n>Coming on the heels of the uber-textualist opinion in Bostock,it is especially noteworthy that the Court as well as the dissenters in Espinoza ignored it — the text that is. As the Chief Justice wrote in the opening paragraph of the Court’s opinion, the Montana constitutional provision at issue barred public aid to any school “controlled by a ‘church, sect, or denomination’”. [My emphasis]. Neither the word “religion” nor cognates (such as “religious”) appears anywhere in the text of the state law. The Court and each of the Justices who wrote separately nonetheless treated the text as if it said “religion,” instead of “church, sect, or denomination.” “Religion” and “denomination” evidently are synonyms, as far as the Court is concerned. In fact, they are not. And they surely were not used as synonyms by precisely those 19th-century public figures whose actions the various Justices examined at length in their Espinozaopinions.Read Full Article »
