September 12, 2019

The Words Missing from a New York Times Essay about Religious Liberty
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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