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1 STATE BLAINE AMENDMENTS: ORIGINS, HISTORY, AND EDUCATION POLICY IMPLICATIONS FOLLOWING MITCHELL, ZELMAN AND LOCKE By DOUGLAS F. JOHNSON A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2008
2 2008 Douglas F. Johnson
3 To Mom: You did it! It just took me a while longer to do my part.
4 ACKNOWLEDGMENTS I owe a debt of thanks to Dr. Craig Wood for hi s advice and assistance through many research projects in addition to this dissertation; and to the other members of my committee: Phil Clark, David Honeyman, Bernard Oliver, and Colleen Swain. I owe perhaps an even greater debt to Angela Rowe, Graduate Secretary in the Department of Educational Leadership, whose diligence and organization helped keep me, not to mention countless other graduate students, on track. I must also thank my friends Bryan Williams and Randy Graff whose patient listening and insightful questions helped maintain flagging intere st at times when it was easier to give up than to keep moving forward in the end, either of th em probably could have wr itten this dissertation for me. Likewise, numerous colleagues have en couraged me throughout the dissertation and Ph.D. process: Sara Conklin, Fran McDonell, Judy Robinson, Stephen Starke, Elaine Turner, and Fedro Zazueta stand out in that list. Of course, I am infinitely grateful (or as near to as this very finite person can be) to my father, Frank Johnson; my wife Lyvonne; and my precious daught ers, Lorelei and Ceilidh, for their loving patience and support during the ma ny years through which they gracefully contributed to this research the time and attention of their son, husband, and father. Most of all, I would like to thank my mother, Carolyn Allen Johnson. Unfailing in her love and belief in her son, my most constant goad a nd source of encouragemen t, she did not live to live to see her effort come to fruition; but sh e, more than anyone, deserves credit for this accomplishment.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ............................................................................................................... 4LIST OF TABLES ...........................................................................................................................7ABSTRACT ...................................................................................................................... ...............8 CHAP TER 1 INTRODUCTION .................................................................................................................. 10Research Questions ............................................................................................................ .....23Significance of the Study ........................................................................................................24Method of the Study ...............................................................................................................25Statement about Sources ....................................................................................................... ..25Limitations of the Study ...................................................................................................... ...26Organization of the Study .......................................................................................................262 LITERATURE REVIEW .......................................................................................................28Mitchell v. Helms ............................................................................................................. ......50Zelman v. Simmons-Harris .....................................................................................................553 THE WASHINGTON PROMISE SCHOLA R SHIP PROGRAM AND LOCKE V. DAVEY ......................................................................................................................... .........65Briefs Amicus Curiae in Support of Davey ............................................................................69First Amendment Esta blishment Clause ......................................................................... 70First Amendment Free Exercise Clause .......................................................................... 72First Amendment Free Speech Clause ............................................................................ 73Equal Protection ..............................................................................................................75Conflict between State and Fede ral protections of rights ................................................ 75Excessive Entanglement .................................................................................................. 77Blaine Amendment History ............................................................................................. 78Briefs Amicus Curiae in Support of Locke .............................................................................80Play in the Joints .......................................................................................................... 80Is aid permissible? cannot b ecome is aid compulsory? ............................................ 85Denial of a subsidy to a constitutionally protected activity is not an unconstitutional penalty ....................................................................................................................... ...89The Promise Scholarship Program does not establish a public forum, so public forum rulings do not apply to this case ........................................................................95Accepting Daveys position will flood states with litigation .......................................... 97Blaine Amendment History ............................................................................................. 99
6 4 THE SUPREME COURT DECISION IN LOCKE AND AN ANALYS IS OF STATE CONSTITUTIONS ............................................................................................................... 1125 CONCLUSIONS, POLICY IMPLICATI ONS, AND FUTURE RESEARCH .................... 157Future Litigation ...................................................................................................................161Policy Implications ...............................................................................................................163Future Research ....................................................................................................................168APPENDIX A BLAINE CLAUSES IN CURREN T STATE CONSTITUTI ONS ...................................... 170B THE FIFTY STATES AND THEI R DATES OF STATEHOOD ....................................... 182C NINETEENTH CENTURY PAPAL DECR EES EXPRESSING HOSTI LITY TO AMERICAN IDEOLOGY AND POLITY .......................................................................... 183D THE FLUSHING REMONSTRANCE ................................................................................ 190E MEMORIAL AND REMONSTRANCE AGAI NST RE LIGIOUS ASSESSMENTS, 20 JUNE 1785 ............................................................................................................................193F JEFFERSONS BILL FOR ESTABLIS HING R ELIGIOUS FREEDOM WHICH BECAME THE VIRGINIA STATU TE FOR RELIGIOUS FREEDOM, 1779 .................. 201LIST OF REFERENCES .............................................................................................................204Cases Cited ...........................................................................................................................212BIOGRAPHICAL SKETCH .......................................................................................................215
7 LIST OF TABLES Table page 2-1 First appearance of no compulsory atte ndance or support in st ate constitutions, 1776 to 1800. ..............................................................................................................................632-2 First appearance of no compulsory atte ndance or support in st ate constitutions, 1776 to 1850. ..............................................................................................................................632-3 Adoption of no preference clauses .....................................................................................644-1 Eighteenth century state cons titutional provisions reject ing state support for clergy ..... 1464-2 General categories of state constitutional clauses having the potential to affect the transfer of tax dollars into religious institutions .............................................................. 1484-3 No compulsory support clauses in state constitutions, 1776 to 1799 ..............................1484-4 No compulsory support clauses in state constitutions, 1800 to 1825 ..............................1494-5 No compulsory support clauses in state constitutions, 1826 to 1850 ..............................1494-6 No public support clauses in state constitutions, 1776 to 1900 ....................................... 1504-7 No appropriation for church schools cl auses in state constitutions, 1776 to 1900 .......... 1514-8 Clauses in state constitutions stating there shall be no grant of land or aid to religious institutions, 1776 to 1900 ................................................................................................. 1514-9 Clauses in state constitutions stating that no religious institution shall have an exclusive right to state e ducational funds, 1776 to 1900 .................................................1524-10 Clauses in state constitutions stating pub lic schools are to be free from sectarian influence, 1776 to 1900....................................................................................................1524-11 Use of the term sectaria n in context in nineteenth and twentieth century state constitutions ................................................................................................................. ....1534-12 Use of the term sect in context in nineteenth and twen tieth century state constitutions ................................................................................................................. ....1554-13 Clauses stating that no preference shall be given to any religious group, 1776 to 1799 .156
8 Abstract of Dissertation Pres ented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy STATE BLAINE AMENDMENTS: ORIGINS, HISTORY, AND EDUCATION POLICY IMPLICATIONS FOLLOWING MTCHELL, ZELMAN AND LOCKE By Douglas F. Johnson December 2008 Chair: R. Craig Wood Major: Educational Leadership My study examined the implications for state legislatures, courts, and educational policy makers of the 2004 U.S. S upreme Court decision in Locke v. Davey as it applies to state Blaine Amendments. The Locke decision upheld the denial of a Pr omise Scholarship to Joshua Davey because he chose to declare a major in prepara tion for Christian ministry. Daveys supporters argued that the denial of the sc holarship represented discrimination against religion based on the Article I, Section 11 of the Wa shington constitution; a so-calle d Blaine Amendment. Blaine Amendments are found in at least thirty stat e constitutions, and Blaine opponents argue that these clauses are legacies of Nineteenth Centur y anti-Catholic hostility and should be declared unconstitutional. Many state constitutions contai n Blaine language, a nd those clauses often influence state funding programs such as school voucher programs and faith-based initiatives, therefore, the Courts determination that the Washington clause in que stion was not a Blaine Amendment despite using Blaine language has im portant implications fo r state policy makers. In light of Locke I examined all 169 state constitu tions written between 1776 and 1920, as well as the fifty modern state constitutions to identify those with Blaine language. Second I analyzed the history of the Blaine Amendments the wording of the amendments, constitutional
9 debate at the time of adoption, patterns of ratific ation, and other factors that may shed light on the legislative intent behind these clauses. Third, I demonstrated that while there was significant anti-Catholic hostility animating the Blaine pe riod, numerous other, constitutionally legitimate, issues and goals also informed the adoption of those clauses. Finally, I argue that, as a result of the Locke decision, the Blaine Amendment controversy must now devolve to the states, and that advoc ates on both sides of the Blaine debate will ultimately need to fight state-by-state challenges because the constitutionality of these clauses will depend largely on the circumstances of adopti on in each state and specifically whether an identifiable legacy of anti-Catholic bias can be attributed to legislativ e intent in adopting the clause in the past as well as in modern state constitutions
10 CHAPTER 1 INTRODUCTION On February 25, 2004 the United States Suprem e Court presented its decision in the case Locke v. Davey .1 Among the many issues present before the Court in Locke were the state constitutional clauses known generally as B laine Amendments. Thes e Amendments, adopted during the Nineteenth Century, stat e that state funds may not be de livered to sectarian schools. However, it is now being argued by Blaine oppone nts, sectarian was a code word for antiCatholic; therefore these clauses are unconstitutional. On th e other hand, Blaine supporters argue these clauses are not unconstitutional; that whatever the origins, the modern clauses no longer bear any anti-Catholic taint and that these clau ses are legitimate exercises of state efforts to avoid the excessive entanglem ent of church and state In contemporary state constitutions these clauses have the potential to inhibit the flow of tax dollars into religious instit utions in schools. Potential is the key word; because current practice is different among the states in that some states that have Blai ne clauses in the state constitutions allow religious institutions to rece ive tax dollars while othe r states with Blaine clauses do not. As a result of divergent state constitutional interpretation and practice, it was hoped by many that the U.S. Supreme Court in Locke would clarify once and for all the Constitutionality of these Blaine Amendments. The First Amendment to the United States Constitution contains five clauses, of which two relate to religion: Congre ss shall make no law respecting an establishment of religion, or prohibiting the free exer cise thereof .2 These are known as the Establishment and Free Exercise Clauses. 1 540 U.S. 712 (2004). 2 US Const, Amend I, 1.
