Conservative hypocrisy will also be front and center in January at the oral argument in Espinoza v. Montana Department of Revenue. The case involves a Montana tax credit that provides funding for private school scholarships to religious and secular schools. The Montana Supreme Court struck down the tax credit in its entirety, reasoning that it violated the “no-aid” provision of the Montana Constitution. Under that provision, no public funding may be used directly or indirectly to aid any religious school.

A group of Montana parents who send their children to a nondenominational Christian school are now attacking Montana’s no-aid provision in the Supreme Court. They argue that the provision violates the Equal Protection Clause because the provision was initially enacted during a period of anti-Catholic bigotry in the 19th century, as part of the state’s first Constitution. Represented by the libertarian Institute for Justice, the parents make this claim even though the no-aid provision applies equally to all religious denominations. Neither should it matter, the Institute argues, that delegates to Montana’s 1972 constitutional convention overwhelmingly re-enacted the no-aid provision in order to protect religious institutions from state interference.

This broad view of the Equal Protection Clause cannot be squared with conservatives’ long-running effort to emasculate equal protection doctrine in the context of discrimination against racial minorities. Conservatives, for example, have rejected challenges to laws or policies that appear neutral on their face but have radically disparate racial impacts. Conservatives have also ignored findings of discriminatory intent behind putatively neutral laws. Just last year in Abbott v. Perez, the five conservative justices reversed a lower court’s decision to invalidate a racially gerrymandered Texas redistricting map. In reaching that outcome, the conservative majority explained that when a new lawmaking body re-enacts an old provision that suffered from bias, any discriminatory “taint” from the prior enactment is eliminated unless the plaintiffs can show discriminatory intent behind the new enactment, too. But if that is true for racial discrimination, as in Abbott, why not for religious discrimination too, as in Espinoza?

Conservative litigants also rely on hypocritical arguments in Bostock v. Clayton County, a crucial case in which the court will decide whether federal law forbids employers to discriminate on the basis of sexual orientation. The L.G.B.T. employees’ position turns on a plain reading of the statutory text — a kind of argument often associated with conservatives. Federal law forbids discrimination against an employee “because of” the employee’s “sex.” When an employer fires an employee who is dating a man because the employee is also a man, that is by definition an action taken because of the employee’s sex. Had the employee only been a woman instead, he would have kept his job.

Unable to rebut this textual argument, anti-L.G.B.T. conservative lawyers resort to an unlikely line of reasoning: arguments not about what Congress did, but what it didn’t do. Under this theory, the court should refuse to read Title VII in accordance with its ordinary meaning because “Congress rejected over 50 bills to add sexual orientation to the statute.” Yet as none other than Justice Antonin Scalia forcefully explained, “post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.” After all, there are lots of reasons Congress might have declined to add sexual orientation to the law — including the possibility that the law already covers it.