined.
Recall that the Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.
Put somewhat differently, petitioners argue that the Free Exercise Clause requires a State to treat institutions and people neutrally when doling out a benefit—and neutrally is how Montana treats them in the wake of the state court’s decision. Accordingly, the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise.
SOTOMAYOR, J., filed a dissenting opinion.
The majority holds that a Montana scholarship program unlawfully discriminated against religious schools by excluding them from a tax benefit. The threshold problem, however, is that such tax benefits no longer exist for anyone in the State. The Montana Supreme Court invalidated the program on state-law grounds, thereby foreclosing the as-applied challenge petitioners raise here.
Indeed, nothing required the state court to uphold the program or the state legislature to maintain it. The Court nevertheless reframes the case and appears to ask whether a longstanding Montana constitutional provision is facially invalid under the Free Exercise Clause, even though petitioners disavowed bringing such a claim. But by resolving a constitutional question not presented, the Court fails to heed Article III principles older than the Religion Clause it expounds.
Laura Chapman added: I am not a lawyer, but I cannot understand why this case even got on the docket of the US. Supreme Court. It was settled in the Montana Supreme Court, made invalid, struck entirely.