Espinoza: Religious Discrimination as Fruit of the Poisonous Tree

 Take a look at this passage from casebook at p. 1893:

     The Department argues that . . . there is no free exercise violation here because the Montana Supreme Court ultimately eliminated the scholarship program altogether. According[ly,] . . . religious schools and adherents cannot complain that they are excluded from any generally available benefit.

Two dissenters agree. Justice Ginsburg reports that the State of Montana simply chose to “put all private school parents in the same boat” by invalidating the scholarship program, and Justice Sotomayor describes the decision below as resting on state law grounds having nothing to do with the federal Free Exercise Clause.

The descriptions are not accurate. The Montana Legislature created the scholarship program; the Legislature never chose to end it . . . . The program was eliminated by . . . the Montana Supreme Court[, which] invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program. . . .

The final step in this line of reasoning eliminated the program, to the detriment of religious and non-religious schools alike. But the Court’s error of federal law occurred at the beginning. When the Court was called upon to apply a state law no-aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation. . . . Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision….

Do you understand the argument made by Montana and the dissenters? And how Chief Justice Roberts was able to reject it?