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Contents Table of Cases xi Table of Authorities xvii Biographical Notes on Selected U.S. Supreme Court Justices xxiii I. THE CONSTITUTION AND THE SUPREME COURT 1 E. “Case or Controversy” Requirements and the Passive Virtues 1 Gill v. Whitford 1 Rucho v. Common Cause 20 II. FEDERALISM AT WORK: CONGRESS AND THE NATIONAL ECONOMY 53 D. State Regulation of Interstate Commerce 53 E. Preemption 55 III. THE SCOPE OF CONGRESS’S POWERS: TAXING AND SPENDING, WAR POWERS, INDIVIDUAL RIGHTS, AND STATE AUTONOMY 57 D. The Tenth Amendment as a Federalism-Based Limitation on Congressional Power 57 vii Contents IV. THE DISTRIBUTION OF NATIONAL POWERS 61 A. Introduction 61 B. Case Study: Presidential Seizure 62 C. Foreign Affairs 65 D. Domestic Affairs 69 Trump v. Vance 71 Trump v. Mazars, USA 91 Gundy v. United States 103 Seila Law v. Consumer Financial Protection Commission 113 V. EQUALITY AND THE CONSTITUTION 129 C. Equal Protection Methodology: Heightened Scrutiny and the Problem of Race 129 D. Equal Protection Methodology: Heightened Scrutiny and the Problem of Gender 134 E. Equal Protection Methodology: The Problem of Sexual Orientation 136 VI. IMPLIED FUNDAMENTAL RIGHTS 139 The Due Process Clause and the Incorporation Controversy 139 D. Substantive Due Process 140 E. Fundamental Interest and the Equal Protection Clause 142 F. Modern Substantive Due Process: Privacy, Personhood, and Family 143 G. Procedural Due Process 147 H. The Contracts and Takings Clauses 149 viii Contents VII. FREEDOM OF EXPRESSION 153 A. Introduction 153 B. Content-Based Restrictions: Dangerous Ideas and Information 154 C. Overbreadth, Vagueness, and Prior Restraint 159 D. Content-Based Restrictions: Low Value Speech 160 Iancu v. Brunetti 162 E. Content-Neutral Restrictions: Limitations on the Means of Communication and the Problem of Content Neutrality 168 F. Freedom of the Press 186 VIII. THE CONSTITUTION AND RELIGION 195 A. Introduction: Historical and Analytical Overview 195 B. The Establishment Clause 197 2. The Nonendorsement Principle, History’s Relevance, and De Facto Establishments 198 American Legion v. American Humanist Association 205 Trump v. Hawaii 225 C. The Free Exercise Clause: Required Accommodations 240 D. Permissible Accommodation 243 Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm’n 243 E. Free Exercise, Free Speech, and the Right of Expressive Association 248 ix Contents IX. STATE ACTION, BASELINES, AND THE PROBLEM OF PRIVATE POWER 249 D. Constitutionally Required Departures from Neutrality 249 Manhattan Community Access Corporation v. Halleck 249 x.

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The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause
The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause Jonathan E. Nuechterlein The free exercise clause1 instructs the government to lift state-imposed burdens on religion where the costs of doing so are reasonable. Thus, ab- sent a "compelling" state interest,2 the government must exempt people from generally applicable requirements that burden their religious obliga- tions.3 By contrast, the establishment clause forbids the government to pass laws for the purpose of advancing religion.4 According to the Supreme Court, the principles underlying these two clauses are mutually inconsistent.5 Justice O'Connor remarks: "It is disin- genuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a govern- ment-imposed burden."' Many commentators agree that such "accommo- dation" of religion-whether enacted by a legislature or compelled by a court-inevitably reveals a purpose that the establishment clause forbids.' 1. U.S. CONST. amend. I reads in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ..." 2. See, e.g., Sherbert v. Verner, 374 U.S. 398, 406 (1963). Interests that are "compelling" in the free exercise context often would not be "compelling" in the equal protection context (where virtually no interest is compelling). See, e.g., United States v. Lee, 455 U.S. 252, 262-63 (1982) (Stevens, J., concurring) (suggesting that Court applies lower standard in free exercise cases than it professes). Thus, the required state interest is more aptly termed "substantial." 3.
