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Law & Courts

Long History Underlies Fight Over Religious-School Funding

By Mark Walsh — January 14, 2020 7 min read
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Twenty years ago, U.S. Supreme Court Justice Clarence Thomas issued a call to arms of sorts, in a case in which the court upheld the use of federal education aid to private religious schools for the loan of library books, computers, and other materials.

“Opposition to aid to ‘sectarian’ schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions,” Thomas wrote in a plurality opinion in the 2000 case, Mitchell v. Helms. “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’ ”

Thomas went on to assert that nothing in the First Amendment’s prohibition on government establishment of religion requires the exclusion of religious schools from otherwise permissible aid programs.

“This doctrine, born of bigotry, should be buried now,” he said.

On Jan. 22, the Supreme Court will take up a new case concerning government money that flows to private religious schools. In Espinoza v. Montana Department of Revenue (Case No. 18-1195), the justices will consider whether Montana’s state constitutional provision barring aid to religious schools violates the First Amendment’s guarantee of free exercise of religion.

‘Baby Blaine’ Amendments

The case could result in a dramatic turn in a debate that has roiled the nation at least since the time of the federal Blaine amendment, introduced in Congress in 1875 by James G. Blaine, then a member of the House of Representatives from Maine. Although the federal measure failed, more than 20 states subsequently adopted “baby Blaine” amendments—state constitutional measures that in some form or other bar government aid to religious denominations and religious schools.

Douglas Laycock, a law professor at the University of Texas at Austin and a leading scholar on religious-liberty issues, said in an interview that if, as he predicts, the high court rules that Montana’s state constitution may not bar scholarship aid at religious schools, it will be “pretty significant.”

Laycock co-wrote a friend-of-the-court brief in support of upholding the use of the Montana tax credit to aid religious schools filed by the Christian Legal Society, the U.S. Conference of Catholic Bishops, and several religious denominations and groups.

“We will have gone from a presumption against aid to religious schools, to it’s permitted, to it’s required in some circumstances,” said Laycock, referring to the recent trend on the court to lower the wall between church and state. “All that has happened in about 35 years.”

The Montana case involves a $150 state tax credit for contributions to funds that provide scholarships for students to attend private schools, including religious schools. (Education Week visited Montana in September to examine the ins and out of the program.)

The state revenue department, which administers the tax credit, issued an administrative rule that barred the scholarships from being used at religious schools. It cited a state constitutional provision that says the state “shall not make any direct or indirect appropriation or payment from any public fund or monies ... 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.”

The state rule was challenged as a violation of the free-exercise clause of the U.S. Constitution by parents who sought to use the scholarship aid at religious schools.

The Montana supreme court in 2018 invalidated the entire tax-credit program, for both religious and nonreligious schools, based on the state constitutional provision. But it stayed its decision, and money from scholarship contributors claiming the tax credit in the 2018 tax year is being used by a private organization to give $500 scholarships to about 40 families this school year.

Leading up to this month’s oral arguments in the Espinoza case, the parties and many other groups filed nearly 50 briefs, many of which discuss the issue regarding the Blaine amendment raised 20 years ago by Justice Thomas.

“Congress considered [the federal Blaine amendment] during an era of widespread hostility to Catholicism in general and to Catholic schools in particular,” says a brief in support of the private school parents filed by the Trump administration.

Montana’s constitutional provision, included in the state’s first constitution in 1889 and kept in substantially the same wording in its 1972 constitution, “was originally adopted by a Protestant majority to prevent funding for Catholic schools while preserving funding for—and effectively coercing all students to attend—the Protestant-oriented public schools,” says the brief for the parents filed by the Institute for Justice.

Scholars disagree about the degree to which anti-Catholic animus was a motivating factor for the adoption of no-aid provisions in state constitutions in the Blaine era.

Richard W. Garnett, a law professor and religious-liberty scholar at the University of Notre Dame, said in an interview that the federal Blaine amendment and the baby Blaines were animated and propelled by anti-Catholic sentiment.

“A significant reason for the anti-aid movement in the 19th century was hostility to the Roman Catholic church,” he said. “I just don’t think that basic position is seriously denied by anybody.”

Montana, which is defending its state constitutional provision (and thus not the tax credit adopted by its legislature), says in its brief that “the historical record is more complex” than the parents and their allies suggest.

“Montana neither minimizes nor condones the anti-Catholic bigotry that unquestionably has existed throughout this nation’s history,” the state’s brief says. But Montana’s no-aid clause is not the product of that bigotry. Instead, it embodies the distinct intellectual tradition that regards barring aid to religious institutions as a means of protecting religious liberty.

The state’s 1972 constitutional provision was substantially the same as language in the state’s constitution of 1889, the year Montana joined the Union. The state is among 21 that adopted no-aid provisions after the federal Blaine amendment failed in 1876. (Seventeen states have no-aid provisions that predate that time.)

Steven K. Green, a law professor at Willamette University in Salem, Ore., whose scholarship on church-state separation and the Blaine amendment has been widely cited by Supreme Court justices and advocates on both sides of the issue of aid to religion, pointed out that the first no-aid clauses in state constitutions appeared in the 1830s, well before the time of the Blaine amendment.

“We all recognize the Protestant-Catholic conflict of the 19th century, but to boil that down as the primary explanation for 100 years of the development of state no-aid provisions really oversimplifies history,” he said.

Green co-wrote a brief in support of the state on behalf of the Baptist Joint Committee for Religious Liberty and three Protestant denominations.

“History is complex,” Green writes in the brief. “It does not provide simple answers to current legal disputes.”

Green said that the Blaine amendment was proposed at a time of heightened tension over Catholic immigration to the United States and what many scholars call “the School Question"—a long-running conflict over the role of Bible reading in the 19th-century public schools and the public funding of religious schools.

While it is true that some supporters of the Blaine amendment used anti-Catholic rhetoric, others had different motivations. For example, some, “viewed the Blaine Amendment as a way to ensure the financial security of state school funds at a crucial time in the development of common schooling,” Green writes in the brief.

Four Votes Short

Blaine was born of a Presbyterian father and Catholic mother, and he attended a Presbyterian church but was not particularly religious or anti-Catholic, Green has written.

He proposed his amendment after a 1875 speech by President Ulysses S. Grant calling for church and state to be “forever separate” and against public funding of private schools.

Blaine’s amendment included language that would have made the federal constitution’s establishment clause applicable to the states and declared that no state tax money “shall ever be under the control of any religious sect.”

Blaine was largely motivated by politics, Green writes. He was running for the Republican presidential nomination in 1876. Once he lost the nomination, in part because of a financial scandal, Blaine lost interest in the proposed amendment that bears his name. The measure, in amended form, passed the House by a vote of 180-7.

The House version underwent further tinkering in the Senate, making it longer and more “pro-Protestant,” Green writes. The Senate voted 28-16 in favor, but that was four votes short of the necessary two-thirds majority.

Blaine, who had been appointed to the Senate in July 1876, did not participate in that vote.

A version of this article appeared in the January 15, 2020 edition of Education Week as Deep Roots in Fight Over Religious-School Funding

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