On the morning of the 22nd, I got out of bed at 4:25 AM to stand in line to see oral arguments at the Supreme Court. It was a grueling experience, and one that I very nearly gave up on, but it was ultimately one of the best decisions I have made on this trip. After quickly getting ready, the two of us going to the court left on the first train out of the station, and arrived on Capitol Hill at around 5:30. The sun was still hours away from rising, and the roads were mostly empty, but the corner of First Street was packed. A line already stretched around the corner, with what looked to be about 60 people in front of us. At the time, we had been told that the court guarantees seating to the first 70 people who arrive. It didn’t look promising for us. We began talking to the people in line in front of us, a father and daughter from Ohio who would later come to be the key to our success. After about 20 minutes in line, I started to notice the cold. I had used the layering skills I had learned from a winter in Minnesota, but had decided against wearing my fur-lined snow boots. “Its 20 degrees”, I thought, “That’s warm enough that I won’t need them, right?”. Wrong. Evidently, the girl next to us had made the same mistake, because she and her father made the decision to leave the line and get a nice breakfast instead. Since our first friends had left, we began to talk to the three people near us; a tech worker from Berlin staying in DC for 3 months, and two tax lawyers sent by their firm to see the case. Over the next five hours, we became a little group, which made all the difference. At 7:30, the guards came out, counted the first 50 people in line, and sent them inside the building with the golden tickets to a full watch of the trial. We were dismayed. If 50 people had gone in, then what happened to the other 20 seats they were supposed to fill? It eventually became clear that the court reserves a certain number of seats for special guests like lawyers barred at the Supreme Court, and family members of lawyers. When the court knew how many of those people did not arrive, more people would be let in. The wait was not over yet.
After another two and a half hours in line, we were getting impatient. By that time, it was 9:50, arguments began at 10:00, and we had still not been let into the building, or been told that we had missed our chance. We knew it was going to be close, but had no idea how close it would be. We flipped a coin to decide who would get to go in if the cut off divided our group. I won the coin flip, which raised my chances of going in once again. At 9:53 AM, the guards came out a final time, handed out a few red tickets which allowed for a full hour in the courtroom, and then pulled out the dreaded purple tickets. The purple tickets would let us into the room, but only for three minutes before we would be asked to leave for another group to enter. We accepted the tickets, and our fate and headed into the building towards the lockers where we had been asked to leave all our belongings. After a struggle with lockers that were far too small for our bags, we headed into the ornate hall just in front of the courtroom, and got in line again, this time thankful to be indoors. As we passed through a second layer of security and into the line of people waiting to enter for their three minutes, we heard words that would make our stomachs drop. “We have room for nine more for the full hour.”. We were numbers eleven and twelve in the line.
Just as the nine went in, and we decided that sitting in the room for three minutes was still an incredible opportunity, the door guard held up two fingers. There was room for two more people before the three minute line began. Because I had won the coin flip, I followed the high schooler ahead of me in, and took a seat behind a pillar to watch court in session. I was riveted. The case was Montana v Espinoza, a case in which the state of Montana had found that a program allowing tax credits to be given to people who had made donations to scholarship funds at religious schools was unconstitutional (under the Montana constitution) because it involved the state giving money to religious organizations. 31 states have laws regarding tax credits, and religious schools, so the case was and is of great importance. Just as the lawyer for Espinoza finished his opening argument, Daniel, the friend I had come with walked into the room and took a seat. He was the last person allowed into the room to stay for a full hour. We had made it.
As the court continued, the questions from the justices became more difficult to answer. Why was the case accepted by the Supreme Court in the first place when the plaintiff was three steps removed from the actual action being reviewed? Why would it be wrong for Montana to simply get rid of the program allowing tax credits for donating to private schools altogether? Why does the Supreme Court think it is acceptable to discriminate between religious and secular but not between races or genders? The lawyers for both parties were, at times, stumped. But they continued to argue confidently, even when the correct answers were not at all clear. I had expected a much higher degree of formality within the arguments themselves. Both the justices and the lawyers used everyday language, and very rarely strayed into legal terms, or formal language. At one point, Justice Breyer even made a clear joke, telling a thinking lawyer, “You don’t have to answer that question, but we do recommend it.”.
In many Supreme Court cases, most listeners know what they want to be the end result of the case. This was not one of them for me. Although I agree that separation of church and state is important, and that a state rewarding donations to religious organizations goes against that concept, I also can’t give a satisfying answer to what became one of the primary questions in the case, “why is religion treated differently than race in regards to discrimination?”. There is an easy surface level answer, “religion is different because religion is an internal, actively chosen identity, whereas race is something placed onto people”, but it falls apart at any interrogation. To borrow an argument from many gay rights activists, how an identity comes to be has no bearing on whether or not it ought to create a protected group. True, the Catholics in the 1840s that Justice Kavanaugh referred to could have decided to become protestant instead, but that is clearly not a result that makes sense in a democratic country. The other possible arguments for allowing discrimination based on religious identity all assume either that religiosity is not a structural concept at all, or that religious people are universally privileged over irreligious people. Both arguments are challenging to provide evidence for at best. I don’t know the answer to that question, and I don’t know that the Supreme Court does either. I have a hunch about how the court will decide, but I am very interested to read the decision within the next six months.