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RUSTY BOWERS, SPEAKER of the ARIZONA HOUSE of REPRESENTATIVES, and OTHER STATE LEGISLATIVE LEADERS in SUPPORT of PETITIONERS Ɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ John J
No. 18-1195 In the Supreme Court of the United States ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ KENDRA ESPINOZA, ET AL., Petitioners, v. MONTANA DEPARTMENT OF REVENUE, ET AL., Respondents. ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ On Writ of Certiorari to Montana Supreme Court ɔɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ BRIEF AMICUS CURIAE OF RUSTY BOWERS, SPEAKER OF THE ARIZONA HOUSE OF REPRESENTATIVES, AND OTHER STATE LEGISLATIVE LEADERS IN SUPPORT OF PETITIONERS ɔɔɔɔɔɔɔɔɔɔɔɔiɔɔɔɔɔɔɔɔɔɔɔɔɔ John J. Park, Jr. Counsel for Amici Curiae 616-B Green Street Gainesville, GA 30501 (470) 892-6444 [email protected] i QUESTIONS PRESENTED Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools ii TABLE OF CONTENTS Question Presented i Table of Contents ii Table of Authorities iv Statement of Amici Curiae 1 Summary of Argument 3 Argument 4 I. The application of Blaine Amendments, both generally and in this case, raise serious constitutional concerns. ………………..5 A. Blaine Amendments are rooted in anti-Catholic bigotry. ……………………………8 B. The application of Montana’s Blaine Amendment in this case is unconstitutional. …………………………….10 1. The Montana program does not violate the Establishment Clause of the U.S. Constitution. …………………………10 2. Montana cannot constitutionally exclude potential recipients of generally available benefits because of their religious beliefs. ………………………11 iii C. Montana’s school choice program is constitutional. ………………………………14 II. The Montana Supreme Court’s decision is constitutionally flawed. ………………………………16 III. School choice is cost- and performance-effective and popular. …………………18 Conclusion ………………………………………………23 iv TABLE OF AUTHORITIES Cases Agostini v.
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Brief of Respondents ______
No. 18-1195 IN THE Supreme Court of the United States _________ KENDRA ESPINOZA, ET AL., Petitioners, v. MONTANA DEPARTMENT OF REVENUE, ET AL., Respondents. ________ On Writ of Certiorari to the Supreme Court of Montana ________ BRIEF OF RESPONDENTS ________ DANIEL J. WHYTE ADAM G. UNIKOWSKY BRENDAN BEATTY Counsel of Record NICHOLAS J. GOCHIS JAMES DAWSON Special Assistant JENNER & BLOCK LLP Attorneys General 1099 New York Ave., NW MONTANA DEPARTMENT Suite 900 OF REVENUE Washington, DC 20001 125 North Roberts St. (202) 639-6000 P.O. Box 7701 [email protected] Helena, MT 59604 ANTHONY JOHNSTONE RAPH GRAYBILL JOHNSTONE PLLC Chief Legal Counsel 91 Campus Dr. Governor Steve Bullock PMB #2505 P.O. Box 200801 Missoula, MT 59801 Helena, MT 59620-0801 i QUESTION PRESENTED The Montana Legislature enacted a statute under which taxpayers would receive dollar-for-dollar tax credits for donations to organizations that would in turn disburse those donations to private schools for purposes of paying student tuition. The Montana Supreme Court invalidated the statute under the Montana Constitution’s bar on aid to religious schools. The question presented is whether the invalidation of Montana’s statute violated the Free Exercise Clause, Equal Protection Clause, or Establishment Clause. ii TABLE OF CONTENTS QUESTION PRESENTED .............................................. i TABLE OF AUTHORITIES .......................................... v INTRODUCTION ............................................................. 1 STATEMENT .................................................................... 3 A. The Tax Credit Program ........................... 3 B. Proceedings Below ..................................... 5 SUMMARY OF ARGUMENT ........................................ 6 ARGUMENT .................................................................... 10 I. THE APPLICATION OF THE NO-AID CLAUSE DID NOT VIOLATE THE FREE EXERCISE CLAUSE. ......................... 10 A. Petitioners Have Not Identified A Prohibition on Free Exercise. ............... 10 B.
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