11 These clauses frame the American legal stru cture behind the concep t of separation of church and state and the wide variety of ways in which religious life and political life interact. While each clause seems clear and succinct, the two clauses taken to gether have been the source of numerous legal and judicial controversies; because taken to logical extremes, each clause tends to conflict with the other.3 In writing these clauses, the founding fathers of the United States were aware not only of the history of religious strife in Europe, but also the diversity of religio us sects and belief among the former colonies. When the Constituti on was presented to the public, many people complained that the document had slighted God, for it contained "no recognition of his mercies to us or even of his existence."4 The Constitution said nothing about religion for two primary reasons: first, many delegates believe d that if any power to legislat e on religion existed at all, it lay within the domain of the states, not the national, government;5 second, many delegates believed introducing a politically volatile issu e such as religion into the Constitution would generate significant controversy making it much harder to ratify.6 Many of the individual states had been founded with specific religious intent and, as a result, religious differences were abundant. Massachusetts, indeed most of Ne w England, for example, was dominated by Calvinist Puritans who had established th emselves as the Congregational Church.7 Maryland was 3 School Dist. V. Schempp, 374 U.S. 203, 247 (1963). See also Walz v. Tax Commission of the City of New York 397 U.S. at 668-669 (1970). 4 Religion and the Founding of the American Republic. In Library of Congress Exhibit [online]. Available from http://www.loc.gov/exhibits/religion/rel06.html. 5 Id 6 Id 7 Morison, et al. The Growth of the American Republic Vol 1, 7th ed. (New York: Oxford University Press, 1980). p. 215.
12 predominantly Catholic along the coast and Presbyterian inland.8 Pennsylvania was largely Quaker,9 Virginia was predominately Anglican (later Episcopalian) and discriminated against other Protestants through the Anglican Church monopoly on performing marriages;10 and Georgia was being influenced by the appearance of Methodism.11 Furthermore, the new rational thinking of the Enlightenment influenced many of the Founding Fathers, typified by Thomas Jefferson, who are best considered Deists or even Agnostics.12 One of the great questions of the post-Revolutionary period, then, was simply how to balance the competing claims of these religious movements. Furthermore, colonial efforts to legally enforce religious practice and morality had been notably ineffective,13 influencing considerations of how to address religion in the Constitution. As a result of deep religious differences, th e founding fathers largel y ignored religion in the new Constitution, perhaps because they were aw are that the constitutional deliberations could easily deadlock and fail on the subject of religi on. Their silence, while wise on one hand, makes it difficult for modern legal scholars and histor ians to determine original intent that might guide present understandings.14 8 Id 9 Id p. 74-75. 10 Id p.107. 11 Id 12 Library of Congress, supra. http://www.loc.gov/exhibits/religion/rel02.html. 13 See e.g. David Flaherty, Law and the Enforcement of Moral in Early America in American Law and the Constitutional Order: Historical Perspectives (Harvard Univers ity Press, 1978). 14 For example, see the October 18, 1996 speech, "A Theory of Constitution Interpretation" by Justice Antonin Scalia, remarks at The Catholic University of America Washington, D.C. Oct. 18, 1996. advocating original intent. See also the discussions of the related Legislative Intent in Legislative Analysis and Drafting, 2nd edition 1984 by William Statsky, pages 3, 40, 75, 76, 118, 119, 152, 153 and N. Singer, Sutherland on Statutory Construction Section 46.07 on the "Limits of Literalism" and the case notes following CCP Sec. 1859 and Evidence Code Sec. 462 (c) in the West or Deering annotated codes. See also Terry Bouton, Whose Original Intent? Expanding the
13 The doctrine of separation of church and state arose from that constitutional silence. The nature of that separation has varied widely throughout the history of the United States as a result of the deep yet conflicting role pl ayed by religion in American society. Alexis de Tocqueville, in his Journey to America observed that Americans were a religious people15 and the nature of religious diversity and public debate, not to mention the role of the religious right in contemporary politics suggest this is still true today; 16 though arguably to a lesser extent. At the same time, cultural and social cha nges beginning in the middle of the Twentieth Century made the nation more diverse both in term s of the peoples that made up the country and in terms of religious beliefs and attitudes, including the absence or rejection of religion.17 Historians agree that diversity characterizes a great deal of late-Twen tieth Century American Concept of the Founders. Law and History Review, Vol. 19, No. 3. Fall 2001. In this review of Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788828, Brendan McConville, These Daring Disturbers of the Public Peace: The St ruggle for Property and Power in Early New Jersey, and Woody Holton, Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia, Bouton discusses the problem of exactly who the Founders were and how historical understandings of original intent might change based on how this critical term is defined. To further confound the problem, Susan Jacoby argues in Freethinkers: A History of American Secularism that it was America's secularist "freethinkers" who were actually the primary influences upon which our nation was built raising further problems in determining original intent. 15 Alexis de Tocqueville, Journey to America trans. George Lawrence, ed. J.P. Mayer (New York, Anchor Books, 1971), xv-xvi. 16 See, e.g. Theodore Caplow, All Faithful People: Change and Continuity in Middletowns Religion (Minnesota: University of Minnesota Press (1983); George Gallup, Jr. and Jim Castelli, The Peoples Religion: American Faith in the 90s, Macmillan Publishing Company (1989); Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, New York: Anchor Books (1994); Robert Bella, et al. Habits of the Heart: Individualism and Commitment in American Life (University of California Press (1996). 17 See e.g. William R. Hutchison, Religious Pluralism in America: The Contentious History of a Founding Idea Yale University Press (2004); George M. Marsden, Fundamentalism and American Culture, 2nd ed Oxford University Press (2006); Edwin Gaustad, The Religious History of America: The Heart of the American Story from Colonial Times to Today Harper (2004); Catherine Albanese, America: Religions and Religion 3rd ed Wadsworth Publishing (1998); Mary Farrell Bednarowski, New Religions and the Theological Imagination of America, Indiana University Press (1995).
