There is a long history behind the struggle to fund religious schools


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Twenty years ago, United States Supreme Court Justice Clarence Thomas issued an appeal to arms, in a case in which the court upheld the use of federal aid for education in schools private nuns for the loan of library books, computers and other materials.

“Opposition to aid to ‘sectarian’ schools rose to prominence in the 1870s with Congressional consideration (and passage) of the Blaine Amendment, which would have amended the Constitution to prohibit any aid to sectarian institutions, “Thomas wrote in a majority opinion in the 2000 case, Mitchell v. Helms. “The review of the amendment arose at a time of widespread hostility towards the Catholic Church and Catholics in general, and it was an open secret that ‘sectarian’ was the code for ‘Catholic’. “

Thomas went on to say that nothing in the First Amendment ban on government establishment of religion requires the exclusion of religious schools from otherwise permitted aid programs.

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

On January 22, the Supreme Court will hear a new case concerning government money paid to private religious schools. In Espinoza v. Montana Department of Revenue (Case No. 18-1195), the judges will consider whether the Montana state constitutional provision prohibiting aid to religious schools violates the First Amendment guarantee of the free exercise of religion.

‘Baby Blaine’ Amendments

The case could spell a dramatic turning point in a debate that has rocked the nation at least since the days of the Blaine Federal Amendment, introduced to Congress in 1875 by James G. Blaine, then a member of the Maine House of Representatives. Although the federal measure failed, more than 20 states subsequently passed “baby Blaine” amendments – state constitutional measures that in one form or another prohibit government assistance to religious denominations and schools. religious.

Douglas Laycock, a professor of law at the University of Texas at Austin and a leading scholar on religious freedom issues, said in an interview that if, as he predicts, the High Court decides that the Montana state constitution does not can not ban scholarship aid in religious schools, it will be “important enough”.

Laycock co-wrote a friend of the court memoir in support of continued use of the Montana tax credit to help religious schools filed by the Christian Legal Society, the United States Conference of Catholic Bishops and several denominations and religious groups.

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

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

The state revenue department, which administers the tax credit, issued an administrative rule prohibiting the use of scholarships in religious schools. He cited a state constitutional provision that says the state “shall not make any direct or indirect appropriation or payment from public funds or money … for sectarian purposes or to aid a church, school, academy, seminary, college, university, or any other literary or scientific institution, controlled in whole or in part by a church, sect or denomination.

The state rule was challenged as a violation of the U.S. Constitution’s free exercise clause by parents who sought to use scholarship assistance in religious schools.

Montana Supreme Court in 2018 invalidated the entire tax credit program, for religious and non-religious schools, based on the constitutional provision of the state. But he put his decision on hold, and scholarship recipients’ money claiming the tax credit in the 2018 tax year is being used by a private body to award $ 500 scholarships to around 40 families this school year.

Ahead of this month’s pleadings in the Espinoza In that case, the parties and many other groups filed nearly 50 briefs, many of which deal with the Blaine Amendment issue raised 20 years ago by Justice Thomas.

“Congress considered [the federal Blaine amendment] at a time of generalized hostility to Catholicism in general and to Catholic schools in particular, ”says a memoir in support of parents in private schools filed by the Trump administration.

Montana’s constitutional provision, included in the state’s first constitution in 1889 and retained in much the same language in its 1972 constitution, “was initially adopted by a Protestant majority to prevent funding of Catholic schools while preserving the funding for and effectively forcing all students to attend “Protestant-oriented public schools,” says the parents’ brief submitted by the Institute for Justice.

Researchers disagree on the extent to which anti-Catholic animosity was a motivator for enacting non-aid provisions in state constitutions during Blaine’s day.

Richard W. Garnett, a law professor and religious freedom specialist at the University of Notre Dame, said in an interview that the Federal Amendment Blaine and Baby Blaines were animated and propelled by anti-Catholic sentiment.

“An important reason for the anti-aid movement in the 19th century was hostility to the Roman Catholic Church,” he said. “I just don’t think this basic position is seriously denied by anyone.”

Montana, which defends its state constitutional provision (and therefore not the tax credit adopted by its legislature), said in his memory that “the historical record is more complex” than the parents and their allies suggest.

“Montana does not minimize or condone the anti-Catholic bigotry that has unquestionably existed throughout the history of this country,” states the state brief. But Montana’s no-aid clause is not the product of this fanaticism. Instead, he embodies the distinct intellectual tradition that views the prohibition on aid to religious institutions as a way to protect religious freedom.

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

Steven K. Green, professor of law at Willamette University in Salem, Oregon, 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 non-aid clauses in state constitutions appeared in the 1830s, long before the time of the Blaine Amendment.

“We all recognize the Protestant-Catholic conflict of the 19th century, but summing this up as the main explanation for 100 years for the development of state non-aid provisions really simplifies the story,” he said.

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

“The story is complex,” Green wrote in the memoir. “It does not provide simple answers to current legal disputes. “

Green said the Blaine Amendment came at a time of heightened tension over Catholic immigration to the United States and what many scholars call “the school question” – a long-standing conflict over the role. of Bible reading in 19th century public schools. and 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 means of ensuring the financial security of public school funds at a critical time in the development of common education,” Green wrote in the brief.

Four short votes

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

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

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

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

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

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

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