Espinoza and state and local budgets

Espinoza v. Montana Department of Revenue has overturned Blaine Amendments in 37 states.  These state constitutional amendments prohibited funding of religious schools with public funds. They were part of opposition to Catholic immigration, which was seen as bringing with it opposition to democratic forms of government.

This opposition was not entirely bigotry, as papal encyclical Mirare Vos did, in fact, condemn democracy, particularly in Italy where Garibaldi was successfully revolting against papal control of the national government. With the Lateran Treaty, the Church ceded the point, although until the Second Vatican Council, freedom of religion was not recognized by the Church itself.

Chief Justice Roberts and the Court returned the favor in Espinoza. The Court ruled that the Blaine Amendments violated the free exercise of religion of parochial schools and rejected the Establishment Clause objecting to providing such funding.

This decision does not mandate funding of Catholic schools. Aside from the now defunct religious justification for such funding, doing so without increasing state and local taxes would result in lower per pupil funding for the current public school system, which unlike parochial schools, cannot charge tuition. Publicly funded parochial schools would, in fact, not be allowed to charge tuition if they received public funds, so without increased taxes, all students would be worse off.

Since the sharp drop in female vocations, sisters and nuns are no longer available to provide cheap labor for low cost parish schools. Catholic schools in poor neighborhoods have already shifted to the Charter School system or have closed unless the students have received public scholarships to attend (which was the question in Espinoza).

Most remaining parish schools now serve wealthier parishes and families. Public funding would allow parish schools to reopen in urban neighborhoods, particularly those in immigrant neighborhoods. This would solve equity questions within the Church, as well as in society as a whole.

For the sake of equity, increased revenue to fund parochial schools must come from the economic class who currently pay private school tuition and provide donor support. More progressive income and property tax rates would be required to fund the migration of students to the parochial system and the ending of tuition in higher income parochial schools. An employer paid subtraction value added tax, which effectively redistributes income within companies rather than in society, is another possible funding source inside of tax reform.

Aside from tax questions, opposition to organized labor in Catholic schools would have to end. Union representation of parochial schools is largely unheard of. The National Education Association support of Roe v. Wade is not the only reason for this opposition (in truth, bishops don't like dealing with unions), but it is the most commonly voiced reason to oppose a union shop.

The reality is that legal abortion is not a legislative issue. Abortion simply cannot be banned by legislative action. As I explained in a separate essay, Right to Life and Women's Bodies Redux, the unborn already have the same constitution right to life as others because pregnant women cannot be executed. The constitutional right to life only addresses execution, not the right to not be murdered. Not being murdered is a right under the social contract, not a basic right.

Basic rights ban government action, positive rights require it. A due process right in the first trimester trigger due process questions on who can be punished for murder (equal protection is a double edged sword - the state cannot punish contract killings and not prosecute mothers nor can it investigate voluntary abortions without investigating all lost pregnancies.

The fight over Roe is largely a fight over who can decide abortion cases. The Alabama abortion law asserts state government supremacy, denying the power of the federal government to decide abortion cases. State government supremacy is rooted in Plessy v. Ferguson. The theory of the case in Plessy was the Orwellian argument that states must be given ultimate authority in enforcing the 14th Amendment.

If Roe falls on such jurisdictional grounds, so does Brown v. Board of Education II (which would also now prohibit racial discrimination in parochial schools) and Plyler v. Doe (which requires that undocumented students receive a public education regardless of immigration status - which would be a plus for urban Catholic schools).

The ultimate irony is that Espinoza is only before the Court because the theory of the case in Plessy was overturned, thus giving the Court jurisdiction to hear Roe. The Church cannot logically claim a right to public funding under one without conceding the power of the federal courts in the other. The stated reason for opposing teachers unions no longer holds water.

If the Church concedes the obvious, that Roe cannot be abolished, it can make a deal with the NEA and seek funding for parish schools. Both could then demand higher taxes to fund the deal, possibly including establishment of a subtraction VAT, which could also be used to radically increase the child tax credit and include it with pay, thus reducing the demand for abortion services. This could be considered a win-win, particularly for lower income households.

A higher minimum wage would also be necessary, both to benefit lower and middle income workers without children and to assure that no one is working simply to collect the child tax credit (which should also be channeled to students, the disabled and to those on public assistance.