14 religious life, but how much attention should be given and where to begin speaking of the diversity remain contested issues.18 As a result of this religious milieu, most parents want their children raised in environments that reflect their personal philosophies and values.19 At the same time, many parents want limited exposure of their children to competing value systems while they are young and impressionable.20 As a result, the schools are expected to inculcate values into students; but woe betides the school that finds itself teaching the wrong values.21 That contradictory impulse contributes to the consta nt appearance of religious issues and the schools before the courts. But this is not new. As a result of th e original constitutional silence religion clause jurisprudence has been a lively ar ena of law for more than two centuries. Nowhere is this more clearly illustrated than in the relatively recent changes to Supr eme Court interpretations of the proper relationship between church and state and of the tw o religion clauses.22 18 Joanne C. Beckman, Religion in Post-World War II America Retrieved online at http://www.nhc.rtp.nc.us:8080/tserve/twenty/tkeyinfo/trelww2.htm. 19 Mark Schneider & Jack Buckley, What Do Parents Want From Schools? Evidence From the Internet, Educational Evaluation and Policy Analysis, Vol. 24, No. 2, 133-144 (2002). 20 Id 21 See e.g. Mary Breasted, Oh! Sex Education Praeger Publishing Company (1979); Lawrence J. Haims, Sex Education and the Public Schools Lexington Books (1973); James Hottois and Neal A. Milner, The Sex Education Controversy: A Study of Politics, Education and Morality Lexington Books (1975); Richard Kerckhoff & Family Coordinator Panel, Community Experiences with the 1969 Attack on Sex Education The Family Coordinator, #19, 104-110. (1970). See also Vivian T. Thayer, The Attack Upon the American Secular School Beacon Press (1951) (arguing that attacks on public schools were becoming more organized and increasingly determined to break down the wall of separation between Church and State and interesting argument from 1951 given its relevance to the present); Robert C. Fuller, Naming the Anitchrist: The History of an Obsession Oxford University Press (1996) (discussing the political and social demonising of adversar ies as they relate to nativism, anti-Communist crusades, and religious attacks on secularism); Tim LaHaye & David Noebel, Mind Siege: The Battle for Truth in the New Millennium, Word Publishing (2000) (a religious attack on secularism that identifies sec ular humanism which dominates schools as a religion that has undermined the moral fabric of America.); Barbara Forrest & Paul Gross, Creationism's Trojan Horse: The Wedge of Intelligent Design Oxford University Press (2007) (asserts that intelligent design rejects the methodology of modern science and represents an attack on secular public education). 22 See e.g. Matthew Jones, Who Converted the Court?: E xplaining Changes in Establishment Clause Legal Policy Outcomes. (paper presented at the annual mee ting of the Western Political Science Association, Hyatt Regency
15 The role of the courts in affecting, perh aps even determining, the religious or nonreligious nature of public institut ions cannot be overstat ed. State and local c ourts field challenges to the policies and practices of local schools and school boards. Regardless of these decisions, however, parents, teachers, students, taxpayers and anyone else holding a stake in the public schools can continue their challenge through th e courts, regardless of prevailing precedent Eventually, a small number of these court cases will be selected to appear before the U.S. Supreme Court, the final decision maker regardin g the constitutionality of any policy, practice, program, or legislation. But the Supreme Court does not only rule on particular cases, it attempts to develop and articulate constitutional doctrine23 to guide the lower courts specifically and federal, state and local government generally. One of the consistent topics before the courts is the flow of tax dollars into religious institutions. On this point, the U.S. Supreme Court has been inconsistent, complicating any attempt to understand constitutional limits in church -state relations as they manifest in education. This lack of predictability has created problem s for lower courts, legislatures, and other policymaking organizations.24 For example, in Mueller v. Allen ,25 Witters v. Deptartment of Services for the Blind ,26 and Zobrest v. Catalina Foothills ,27 the Court allowed tax dollars to be used to Albuquerque, Albuquerque, New Mexico, Mar 17, 2006). Online at http://www.allacademic.com/meta/p97439_index.html 23 Charles Fried, Constitutional Doctrine, 107 Harv. L. Rev 1140 (1994). 24 See, e.g. Thomas C. Berg, Religion Clause Anti-Theories, 72 Notre Dame L. Rev. 693 (1997); Religion Symposium, 7 J. Contemp. Legal Issues 275 (1996); The Supreme Court Leading Cases: Establishment Clause, 111:1 Harv. L. Rev. 279. 25 Mueller v. Allen 463 U.S. 388, 1983 (upholding a Minnesota statute allowing all parents to deduct actual costs for tuition and other education expenses from state income tax). 26 Witters v. Dept. of Services for the Blind 474 U.S. 481 (1986) (First Amendment does not preclude the use of public rehabilitation funds for an eligible blind person to prepare for the ministry). 27 Zobrest v. Catalina Foothills 509 U.S. 1 (1993) (sustaining section of IDEA providing all disable children with necessary aid).
16 provide certain services in relig ious schools. On the other hand, use of tax dollars was deemed unconstitutional in School District of Grand Rapids v. Ball ,28 and Aguilar v. Felton .29 Of course, specific details and circumstances in each case have led to these apparent conflicts; but perceived inconsistencies have made it difficult for edu cational policy makers to establish clear and practical guidelines to be used by legislatures and school boards for determining ahead of an offense whether a particular polic y or practice is constitutional. The problems emerging from changing church-state jurisprudence have been examined extensively. One line of criticism of the Court has focused on its frequent invocation of original intent.30 According to Lawrence Tribe, a focus on original intent forces the Court to assume the role of constitutional historian;31 but in this role the Court has failed to identify a single original intent for the Establishment Clause and, in fact, has produced both the wall of separation advocated by Justice Black in Everson ,32 the radically diffe rent "accommodation" idea proposed in dissent by Justice Rehnquist in Wallace v. Jaffree,33 and the current principle of neutrality advocated in Mitchell34 and Zelman.35 28 School Dist. of Grand Rapids v. Ball 473 U.S. 373 (1985) (shared time and community programs for nonpublic schools students have the primary effect of advancing religion). 29 Aguilar v. Felton 473 U.S. 402 (1985) (using federal funds to pay the salaries of public school teachers in parochial schools violates the establishment clause). 30 See e.g. the debate between Ju stices Stevens and Scalia across Van Orden v. Perry, 351 F.3d 173 (2005) (Stevens, dissenting) and McCreary County, Ky v. the American Civil Liberties Union of Kentucky 354 F.3d 438 (2005) (Scalia dissenting); see also the extensive di scussion of original intent recorded in Alden v. Maine 527 U.S. 706 (1999). 31 Laurence H. Tribe, American Constitutional Law. (West Publishing Company, 1978) p. 817. 32 Justice Black in Everson v. Board of Education 330 U.S. 1 at 16 (1947) ("The clause against establishment of religion by law was intended to erect a wall of separa tion between Church and Stat e;' quoting from Thomas Jeffersons Letter to the Danbury Connecticut Baptist Association in 1802 ) 33 475 U.S. 38, 91-106 (Rehnquist, J., dissenting). In his di ssent, Rehnquist concluded that there is no historical foundation for the wall of separation idea, and that the Establishment Clause at the time of its adoption had "acquired a well-accepted meaning: it forbade establishmen t of a national religion, and forbade preference among religious sects." Id at 106. According to Rehnquist, "the Establishment Clause did not require government neutrality
17 Likewise, some scholars have argued that the whole concept of original intent is flawed and that once the Court incorpor ated the Bill of Rights, and in particular the Religion Clauses against the states, original intent was invalidated: The grand search es for original intent seen in Everson Wallace and other opinions are fu tile once it is understood th at, while the Framers of the First Amendment might have had an inten tion regarding the appli cation of the Religion Clauses to the national government, they had no such intention regarding application of the clauses to the states except that the clause s were not intended to apply to the states.36 As a result, until the Supreme Court choos es to discard the incorporati on of the Religion Clauses, it is improper for the Court to use the intention of the Framers of the Religion Clauses to color the limitations imposed by those clauses on state action.37 Obviously, the Court disagrees.38 Another key problem has been the use of histor ical practice to decide cases. This can be seen in several Establishment Clause cases, wh ere the Court has reviewed various traditions under which state governments have suppor ted religion and religious practices.39 In these cases, between religion and irreligion nor did it prohibit the Federal Government from providing non-discriminatory aid to religion." 34 M itchell v. Helms 530 U.S. 793 (2000). 35 Zelman v. Simmons-Harris 536 U.S. 639 (2002). 36 Stuart Poppel, Federalism, Fundamental Fairness, and the Religion Clauses. 25 Cumb. L. Rev 247 (1995). See also Harold Berman, Religion and Law: The Fi rst Amendment in Historical Perspective, 35 Emory L.J. 777, 778 (1986) note 19, at 778. (To speak, then, of the history of the first amendment, and of the intent of the Framers as courts and writers continually insist that we must do if we are to understand what the Constitution requires in the sphere of "Church and State" is to run up against the plain facts that the first amendment left the protection of religious liberty at the state level to the states themselves and that the Framers expresse d no intent concerning how the states should exercise their responsibilities in the matter). 37 Id. 38 See e.g. Justice Antonin Scalia, A Theory of Constitution Interpretation. Address given at The Catholic University of America Washington, D.C. (October 18, 1996). Transcript online at http://www.courttv.com/archive/legaldocs/rights/scalia.html. 39 See, e.g., Marsh v. Chambers 463 U.S. 783, 786-91 (1983) (upholding Nebraska's practice of paying for a chaplain to provide prayers for its legislative body); Walz v. Tax Comm'n 397 U.S. 664, 676-78 (1970) (providing tax exemptions for religious properties); McGowan v. Maryland 366 U.S. 420, 431-36 (1961) (blue laws do not
18 members of the Court have argue d that long-standing government involvement with religious practices serves as prima facie evidence of its constitutionality.40 Marsh v. Chambers41 and Walz v Tax Commissn42 are obvious, though not the only, illustrations of this practice.43 In, Marsh for example, the Court observed chaplains have been employed by legislatures since the First Congress. Therefore they concluded, "from co lonial times through the founding of the Republic and ever since, the practice of legislative pr ayer has coexisted with the principles of disestablishment and religious freedom.44 However, as Poppel point s out, whether a religious practice was allowed under state law in the pa st became irrelevant once the Religion Clauses were incorporated against the states: It is wrong to say, as Justice Kennedy once did, that, [a] test for implementing the protections of the Establishment Clause th at, if applied with consistency, would invalidate longstanding trad itions cannot be a proper reading of the Clause.45 It is wrong because the current equa tion of the standards for st ate and national governments does not leave room for the consideration of peculiar state historical practices,46 that is, until the Court begins to create historical exceptions under the First Amendment. We violate the Free Exercise Clause because plaintiffs a lleged only economic disadvantage not infringement of their religious practices). 40 See Poppel, supra : It appears as though the Court has created a "historic exception" to the Establishment Clause. See also Thomas R. McCoy & Gary A. Kurtz, A Unifying Theory for the Religion Clauses of the First Amendment, 39 Vand. L. Rev 249, 252 (1986). It should be noted that the Court has given little weight on the free exercise side to the history of a particular religion that is claiming a free exercise violation. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n 485 U.S. 439, 451-52 (1988). 41 463 U.S. 783, 786-91 (1983). 42 397 U.S. 664, 676-78 (1970); see e.g. McGowan v. Maryland 366 U.S. 420, 431-36 (1961). 43 See, e.g. Scalia in Lee v. Weisman 112 S. Ct. 2649, 2679 (1992) (Scalia, J., dissenting) (criticizing Court for invalidating the reading of a prayer at a public school graduation), and Texas Monthly v. Bullock 489 U.S. 1, 29-34 (1989) (Scalia, J., dissenting) (criticizi ng the Court for invalidating a sales tax exemption for religious publications). 44 Marsh supra at 786 45 Allegheny v. ACLU 492 U.S. 573, 670 (1989) (Kennedy, J., concurring in part and dissenting in part).] 46 Thirty years ago, Howe made a similar argument when he criticized the Court for mixing the traditions seen at the federal level in the Eighteenth Century with those seen at the state level in the Nineteenth and Twentieth centuries, and for confusing the histories of the First an d Fourteenth Amendments. Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (University Of Chicago Press, 1965), p. 16.
