Ruth Bader Ginsburg (RBG): RIP

Supreme Court Associate Justice Ruth Bader Ginsburg (RBG) died on September 18, 2020.?Throughout her life, she defended the weak against the strong, women against male-dominated institutions, and helped to lift up the downtrodden.?As a justice of the Supreme Court, she was well known within the court and within the judicial system, for writing many concise and “cutting” dissenting opinions.?On June 30, 2020, in perhaps her last dissenting opinion, she took issue with the majority opinion which basically upheld the State of Montana’s decision to deny an educational scholarship benefit to a private school, which happened to be a parochial (religious) school.?Her cogent and eloquent dissenting opinion is copied below (with some juris trivia delicately deleted and some strong RBG points highlighted in bold):

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KENDRA ESPINOZA, ET AL., PETITIONERS v. MONTANA DEPARTMENT OF REVENUE, ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [June 30, 2020] JUSTICE GINSBURG, with whom JUSTICE KAGAN joins, dissenting.

The Montana Legislature enacted a scholarship program to fund tuition for students attending private secondary schools. See Mont. Code Ann. §15–30–3111 (2019). In the decision below, the Montana Supreme Court struck down that program in its entirety. The program, the state court ruled, conflicted with the State Constitution’s no-aid provision, which forbids government appropriations to religious schools. Mont. Const., Art. X, §6(1).

Parents who sought to use the program’s scholarships to fund their children’s religious education challenged the state court’s ruling. They argue in this Court that the Montana court’s application of the no-aid provision violated the Free Exercise Clause of the Federal Constitution.

Importantly, the parents, petitioners here, disclaim any challenge to the no-aid provision on its face. They instead argue—and this Court’s majority accepts—that the provision is unconstitutional as applied because the First Amendment prohibits discrimination in tuition-benefit programs based on a school’s religious status. Because the state court’s decision does not so discriminate, I would reject petitioners’ free exercise claim.

The First Amendment prohibits the government from “mak[ing a] law . . . prohibiting the free exercise” of religion.

{some precedence discussion deleted; some embedded rebuttal is beyond my layperson’s ability to excise completely}

This case is missing that essential component. 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 Cite as: 591 U. S. ____ (2020) 3 GINSBURG, J., dissenting 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. Unlike the law in Trinity Lutheran, the decision below puts petitioners to no “choice”: Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding. 582 U. S., at ___ (slip op., at 10).

There simply are no scholarship funds to be had. True, petitioners expected to be eligible for scholarships under the legislature’s program, and to use those scholarships at a religious school. And true, the Montana court’s decision disappointed those expectations along with those of parents who send their children to secular private schools.

But, as JUSTICE SOTOMAYOR observes, see post, at 3 (dissenting opinion), this Court has consistently refused to treat neutral government action as unconstitutional solely because it fails to benefit religious exercise. See Sherbert, 374 U. S., at 412 (Douglas, J., concurring) (“[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”).

These considerations should be fatal to petitioners’ free exercise claim, yet the Court does not confront them. Instead, the Court decides a question that, in my view, this case does not present: “[W]hether excluding religious schools and affected families from [the scholarship] program was consistent with the Federal Constitution.” Ante, at 7 (majority opinion).

The Court goes on to hold that the Montana Supreme Court’s application of the no-aid provision violates the Free Exercise Clause because it “‘condition[s] the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.’ ”

{more deletions just[ice] because}

As I see it, the decision below—which maintained neutrality between sectarian and nonsectarian private schools—did no such thing. Finding the “beginning” of the Montana Supreme Court’s decision erroneous, this Court regards the state court’s ultimate judgment as irrelevant. Ante, at 20–22. In the Court’s recounting, the Montana court first held that religious schools must be excluded from the scholarship program—necessarily determining that the Free Exercise Clause permitted that result—and only subsequently struck the entire program as a way of carrying out its holding. See ante, at 21 (“When the [Montana Supreme] 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.”).

