Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, January 13, 2020

Returning to the Court as an Attorney

Last week an email from National Law Journal caught my attention.  The subject read "A Rare Amicus Brief in Church-State Case." Curious about the brief, I opened the email--a weekly Supreme Court Brief from NLJ written by Marcia Coyle and Tony Mauro.  As I read the email, I was fascinated to discover that the "rare amicus brief" was one filed by McGuireWoods partner Joshua Davey in the upcoming U.S. Supreme Court case Espinoza v. Montana Department of Revenue.

The Espinoza case concerns a Montana scholarship program that provided, in the words of the petitioners' brief "a modest tax credit—up to $150 annually—to individuals and
businesses who donate to private, nonprofit scholarship organizations. Scholarship organizations then use the donations to award scholarships to families who wish to send their children to private school."  Religious schools were included in the definition of private schools, as was nearly every other private school in the state.  The Montana Department of Revenue, however, issued a rule that prohibited the scholarships from being used at religious schools.  The Department's decision was based on a provision of Montana's Constitution that mandates separation of church and state.  This provision, known as a Blaine Amendment, is present in the laws of nearly 40 states.

The petitioners', all low-income mothers who used the scholarships to send their kids to private religious school, sued claiming in part that the Blaine Amendment violated the Religion and Equal Protection clauses of the Constitution. The petitioners ultimately lost at the Montana Supreme Court.  The U.S. Supreme Court will hear arguments in the case on January 22.

What made Joshua Davey's amicus brief so interesting is that over fifteen years ago a very different U.S. Supreme Court upheld a Washington Scholarship program that, because of the state's Blaine Amendment, prevented him from using the scholarship that he received to obtain a degree in devotional theology. Josh instead went on to attend Harvard Law School, where, in full disclosure, we were friends.  According to my search of Supreme Court briefs on Westlaw, this is the first brief that Josh has filed in the Supreme Court as an attorney.  It seems fitting that it addresses the same issues that led him to his current career.

Josh's brief is filed on behalf of Forge Youth Mentoring, "a Washington State charitable organization whose mission is to help youth discover their God-given potential by connecting them with older mentors to form intergenerational mentoring relationships."  The brief directly addresses the Court's decision in his case and how it should be read in light of the much more recent Trinity Lutheran (2017) decision.  

The Espinoza case is just one of several big religion cases this term, but it could have huge implications if the Court strikes down Blaine Amendments, something it wasn't willing to do in Trinity Lutheran.

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