19 have to ensure that we do not infuse the hist orical practices of states into the standards for the national government, and vice-versa; in short we need to use the proper history in its proper place.47 In the last few years, these inconsistenc ies have multiplied as the Rehnquist Court abandoned the Lemon Test in favor of a thus far less cl early defined principle of neutrality. The Lemon Test, which for twenty-five years served as the key test of constitutionality where religious affairs were con cerned, takes its name from Lemon v. Kurtzman 48 in which the Supreme Court determined that to be consti tutional government actions that impinge upon religion must demonstrate that they are 1) neutral in legislative in tent, 2) do not have the primary effect of either advancing nor inhibiting religi on, and 3) do not excessively entangle government in religious affairs. However, advocates for in creasing the flow of tax dollars into religious institutions and programs have argued that the Lemon test resulted in overl y restrictive judicial decisions that disfavored religi on. The Rehnquist Court has agreed and has articulated a principle of neutrality the limits of which have not yet been fully developed. The willingness of the Rehnquist Court to s ee unconstitutional restrictiveness where previous Courts have not has led advocates of increased tax support for programs in religious institutions to mount a multi-facet ed attack on apparent impediment s to the flow of tax dollars into religious organizations. One key result of this trend is that church-state jurisprudence has devolved to the states as the U.S. Supreme Court has removed previous fede ral barriers to the flow of tax dollars into religious organizations but st ate level funding programs have run afoul of state provisions 47 Slightly paraphrasing a phrase used by Professor Albert Ehrenzweig in the choice of law field. Albert A. Ehrenzweig, A Proper Law on A Proper Forum: A Restatement of the Lex Fori Approach', 18 Okla. L. Rev 340 (1965). 48 Lemon v. Kurtzman, 403 U.S. 602 (1971).
20 barring such use of tax dollars. These state constitutional provis ions are being called Blaine Amendments, Baby Blaines, and Little Blaines49 and are becoming increasingly important as the Supreme Court has progressively lowered federal constitutional barriers to religious access to public funds.50 Blaine Amendments are the re sult of an informal movement initiated by Nineteenth Century speaker of the House of Representative s and later U.S. senator, James G. Blaine. Congressman James Blaine represented the state of Maine in the House of Representatives from 1863-1876 and in the Senate from 1876-1881. He also ran for president three times. However, his sole claim to lasting fame resulted from an attempt to amend the U.S. Constitution. In 1875 Blaine introduced before the House of Repr esentatives a Constitutional amendment barring tax support for sectarian institutions.51 The amendment was edited in the House and passed, but it failed in the Senate.52 While the proposal failed as a federal amendment, for roughly three decades Congress required that each new state inco rporate similar language in its constitution as a condition for joining the union.53 There is no universally agreed-upon defin ition of exactly what constitutes a Blaine Amendment. As a result, it is unclear how many state constitutions contain these clauses. For 49 Jill Goldenziel Blaines Name in Vain?: State Constitutions, School Choice, & Charitable Choice. Denver University Law Review Vol. 83, No. 1, Fall 2005 50 Kyle Duncan, Secularisms Laws: State Blaine Amendments and Religious Persecution. 72 Fordham L Rev 493 (2003). 51 4 Cong. Rec 5172, 5191 (1876) 52 4 Cong. Rec 5558, 5596 (1876) 53 See, e.g., Act of Feb. 22, 1889, ch. 180, Sec. 4, 25 Stat. 676, 677 (1889) (enabling act for North Dakota, Montana, South Dakota, and Washington); Act of 3 July, 1890, ch. 656, Sec. 8, 26 Stat. 215, 216 (1890) (enabling act for Idaho); Act of June 20, 1919, ch. 310, sec. 2, 36 Stat. 557, 559 (1910) (enabling act for Arizona and New Mexico); See also 20 Cong. Rec. 2080, 2100 (1889) (statement of Sen. Blair arguing in favor of enabling act requirement that state constitutions). Cited in Nathan Adams, Pedigree of an Unusual Blaine Amendment: Article I, Section 3 Interpreted and Implemented in Florida Education. 30 Nova L. Rev. 1 (2005).
21 example, Gedicks identifies thirty-seven states with Blaine Amendments,54 Komer identifies thirty-six states,55 Rogers asserts there are thirty states with such clauses,56 Kinzer lists twentyfour states57 while Kirkpatrick lists only twenty.58 This study focuses on the suspect word sectarian and identifies thirty states with Blaine Amendments (see Appendix A). Regardless of the number, however, Blaine Amendments are now under attack because it is asserted, the denial of state funds to religious institutions fail s the test of religious neutrality. However, this blanket condemnation of Blaine Amendments is problematic given the unclarity surrounding what exactly constitutes a B laine Amendment. Likewise there are legitimate questions regarding which, if any of these clauses are truly rooted primaril y in anti-Catholic bigotry or whether other, valid legislative motives could be behind adoption of these clauses. Additionally, so-called Blaine Amendments have been examined, evaluated and re-adopted in many presentday constitutions and it may no l onger be valid to invest the modern clauses with putative Nineteenth Century attitudes. Finally, the princi ple of neutrality articulated by the Court does not eliminate all barriers in the relationship between C hurch and State; thus, there must still be some constitutional limitations on the flow of tax dollars into religious institutions. These issues all come together in Locke v. Davey .59 Examination of two recent cases, Mitchell v. Helms ,60 and Zelman v. Simons-Harris61 will provide the background for 54 Frederick Gedicks, Reconstruc ting the Blaine Amendments. 2 First Amend. L. Rev 85 (2003). 55 Id. 56 Remarks of Melissa Rogers, S eparation of Church and States: An Examination of State Constitutional Limits on Government Funding for Religious Institutions, Session 1. The Pew Forum on Religion and Public Life, http://pewforum.org/events/index.php?EventID=45 57 Donald L. Kinzer, An Episode in Anti-Catholicism: The American Protective Association, (University of Washington Press, 1964) p. 11-12. 58 David Kirkpatrick, The Pain of Blaine (Amendments) is on the Wane, U.S. Freedom Foundation, 2003, http://www.freedomfoundation.us/blaine_amendments___part_3 59Locke v. Davey 540 U.S. 712 (2004).
