By David French
Thursday, September 12, 2019
The headline is jolting. “Religious Crusaders at the
Supreme Court’s Gates.” Thus starts Linda Greenhouse’s analysis of the actual
and potential religion cases before the Court during its October term. Her
thesis is that the Court’s relative restraint in its religion cases the
previous term represented the justices’ merely “biding their time.” This term
the gloves may come off. Now the Court may well “go further and adopt new rules
for lowering the barrier between church and state across the board.”
She focuses on an Institute for Justice case that the
Court has accepted for review, Espinoza v. Montana Department of Revenue.
It involves a Montana supreme-court-ordered termination of a state tax-credit
scholarship program that “helped needy children attend the private school of
their families’ choice,” including religious and nonreligious schools. The
precise issue before the Court, in dry legalese, is this: whether the Montana
court’s decision “violates the religion clauses or the equal protection clause
of the United States Constitution to invalidate a generally available and
religiously neutral student-aid program simply because the program affords
students the choice of attending religious schools.”
Greenhouse is incredulous. If SCOTUS rules against
Montana, then, according to her, “the logical consequence is that a state that
once had a program offering financial support to religious and nonreligious
schools alike . . . and that subsequently shut down the program entirely can be
deemed to have violated a principle of religious neutrality.”
“Can that possibly be the law?” she asks. But her summary
isn’t exactly right. She pays short shrift to the key fact of the case.
The Montana court’s ruling was based on the state’s Blaine amendment, an
artifact of odious 19th-century anti-Catholic bigotry. In fact, the words “Blaine
amendment” appear nowhere in her piece.
A brief history lesson is in order. As Mike McShane
explained in an instructive Forbes piece last year, in the latter part
of the 19th century, America’s public schools were often “nominally
Protestant.” They would frequently start their days with prayer, the students
would read from the King James Version of the Bible, and they’d sometimes even
sing hymns.
So when Senator James Blaine proposed amending the United
States Constitution to state that “no money raised by taxation in any State for
the support of public schools, or derived from any public fund therefor, nor
any public lands devoted thereto, shall ever be under the control of any
religious sect; nor shall any money so raised or lands so devoted be divided
between religious sects or denominations,” he was not attempting to
stamp out public-school religiosity. He was attempting to deny aid to Catholic
parochial schools.
Blaine’s federal amendment failed, but his language found
its way into 37 state constitutions. As McShane notes, the anti-Catholicism of
the amendments is betrayed by the words “sect” or “sectarian.” In the language
of the time, Protestant instruction was “nonsectarian.” Catholic instruction
was “sectarian.”
Let’s look at the relevant language of the Montana
constitution. The section at issue is entitled “Aid prohibited to
sectarian schools” and prohibits the use of public funds “for any sectarian
purpose or to aid any church, school, academy, seminary, college, university,
or other literary or scientific institution, controlled in whole or in part by
any church, sect, or denomination.”
Mr. Blaine, meet your amendment.
So let’s go back to the question posed by Linda
Greenhouse. “Could that possibly be the law” that states are prohibited from
ending “a program offering financial support to religious and nonreligious
schools alike”? Yes, it can possibly be the law. Indeed, it should be the law —
when the state ends support because it’s enforcing a legal provision that in
purpose and effect engages in blatant religious discrimination.
The twin constitutional pillars of religious liberty in
the United States — the free-exercise clause and the establishment clause —
don’t just protect liberty by disestablishing religion (by preventing the
formation of a state church). They protect liberty by preventing punitive
anti-religious policies. They prevent the state from targeting religion for
disfavored treatment.
Targeting religion for disfavored treatment is exactly
what Blaine amendments do. They were aimed squarely at Catholics. Yet as so
often happens with attacks on liberty that are allegedly narrowly targeted, the
government expanded its scope. Now the law aimed at Catholics affects all
people of faith. When it comes to participation in public programs — programs
they bought and paid for with their own dollars — Montana’s religious citizens
and religious institutions are entitled to equal treatment under the law.
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