Court embraces ‘short-sighted view of history’

It’s bad enough that the Supreme Court took a wrecking ball Tuesday to the constitutions of 38 U.S. states. What’s truly discouraging is that it did so while vastly oversimplifying American history.

Supreme Court Building, West Pediment

Supreme Court Building, West Pediment

The court ruled, in Espinoza v. Montana Department of Revenue, that Montana couldn’t bar religious schools from participating in a “neo-voucher” program that provided state funding for scholarships to religious K-12 schools. In a 5-4 decision, the conservative majority ruled that barring religious schools was discrimination in violation of the First Amendment.

The majority opinion — and especially concurring opinions by Justices Samuel Alito and Clarence Thomas — framed the decision as a blow against anti-Catholic bias enshrined in state constitutions via 19th century “Blaine amendments.” But that view papers over complex history, said Steven K. Green, a legal scholar at Willamette University and a leading expert on church-state issues.

Green told me it was disappointing that the court, in a highly consequential decision, “relied, to a certain extent, on a shortsighted view of history, not recognizing the nuances behind the development of the no-aid provisions.” Green elaborates on that history in an amicus brief submitted to the court on behalf of several Christian religious organizations that supported Montana’s position.

Blaine amendments get their name from James Blaine, a Maine congressman and senator and U.S. secretary of state in the late 1800s. In 1875, Blaine introduced a constitutional amendment to prohibit federal funding of religious institutions. It failed, but some states adopted similar provisions for state funding.

The late 1800s were a time of rising anti-Catholic and anti-immigrant bias. In Indiana, the nativist Know-Nothing Party gained a large following. But restriction on state funding of religion “predates the Know-Nothings and the Blaine amendment,” Green said. “And it occurred in places where there was not that much religious strife.

“Without a doubt, a lot of people, during the Blaine amendment arguments, certainly raised anti-Catholic rhetoric,” he said, “But that misunderstands the origins and purpose of the no-funding provisions. The nuance is just left out.”

For one thing, 15 of the state Blaine amendments predated Blaine and his proposal. Michigan was the first state to put a ban on state funding for religion in its constitution – in 1835, when Blaine was 5 years old.

Wisconsin followed in 1848 and Indiana in 1851. I’ve read the notes from the Indiana constitutional convention, and there is no anti-Catholic animus there. In Indiana and in other states, the primary concern was to ensure adequate funding for the public schools they were beginning to establish.

Green said the Supreme Court also ignores history when it downplays the importance of keeping church and state separate.

The First Amendment includes two clauses concerning religious freedom: it forbids “the establishment of religion” and bans laws that prohibit “the free exercise” of religion. The framers of the U.S. Constitution, especially Thomas Jefferson and James Madison, were deeply concerned that state support for religion would entangle government with churches: hence the establishment clause and Jefferson’s famous words about “a wall of separation” between church and state.

“The court seems to say the provision on establishing religion has to take a back seat to the free exercise clause,” Green said.

The Espinoza decision is clearly significant, but what happens next is less clear. Secretary of Education Betsy DeVos, a school voucher supporter, told states, “Your bigoted Blaine amendments are unconstitutional, dead and buried.” But in fact, the court stopped short of overturning all state prohibitions on public support of religious institutions.

Green said a lot will depend on lower courts: whether they apply the decision narrowly to voucher programs or broadly to any state support of religion.

“I don’t think it’s completely over,” he said, “but people that relied on the no-aid provisions, they certainly have one hand tied behind their backs.”

For more on the topic, see an article that Green published Tuesday on SCOTUSblog and his amicus brief for the case. Also, the dissenting opinion by Justice Stephen Breyer examines the dangers of the majority decision.

1 thought on “Court embraces ‘short-sighted view of history’

  1. I agree that policy and law relating to religion and government in the US are complex, dynamic and sometimes contradictory. But for those interested in a serious argument by a respected legal scholar that lends support to the Supreme Court’s decision in this case, I would recommend consulting two books by Columbia Law Professor, Phillip Hamburger: “Separation of Church and State” (Harvard, 2004) and “Liberal Suppression” (Chicago, 2018).

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