22 understanding the Court's emerging principle of neutrality; and a detailed examination of Locke v. Davey will illustrate the increasing attention bei ng paid to those Blaine Amendments and set the stage for an examination of the state constitu tional clauses at the hear t of the controversy. Locke v. Davey in particular struck right at that intersection of the Establishment and Free Exercise clauses and is therefore a key case for trying to understand the contemporary issues of church-state relations as they are viewed by the United State Supreme Court. But Locke v. Davey not only implicates the separation of church a nd state and the religion clauses, it has further implications for a wide array of issues includi ng federalism, public aid to pervasively sectarian schools, school voucher programs and other educ ational reform programs, government funding for faith based social services, and virtually all areas where religion and public life intersect. But nowhere do religion and public life intersect more heatedly than in the schools. The Supreme Court decision in Locke upholding the Washington Promise Scholarship Program complicates the picture hoped for by Bl aine opponents. At the same time, it does not simplify the picture for Blaine supporters becau se the Supreme Court's decision paradoxically agreed with Blaine opponents that Blaine Amendments were expres sions of anti-Catholic animus but then observed that because there was no such animus documented in Washington therefore, the Washington amendment in question, Article 1, section11, was not a Blaine Amendment. This decision has significant policy implications for state legislatures and educational policymakers because the future will now require stat e-by-state examination of Blaine clauses with attendant court challenges to determine whether or not a state clause is a Blaine Amendments. Regardless of which way this determination fa lls, state legislatures and educational policy60 Mitchell v. Helms 530 U.S. 793 (2000). 61 Zelman v. Simmons-Harris 536 U.S. 639 (2002)
23 makers will then be required to analyze the implications for local school funding programs Research Questions This study seeks to answ er two critical que stion for state legislators, courts, and educational policy makers: 1) In general, are the state constitutional clauses commonly labeled Blaine Amendments primarily expressions of antiCatholic legislative in tent, and 2) are they therefore to be considered unc onstitutional Blaine Amendments as defined by the Court in Locke ? This study answers both questions in the ne gative, and argues that while Nineteenth Century anti-Catholic animus quite possibly played a role in the passage of some state clauses, there were numerous legitimate motives for adop tion of these state constitutional amendments including responding to growing religious turm oil over religious practices in schools as exemplified on the Cincinna ti Bible Wars of 1869-1873. The analysis supporting this conclusion encompasses three major components. The first is tracing the trajectory of recen t Supreme Court decisions that have moved these putative Blaine Amendments from the periphery of Court atten tion to its center. The second component is an examination of state constitutions to identify thos e with clauses that have the potential to affect the flow of tax dollars into religious institutions and that also use the term sectarian, which, it has been argued, is the primary indicator of anti -Catholic intent. Finally, this study analyzes the general history of the Federal and state Blai ne language: the wording of the amendments, constitutional debate at the tim e of adoption, patterns of ratifi cation, and other factors that may shed light on the legislative intent behind th ese amendments that have come to be grouped together and identified as Blaine Amendments. This study ultimately concludes first, that most, if not all, state constitutional clauses typically identified as Blaine Am endments are not such amendments at all as defined in the
24 Locke ruling; and second, that as a result of the Locke decision, the Blaine Amendment controversy must now devolve to the states, and that advocates on both sides of the debate will ultimately need to fight state-by-state challe nges because the constitutionality of these amendments will depend largely on the specific circ umstances of adoption in each state; that the amendments as a whole can legitimately be neith er upheld or overruled as a matter of federal constitutional law. Significance of the Study Currently, the state constituti onal clauses known as Blaine Am endments exist in at least thirty state constitutions [Appendix A]. As a result, the conclusions of this analysis have nationwide implications. Because the U.S. Supr eme Court identified the Washington Promise Scholarship Program as falling into the Play in the Joints62 between the Establishment and Free Exercise Clauses, and because the Court reject ed the argument of anti-Catholic intent lying behind the Article I, Section 11 of the Washingt on Constitution, this clause, and similar clauses in other state constitutions, will continue to affect whether religious institutions can participate in certain government programs. Therefore, the pr esence or absence of Blaine language in a particular state also has the potential to impact how state legisl atures, courts, and educational policy makers -and perhaps local governments and school boards -develop and implement initiatives such as school voucher programs and provide various kinds of services for the poor and disadvantaged, particularly in programs analogous to the federal faith based initiatives. Because these so-called Blaine Amendments operate at the state level, and in Locke the Supreme Court has recently allowed Blaine language to pass Constitutional scrutiny, this study is intended 62 The concept of play in the joints originated in Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 669 (1970) and recognizes that, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause. The majority opinion in Locke repeatedly asserts the applicability of this principle to this case.
25 to inform state policy makers in this analysis of both the history of state clauses containing Blaine-like language as well as to state Supreme Court jurisprudence as they seek to design and implement educational improvement and funding programs. Method of the Study This study employed standard legal research methodologies to identi fy relevant Supreme Court cases and to identify state constitutional clauses at issue for this study. Traditional legal research focuses on a particular subject and asks, "what is the law?" While that question will discussed in this dissertation, the law per se is not be the focus of disc ussion, but rather the focus is how the principle of neutrality has emerged and been applied in recent cases, how the Supreme Court addressed the Blai ne Amendment issue in Locke and the likely implications of the Locke decision for future policy consideration; particular ly in terms of state Blaine Amendments. This type of policy analysis investigates the incidents and cases which led to a particular court decision, a state statute or a school board policy.63 Likewise, examination of selected state constitutional convention record s was undertaken to illustrate the difficulties of determining original intent of legislatures at the time of adoption as well as to suggest that the public narrative about Blaine Amendments and any puta tive anti-Catholic origin is severely oversimplified. The synthesis of this information forms the basis for the conclusions of this study and its implications for both supporters and opponents of Blaine Amendments. Statement about Sources The prim ary source for the definitions of all legal terms use in this study is Blacks Law Dictionary.64 State Constitutions were examined using Benjamin Pearly Poores The Federal 63 Patricia F. First, (1996). Researching Legal topics from a Policy Studies Perspective, in Schimmel, D. S., ed., Research that makes a Difference: Complementary me thods for examining legal issues in education. NOLPE Monograph Series #56, 1996. p. 94. 64 Blacks Law Dictionary, 8th ed. (Thomson West, 2004)
26 and State Constitutions, Colonial Charters, and Other Organic Laws of the United States,65 and William Swindler, ed., Sources and Documents of Un ited States Constitutions.66 Limitations of the Study This study is not intended to provide a com prehens ive examination of all state constitutions or even of the deliberations around all of the clauses know n as Blaine Amendments. Instead, this study is designed to identify and di scuss the historical and legal co mplications that make Blaine Amendments too complex for blanket generalizations about constitutionality or lack thereof. As a result, further study will be requi red on a state-by-state basis to el ucidate the specific legislative deliberations, social movements, and legal interp retations to determine constitutionality of each Blaine Amendment. Furthermore, this study will discuss how different state supreme courts have already interpreted those clauses with the result that Blaine Amendments do not affect the flow of tax dollars into religious institutions in any consistent fashion across the fifty states. As a result, this study can point legislatures and courts inclined to interpret a Blaine Amendment in a particular fashion to states where divergent inte rpretations are already ope rative. These divergent interpretations may also provide strategic direction to advocates on both sides of this issue. Organization of the Study Chapter II set the legal backdrop for Locke v. Davey showing the trajectory that brought the Blaine Amendment issu e before the Court. Examining Mitchell v. Helms and Zelman v. Simmons-Harris in which Blaine Amendments were di scussed, if only briefly demonstrated the increasing importance and controversy surr ounding these state cons titutional clauses. 65 Benjamin P. Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 2nd ed. (Burt Franklin, 1972) 66 William Swindler, ed., Sources and Documents of United States Constitutions, 11 vols. (Oceana Publications, 1973-1988)
27 Chapter III analyzed the case, Locke v. Davey in which Blaine Amendments played a prominent role in the briefs of both plainti ff and respondent because the briefs present the arguments for and against the constitutionality of these amendments. The analysis of the briefs demonstrated that both sides saw this case as a test of the Washington Blaine Amendment specifically, and Blaine Amendments in general. In the context of the debates in brief, the history of the Blaine period and Amendments was presente d, as was an analysis of the decision of the U.S. Supreme Court in Locke that placed the Washington Blaine Amendment in the context of Play in the Joints. Chapter IV presented an analysis of state constitutions from the Nineteenth and early Twentieth centuries. This analysis looks at word ing of the clauses, patterns of adoptions, and examines state-level debates about the meaning and possible effects of those clauses during the period of their adoption. Finally, Chapter V presented the conclusi ons of this analysis along with policy implications and recommendations for further research.
28 CHAPTER 2 LITERATURE REVIEW The Supreme Court ruling in Locke defined an interesting pair of precedents. Firs t, this ruling seems to accept the argument that Blaine Amendments are expressions of anti-Catholic bias and are, therefore, unconstitutional. Howe ver, whether or not a particular state Blaine Amendment will pass Court scrutiny is not yet clearly defined because on the Locke ruling the Court found no anti-Catholic history behind Articl e I, Section 11 of the Washington Constitution the Court and therefore determined that the Wa shington clause is not a Blaine Amendment. Therefore, a state clause would appear to qualify as a Blaine Am endment only if anti-Catholic intent can be documented. Second, it is clear from this ruling that many state constitutional clauses affecting the flow of tax dollars to religious programs and ins titutions will be affected by the declaration that some limitations on such flow will fall into the play in the joints between the Establishment and Free Exercise clauses of the United States Constitution. Therefore, state legislators, courts, and educational policy makers will need to unde rstand the implications of Blaine Amendment history in light of the Locke decision in order to develop funding programs that will meet the test of constitutionality. As is true for any historical event or movement, the effort by James G. Blaine to amend the United States Constitution did not occur in a vacuum, but was influenced by numerous causes and currents of the late Nineteenth Centur y. Many of these issues arose largely in the mid to late 1800s in response to bitter strife between an established Pr otestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools.1 1 Kyle Duncan, Secularisms Laws: State Blaine Amendments and Religious Persecution. 72 Fordham L Rev 493 (2003).