But the initial step described by this Court is imaginary. The Montana court determined that the scholarship program violated the no-aid provision because it resulted in aid to religious schools. Declining to rewrite the statute to exclude those schools, the state court struck the program in full. 393 Mont. 446, 463–468, 435 P. 3d 603, 612–614 (2018). In doing so, the court never made religious schools ineligible for an otherwise available benefit, and it never decided that the Free Exercise Clause would allow that outcome.

Footnote 1 Thus, contrary to this Court’s assertion, see ante, at 21, the no-aid provision did not require the Montana Supreme —1 In its opinion, Montana’s highest court stated without explanation that this case is not one in which application of the no-aid provision violates the Free Exercise Clause. 393 Mont., at 468, 435 P. 3d, at 614.? When the court made that statement, it had already invalidated the entire scholarship program. Ibid.

Accordingly, the court’s statement cannot be understood to have approved of excluding religious schools from an otherwise available scholarship. Instead, the statement is most fairly read to convey that the Free Exercise Clause allows a State to decline to fund any private schools, an outcome that avoids state aid to religious schools.

Cite as: 591 U. S. ____ (2020) 5 GINSBURG, J., dissenting Court to “exclude” religious schools from the scholarship program.

The provision mandated only that the state treasury not be used to fund religious schooling. As this case demonstrates, that mandate does not necessarily require differential treatment. The no-aid provision can be implemented in two ways. A State may distinguish within a benefit program between secular and sectarian schools, or it may decline to fund all private schools. The Court agrees that the First Amendment permits the latter course. See ante, at 20. Because that is the path the Montana Supreme Court took in this case, there was no reason for this Court to address the alternative. By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. See ante, at 21. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no aid provision divorced from its application to a specific government benefit.

{more precedent discussion deleted}

The only question properly raised is whether application of the no-aid provision to bar all state-sponsored private-school funding violates the Free Exercise Clause. For the reasons stated, supra, at 2–3, it does not. Nearing the end of its opinion, the Court writes: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Ante, at 20. Because Montana’s Supreme Court did not make such a decision— its judgment put all private school parents in the same 6 ESPINOZA v. MONTANA DEPT. OF REVENUE GINSBURG, J., dissenting boat—this Court had no occasion to address the matter.

Footnote 2 On that sole ground, and reaching no other issue, I dissent from the Court’s judgment. — 2 The Montana Supreme Court’s decision leaves parents where they would be had the State never enacted a scholarship program. In that event, no one would argue that Montana was obliged to provide such a program solely for parents who send their children to religious schools. But cf. ante, at 13 (ALITO, J., concurring) (inapt reference to Anatole France’s remark).

Source:? https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

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Concluding Thoughts

In Ruth Bader Ginsburg’s 2016 book entitled My Own Words, RBG and her coauthors (ghost writers) Mary Hartnett and Wendy Williams write about how her husband Martin D. Ginsburg used to routinely have to tell Ruth that it was time to eat dinner or get some sleep.?She was often working around the clock studying a case or writing a biting dissenting opinion.?In many ways, RBG, even though she climbed her career ladder to a pinnacle position, was a whistleblower at heart and continued blowing the whistle on injustice from the bench and from her writing desk.

Reading one of RBG dissenting opinions may require a law degree; however, many of her most famous quotes are about as down to earth as one will find.? For example:

“I am a very strong believer in listening and learning from others.”

—Ruth Bader Ginsburg

Reference

Ginsburg, R. B. (2016) My Own Words. Simon & Schuster. https://www.google.com/books/edition/My_Own_Words/nXsmDQAAQBAJ?hl=en&gbpv=1&dq=Ginsburg,+R.+B.+(2016)+My+Own+Words&printsec=frontcover

Image is a 1977 photo of RBG.

Link to another mini-essay discussing the Supreme Court:

https://www.dhirubhai.net/pulse/magnificent-documents-institutions-michael-j-piellusch-ma-ms-dba/?trackingId=jZO%2B0z4rRLG9QIZ2TnEalQ%3D%3D