June 30, 2020 11:48AM

Remarkably Easy School Choice Case Was Still Only a 5–4 Decision

Neal McCluskey has already commented on the policy ramifications of today’s important educational/​religious freedom Supreme Court decision, but I wanted to pick up on the key legal point.

Espinoza v. Montana Department of Revenue was a simple case that exposed blatant anti‐​religious discrimination: Montana created a tax‐​credit scholarship program, which state authorities didn’t allow religious parents to take advantage of, and which the state supreme court shuttered rather than allowing those parents to send their kids to religious schools.

Our Constitution simply doesn’t permit that sort of thing.

What’s scary is that this easy call became a 5–4 vote. That’s the margin on which freedom of conscience rests in this country, at least with respect to government action. It shows why various states’ nefarious Blaine Amendments are a blot on our liberties, and why school choice is more important than ever.

See here for more background and to read Cato’s brief, which Justice Alito cited on the second page of his concurring opinion.