29 Seventeenth and Eighteenth Ce ntury colonial charters we re often characterized by explicit assertions of a governments responsibility to cr aft a moral citizenry, as defined by prevailing religious belief. Like wise, established churches re ceived preferen tial treatment including public funding of churches2 and making religious affilia tion a prerequisite for voting and office-holding.3 However, in the Revolutionary and Post-Revolutionary periods, as states created constitutions, there was a marked shift in the way legal documents approached the relationship between church and state.4 In the first half of the Nineteenth Century there were many judicial decisions addressing religious beliefs and practices supported by state law. For example, Sunday closing laws were common in most states prior to the Civil War. But by the 1860s, courts began to justify such laws, not on religious grounds, but as valid civil regulations.5 This mirrored broader trends in attitudes toward church -state relations refl ected by the universal abandonment of state established religions. As a result, by the time the Fourteenth Amendment was adopted, freedom to exercise religion had come to mean that st ates would not impose re ligious views on their citizens.6 2 See e.g. Conn. Const. of 1818, Art. VII, 1 and Md. Const. of 1776, Art. I, 33. Maryland had been founded as a Catholic colony but come to be dominated by the Church of England when the lords Baltimore converted to Protestantism. Samuel Morison, et al., The Growth of the American Republic Vol. 1, 7th ed. (Oxford University Press, 1980) p. 107. 3 See e.g. Mass. Const. of 1780, Part II, chapter II, 1, art. II. 4 Laura Scalia, Constituting a People: The Role of State Constitutions in Citizen Character Formation. (Political Theory Workshop presented at the University of Chicago, 1998), http://ptw.uchicago.edu//scalia98.pdf 5 See Lindenmuller v. People 33 Barb. 548, (1861); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085 (1995) (reviewing the development of ideas and judicial decisions addressing state-established religions prior to the adoption of the Fourteenth Amendment), cited in Robert R. Baugh, Applying the Bill of Rights to the States: A Response to William P. Gray, Jr. (University of Alabama Press 1982), http://www.law.ua.edu/lawreview/baugh.htm. 6 Baugh supra.
30 The change in attitude toward religion manifest s itself in two major trends: first, a decline in preferential language giving privileges to a particular de nomination or belief, and second, the increasing rejection of compulsory support for a particular religion. For example, while practically every foundationa l document illustrates [a] religious communal component,7 by 1800 clauses stipulating that no pe rson can be compelled to support a church or clergyman are found in the constitutions of eleven of sixteen states [Table 2-1].8 By 1850, this number increases to twenty-five of twenty-e ight state constitutions [Table 2-2]. Other constitutional language also appears th at further asserts an increasing position of governmental neutrality. In contrast to statemen ts that every sect or denomination of people ought to observe the Sabbath, or th e Lords day, and keep up, and support, some sort of religious worship, which to them shall seem most agreeable to the re vealed will of God,9 statements that government shall show no preference to any re ligious sect appear fi rst in North Carolina,10 Pennsylvania11 and Delaware12 in 1776, Kentucky13 in 1792, and Tennessee14 in 1796. By 1860, seventeen state constitutions contai ned this clause [see Table 2-3]. 7 Scalia supra p. 5. 8 See Appendix A for the fifty st ates and dates of statehood. 9 Vt. Const. of 1777. Chapter 1, Art. 3. 10 N.C. Const. of 1776, art. II, 34. 11 Pa. Const. of 1776, Preamble. 12 De. Const. of 1776, art. 29. 13 Ky. Const. of 1792, art. XII, 3. 14 Tn. Const. of 1796, art. IX, 3.
31 While Americans were undoubtedly just as reli gious after declared independence as they were before it,15 the shift in constitutional language re flects a transition from states conceiving themselves as religious societies to secula r communities committed to traditional liberal aims.16 In fact, Every state consti tution written during the late eighteenth century (sic) granted its members the right to free conscience, and se veral prohibited their (sic) government from compelling religious worship or church support.17 The increasing separation of church and stat e also impacted funding for education. While universal public education was still a long way from having a ro le in public policy, prior to 1800 seven state constitutions included language id entifying education as a fundamental state concern.18 The lack of language defining this concern only served to affirm the status quo; but the appearance of this language presaged the increasingly important role government would come to play in public education. During the early Nineteenth Century, many stat es re-evaluated and substantially revised constitutional language. Once again, many of the changes during this period symbolize a new way of understanding popular government.19 In particular, the popularity of Jacksonian egalitarianism and the Great Awakening, a religious revival that swept across America, changed Americas thinking about church and state. The Great Awakening was characterized by an 15 Barry Shain, The Myth of American Individualism: The Prot estant Origins of American Political Thought (Princeton University Press, 1994); cited in Scalia supra at p. 10. 16 Id. 17 Id. at 13 18 Id. at 17. See e.g. N.H. Const. of 1793, art. II, 83; Penn. Const. of 1790, art. VII, 1-2. 19 Id. at 27.
32 emphasis on appealing to the emotions and an a ffective, direct relationship between humanity and God20 that could not be compelled, but only en couraged through repent ance and conversion. One manifestation of this ch anged understanding was increa sing suspicion of the ability of government to compel proper behavior.21 Furthermore, this revival was dominated by new denominational movements such as the Methodists and Baptists, with the result that most constitutions moved away from provisions di recting support toward particular Christian beliefs.22 As a result, in 1822 Virginia added a constitutional clause prohibiting the legislature from providing funds or passing legislation th at would support one de nomination over another But no state fully gave up its Christian character entirely,23 and that character was predominantly Protestant. During 1800s, immigration from Western Europe resulted in a dramatic increase in the number of Catholics in America. In 1850 Cathol ics made up only 5 percent of the total U.S. population. By 1906, they made up 17 percent of the total population (14 million out of 82 million people).24 As a result of this growth, Catholicism came to constitute the single largest religious denomination in the country.25 Increasing Catholic numbers also meant increasing conflicts between Catholics and Protestants, am ong other things over th e role of religion in schools. In particular, Catholics objected to Protestant devotional pr actices such as readings from the King James Bible and hymn singing and they be gan to insist that public funds should be 20 Russell Kirk, The Roots of the American Order, (Open Court, 1974), p. 344. 21 See e.g. Flaherty, supra. 22 Morison, et al., supra, p. 512. 23 Scalia supra at 14. 24 Julie Byrne, Roman Catholics and Immi gration in Nineteenth-Century America National Humanities Center, November, 2000. [online]. http://www.nhc.rtp.nc.us:8080/tserve/nineteen/nkeyinfo/nromcath.htm. 25 Lash, supra., note 29, at 1123, 27 Ariz. St. L.J. 1085 (1995) citing Tyler Anbinder, Nativism and Slavery, (Oxford University Press, 1992), p. 6-7.
33 made available to support Catholic devotional practices in Catholic private schools. Of course, Catholics were not the only religious minority ; Jews were also increasing in numbers and objected to Protestant religious practices in public schools as did Atheists and Freethinkers.26, 27 But it was not just non-Christians who objected to religious practices in schools; even some Protestant leaders urged that "any and all religion be taken out of public education.28 As one advocate of this position put it, Cannot the church send out its ministers? Or are they too busy, day after day, in their studies, preparing to dole out dogmatic theo logy Sunday after Sunday, to the tired ears of their wearied congregations? Cannot they send out their missionaries ? Must we say that the church has grown idle and l azy, and can only hobble on its crutches, and therefore that our school directors must se t themselves up as teachers of religious truth?29 One increasingly popular response to this confli ct was a growing recognition that states, as well as the national government, should main tain a hands off approach to religion.30 For example, in Board of Education v. Minor ,31 the Supreme Court of Ohio addressed complaints by Catholics over religious instru ction and Bible reading in Cinc innati's public schools. Responding to complaints, in 1869 the Cincinnati school board prohibited religious inst ruction in the citys public schools. The no religious inst ruction policy was then challenged in the courts and the trial 26 Ward McAfee, The Historical Context of the Failed Federal Blaine Amendment of 1876, 2 First Amend. L. Rev 1 (2003). p. 2-3. Available at h ttp://falr.unc.edu/volume2-1/McAfee.pdf. 27 It is also interesting to note that, perhaps as a response to growing atheism and secularism, the new Texas Constitution of 1876 changed Art. 1, Section 4 to state, No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided they acknowledge the existence of a Supreme Being. Earlier state constitutions had not included this last clause. 28 Id. 29 Id at 3; citing John D. Minor, The Bible in the Public Schools (1870). Robert G. McCloskey, ed., (Da Capo Press 1969). 30 Baugh, supra 31 Board of Education of Cincinnati v. Minor 23 Ohio St. 211 (1872).
34 court supported the religious instruction and orde red its restoration. However, the Supreme Court of Ohio disagreed asserting that the Ohio Cons titution and principles that were "as old as Madison"32 and required the schools to end its religious practices. The court further observed, Legal Christianity is a solecism, a contradicti on of terms. When Christianity asks the aid of government beyond mere impartial protection it denies itself. Its laws are divine, and not human. Its essential interests lie beyond the reach and range of human governments. United with government, re ligion never rises above the merest superstition; united with religion, government never rises above the merest despotism; and all history shows us that the more widely and completely they are separated, the better it is for both.33 The Court further wrote, there is no question be fore of the wisdom or unwisdom of having the Bible in the schools, or of w ithdrawing it therefrom making it clear that, as early as 1869, the questions surrounding Bible reading in sc hools were already widely recognized.34 As a result of this type of religious fome nt, originating well before the 1870s and the federal Blaine Amendment, both the states and the federal government found itself grappling with religious controversy on a variety of issues and solution s were desperately being sought. One solution, which had both Protestant and Cat holic advocates, was a separation of government and religion.35 This separation was based upon protecti ng each group's ability to hold its own beliefs without interference from the government Thus, religious liberty was promoted by the disestablishment of religion from government.36 As Kurt Lash observes: 32 Minor 23 Ohio St. at 253; see e.g. Rob Boston, The Blaine Game, Church & State (Americans United for Separation of Church and State: September 2002) [online]. http://www.au.org/churchstate/cs9021.htm. 33 Id. at 248 (emphasis in original). 34 Id See also J. F. McClear, Church and State in the Modern Age: A Documentary History (Oxford University Press, 1995), p. 261 ( Minor reflects the growing attack on the wide-spr ead practice of Scripture readings in schools .). 35 Lash, supra note 29, at 1130. 36 Baugh, supra.
35 In this way, the Establishment Clause came to represent a personal freedom. Over time, popular interpretation of the Clause focused not on the principle of federalism, but on the principle of nonestablishment. By R econstruction, the common interpretation of the Establishment Clause and its "counterparts" in the st ates was that no government had any legitimate power over religion as reli gion: the state could neither establish a preferred religion, nor could it visit disadvantages or penalties upon disfavored religious beliefs. Citizens by right were immune from such religious-based persecutions.37 Likewise, in the early 1870s, Reverend Samuel T. Spear, a liberal Protestant minister argued that Protestant religious practices needed to be taken out of public education. His concern was that the precedent of Protestant practices in public education was being used by Roman Catholics to justify the creation of their own Catholic public schools, which already existed in a few urban school districts, where Cat holic voters constituted a majority.38 Spear lamented that most of his fellow Protestants did not yet a ppreciate what their own educational/religious preferences might later encourage by way of precedent.39 It should also be noted that the increasing a dvocacy for the principle of separation in the common schools was articulated by many as a religi ous imperative. As Felix Frankfurter noted in McCollum v. Board of Education Horace Mann was a devout Christian, and the deep religious feeling of James Madison is stamped upon the Remonstrance. The secular public school did not imply indifference to the basic role of religion in the life of the people, nor rejection of religious education as a means of foster ing it. The claims of religion were not minimized by refusing to make the public sc hools agencies for their assertion. The nonsectarian or secular public school was the mean s of reconciling freedom in general with religious freedom.40 37 Lash, supra note 29, at 1135. 38 McAfee supra at 3. 39 Id. 40 McCollum v. Board of Education 333 U.S. 203 at 216 (1948).
36 Thus, by the 1850s we see three issues criti cal for this study coming together in public debate. First, a general climate supporting the separation of church and state was emerging.41 Second, Americans were well aware that religious practices in the schools were a source of social and political conflict. And third, while there may have been a tendency to think of minority religions, Catholicism in particular, as sectarian, Americans also recognized that Protestant denominations were also Christian se cts; and therefore that constitutional provisions barring the flow of state funds in to sectarian institutions would affect Protestant practices in public schools and not just Catholic practices. In this light it seems hard to maintain that the later Blaine clauses were intended to be fundamenta lly, if not entirely, anti-Catholic when it was already understood that impeding the flow of public funds into sectarian schools would likely affect all schools, not just Catholic schools. Thomas Jeffersons wall of separation between church and state42 was finally becoming a reality. President Ulysses S. Grant provided critical supp ort for this move toward the elimination of Protestant practices in public schools in his famo us speech before a convention of the Society of the Army of Tennessee given in September of 1875. Grant proposed that the United States should, Encourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to the support of any sectarian schools. Resolve that neither the state nor the nation, nor both co mbined, shall support institu tions of learning other than those sufficient to afford to every child grow ing up in the land th e opportunity of a good 41 This will be discussed more extensively in Chapter IV in the context of No Compulsory Support clauses. 42 Thomas Jefferson Wall of Separation Letter to the Danbury Baptist Association, 1802 Library of Congress, Available at http://www.loc.gov/loc/lcib/9806/danpost.html. The critical paragraph of this letter reads, Believing with you that religion is a matter wh ich lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of governmen t reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whol e American people which decl ared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
37 common school education, unmixed with sectar ian, pagan or atheistical dogmas. Leave the matter of religion to the family altar, the church and the private school, supported entirely by private contributions. Keep the church and state forever separate.43 Continuing this call, three months later, in a December 1875 message to Congress, Grant again suggested a constitutional amendment" making it the duty of each of the several states to establish and forever maintain free public schools adequate to the education of all children[and] forbidding the teaching in said sc hools of religious, atheis tic or pagan tenets."44 In this speech as well as in the former, Gran t also called for a provi sion barring tax aid to religious schools. It is note worthy, however, that his call to remove religio us teaching and observance from public schools and to leave religious instruction to the family is, arguably, a call for religious neutrali ty. Taking up Grants proposal, former speaker of the House and presidential aspirant, Republican James G. Bl aine quickly introduced a proposed constitutional amendment to eliminate public support for religious education. Blaines proposed amendment stated: No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof, and no money raised by taxation in any state for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any re ligious sect, nor shall any money so raised or land so devoted be divided between religious sects or denominations.45 43 Rob Boston, The Blaine Game: Supporters Of Government Aid To Religious Schools Are Trying To Eliminate State Constitutional Provisions That Stand In Their Way. (Americans United for Separation of Church and State. September, 2002) [online]. http://www.au.org/site/News2?abbr =cs_&page=NewsArticle&id=5547&s ecurity=1001&news_iv_ctrl=1079. 44 Id. 45 H.R.J. Res. 1, 44th Cong., 1st Sess., 4 Cong. Rec. 205 (1875), quoted in Frank J. Conklin & James M. Vache, The Establishment Clause and the Free Exercise Clau se of the Washington Constitution--A Proposal to the Supreme Court, 8 U. Puget Sound L. Rev. 411, 431-33 (1985) at 431-32.
38 According to Ward McAfee, the fundamental probl em with Blaine's proposal was that it was written like a typical constitutional amendment and was too open to interpretation.46 For Blaines contemporaries, the key problem with the apparent flexibility of interpretation was that the original language was neutral and would fail to protect established, Protestant devotional practices in the public schools. Therefore, bot h Republicans and Democrats tried to make the proposed amendment more to their liking; but they sought radica lly different objectives with their proposed edits. As a result, Blaines proposed amendm ent exposed and activated numerous major cleavages in Nineteenth Century American polit ics and society. Catholic versus Protestant tensions, Federal versus State i ssues, and nativist versus immigr ant hostility all overlapped and reinforced each other along with dozens of other curren ts including North vers us South issues the aftermath of the Civil War and the failure of R econstruction, the darkest page in the saga of American history.47 But the end of the Civil War a nd Reconstruction also engendered a national state possessing vastly expanded authority and a new set of purposes Originating in wartime exigencies, the activist state (paralleled at the local level both North and South) came to embody the reforming impulse deeply rooted in postwar politics.48 Part of that reforming impulse was public education. The ongoing debate regarding education funding split the two po litical parties. Republicans called for a universal system of public schools with a federal mandate on the states. 46 The Pew Forum on Religion & Public Life, Separatio n of Church and States: An Examination of State Constitutional Limits on Government Funding for Religious Institutions, Session 1. (2003) [online]. http://pewforum.org/events/index.php?EventID=45. 47 This was the interpretation of the Dunni ng School, identified with William Dunning, Reconstruction: Political and Economic, 1865-1877 (New York, 1907) [online]. http://www.questia.com/PM.qst?a=o&d=16224153; See e.g. Walter Fleming, The Sequel of Appomattox (Yale Univ. Press, 1919), Claude Bowers, The Tragic Era (Simon Publications, 1929), E. Merton Coulter, The South During Reconstruction, 1865-1877 (LSU Press, 1947). 48 Eric Foner, Reconstruction: Americas Un finished Revolution 1863-1877 (Harper and Row, 1988), p. xxvi.
39 Democrats resisted, asserting the concept of st ates rights. "Part of the drive for Blaine amendments came from Republicans, who wanted to ensure that there wo uld be universal, free and non-sectarian public education," according to Green. "To try to tar the Blaine amendment solely as anti-Catholic is short-si ghted. To be sure, there was some of that in the debate, but that was not the only factor."49 To what extent was it recognized that barri ng state funding for secta rian education had the potential to change the Protes tant nature of the public school s? A close examination of the Massachusetts debates over school funding makes it clear that this pos sibility was widely understood. Massachusetts is was the firs t state to make public edu cation a government priority. Beginning with the General School Act of 11 N ovember 1647, more popularly known as the Ye Olde Deluder Satan Act,50 Massachusetts required towns with fifty or more families to establish a grammar school and towns with one hundred families or more, to establish a grammar school that will prepare its students for the univers ity. The purpose of this act was fundamentally religious: to equip all people to be able to read the Bi ble. By 1780, the Massachusetts constitution provided for fundi ng education of the public.51 However, by the 1850s, Irish Catholic immigration was raisi ng questions about the old system including whether or not state 49 Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist 38 (1992). 50 Records of the General Court of Massachusetts Bay, 11 November l647. Available online at http://en.wikipedia.org/wiki/Ye_olde_deluder_satan_act. 51 Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (University of Massachusetts Press, 1978), p 193.
40 funds could support Catholic parochial schools and whether readings from the King James version of the Bible, objected to by Catholics, would be continued.52 In 1853 Massachusetts convened a Constitutional Convention. A number of issues were debated in this convention; however, it must be not ed that twenty years before the Blaine attempt to amend the federal Constitution, two of the critic al issues debated at this convention included the definition of sectarian sc hools and whether or not state funding should support sectarian schools.53 The Massachusetts delegates who supported the practice of funding sectarian schools argued that a provision forbiddi ng such funding would undermine the purpose of education to inculcate moral and civic values. A Mr. Keyes went so far as to wonder if the effort to bar funding was aimed at Catholics or not, but went on to argue that the re jection of state funding for sectarian schools was equal to closing down all schools because there were no schools that did not have one denominational connection or another.54 A Mr. Upham went even farther, arguing that to prevent support for sectarian schools is to prevent the reading of the Protestant Bible and the saying of prayers.55 At the same time, a relatively new and interesting concept was introduced into the debate. A supporter of the proposed provision, Mr. Blag den of Boston, argued that the resolution was designed to benefit the public common schools, where the childre n of all religious sects can meet together and where the modified influe nce which arises from a common education can 52 Elwood Cubberly, A Brief History of Education: A History of the Practice and Progress and Organization of Education (Cambridge, Mass: Houghton-Mifflin, 1922), p. 382-384. 53 Oscar Handlin, and Mary Handlin, eds. The Popular Sources of Political Authority. Documents on the Massachusetts Constitution of 1780, Vol. II (Belknap Press of Harvard University Press, 1966), pp. 544-545; cited in Scalia, supra p. 39. 54 Id 55 Id.
41 reach all children 56 Likewise, another supporter argued th at public schools are intended to bring students together on common ground, as children of the stat e, to be educated together in mutual respect, forbearance and good will.57 Thus there was widespread recognition that the pervasive Protestantism of the common schools made them arguably sectarian, despit e the efforts by some to narrowly define sectarian to mean only those schools that accepted applicants ba sed on common beliefs, a characteristic of Catholic schools.58 Over time, the broader definition of sectarian would prevail, serving as a rallying point for thos e who opposed the provision barring state funding of sectarian schools. So Grants suggestion, subsequently adopted by Blaine, while undoubtedly attractive to anti-Catholic elements, was also an attractive pr oposal to a wide variety of reformers for other political and policy reasons; and it drew on a two decade tradition of debates regarding public school funding and a recognition that sectarian did not m ean only Catholic and that proposals such as Grants would affect Protesta nt practices in schools and not merely prevent Catholic practices. Blaine's original proposal stated: No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof, and no money raised by taxation in any state for the support of public school s, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor 56 Id. p. 40. 57 Id. 58 Scalia supra, p. 38.
42 shall any money so raised or land so devot ed be divided between religious sects or denominations.59 Grants neutral formulation is evident in the language of the original Blaine proposal, and the proposed amendment passed the House, with an addendum specifying that it did not vest, enlarge, or diminish legislative power in the Congress,60 In the Senate, however, some senators expressed significant concerns about the la nguage and the scope of the amendment. For example, Senator Frelinghuysen of Ne w Jersey supported the amendment for its ability to do away with religious qualification tests that still exis ted in some states arguing, Thus the article prohibits the States, for the firs t time, from the establishment of religion, from prohibiting its free exercise, a nd from making any religious te st a qualification to office.61 Later in the debate, Senator Kernan of New York essent ially replied that states would eventually see the light without the coercion of the amendment, That provision [the proposed amendment] ha s my most hearty commendation; but for all that it is not necessary to put it in the Federal Constitution. That matter was discussed in the convention that made the Constitution, and it was not thought wise to put in any such provision, but to leave it to the States. There is a provision in the constitution [of New Hampshire] that no one can be elected governor unless he is of the Protestant religion, and so as to members of the Legislature of the State. But I am willing to trust that to the people of that St ate, believing that very soon in this age of ours and in this country of ours they will adopt the liberal provisions which are found in the constitutions of the other States on the subject of the sacred rights of conscience.62 59 H.R.J. Res. 1, 44th Cong., 1st Sess., 4 Cong. Rec. 205 (1875), cited in Conklin & Vache, supra, 431-32. 60 See 4 Cong. Rec. 5189-92 (1876); See e.g. Jay S. Bybee and David W. Newton, Of Orphans and Vouchers: Nevada's Little Blaine Amendment and the Future of Religious Participati on in Public Programs, 2 Nev. L.J. 551, 574 (2002) note 9, at 557 & n.32; Green, supra note 34, at 58-59. 61 4 Cong. Rec. 5261; cited in Governor Fob James' 199 8 Petition to the U.S. Supreme Court Rejecting The Courts Authority In Church-State Cases, (1997) [online] http://www.fobjames.com/governor_ fob_james_supreme_court_petition.htm; hereafter known as James 62 4 Cong. Rec. 5581; cited in James.
43 Senator Bogy of Missouri, an opponent of the amendment, raised the issues of Federalism and the rights and power s of the states arguing that, [A]mong the most sacred of these rights, lying at the supra very foundation of all liberty, was that of freedom of conscience a nd the right to worship God according to the dictates of each one's individual conviction. That was left to the States, and was not placed in the hands or under the control of the Federal Government. The attempt here to exercise this power takes from the States that right and gives it to the Federal Government Mr. President, the safety of this Government is in the denial of all such powers to the Federal Government. Keep it wh ere the fathers placed it, in the States, and maintain it there.63 But Senator Morton of Indiana, a supporter of the amendment, sugge sted that the states may not necessarily be trusted to do the right thing asserting, What guarantee have we in the States? A majo rity of the people of a State can change the Constitution of that State and according to the doctrines we have heard here tonight, doctrines I think that will startl e this nation, we are told that the States must be left free, if they desire to do so, to establish a c hurch, to establish deno minational schools, and maintain them at public expense. What is the reason the States cannot do it? He will say that in most of the constitutions ther e are provisions preventi ng them; but my friend knows very well that the majority who ma de those constitutions can unmake them.64 Out of these debates the Senate subsequently proposed a stronger version of the Blaine Amendment that would have prohibited any pub lic property, public revenue or loan of credit from being appropriated to or made or used for the support of any school or other institution under the control of any religious or anti-reli gious sect, organization, or denomination or where the creed or tenets of such groups were taught.65 The final version of the amendment read, supra No state shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall be required as a qualification to any 63 4 Cong. Rec. 5591, cited in James. 64 4 Cong. Rec. 5591-5592, cited in James. 65 See 4 Cong. Rec. 5453 (1876); Bybee and Newton, supra note 9, at 558 & n.37 (discussing the text of the Senate proposal); see John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev 279, 337-39 (2001), note 15, at 302 (stating that the [Senate's] final version laboriously attempted to close every possible loophole through which public money might flow to religious schools).
44 office or public trust under any State. No public property and no public revenue, nor any loan of credit by or under the authority of the United Stat es, or any State, Territory, District, or municipal corpor ation, shall be appropriated to or made or used for the support of any school, educational or other in stitution under the cont rol of any religious or anti-religious sect, organization, or de nomination, or wherein particular creeds or tenets shall be taught. And no particular creeds or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit; and no appropriation or loan of cred it shall be made to any religi ous or anti-religious sect, organization, or denomination or to promote its interests or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, a nd it shall not have the effect to impair the rights of property already vested.66 Most notably, the Senate also a ltered the last line stating th at the amendment shall not be construed to prohibit the reading of the Bible in any school or instituti on. This last provision was added at the behest of the National Reform Association, a Chri stian Coalition-style organization active during the post-Civil War peri od. It probably sealed the measures defeat.67 The Senate version failed to garner the require d two-thirds majority by a mere four votes twenty-eight to sixteen (with twenty-seven member s not present, including Blaine himself) and failed.68 The language of Blaines original propos ed amendment is, to the modern reader, religiously neutral and the amended language is pa tently not neutral. However, opponents of the Blaine Amendments argue that the use of the term sectarian in both versions was a code word for anti-Catholic. For example, in Mitchell v. Helms Justice Thomas plurality opinion asserts, It was an open secret that sectarian was code for Catholic.69 At the same time, other 66 See 4 Cong. Rec. 5453 (1876). 67 Bouton, op. cit. 68 4 Cong. Rec. 5595 (1876). 69 Mitchell v. Helms 530 U.S. 793, 828 (2000) (plurality opinion). See e.g. Green, s upra at 41-43 (1992); Zelman v. Simmons-Harris 536 U.S. 639, 721 (2002) (Breyer, J., dissenting) (noting the purpose of federal and state Blaine amendment movements was to make certain that government would not help pay for sectarian (i.e. Catholic) schooling for children); Douglas Laycock, The U nderlying Unity of Separation and Neutrality, 46 Emory L. J. 43, 50 (1997) ([N]ineteenth century opposition to funding religious schools drew heavily on anti-Catholicism); Ira
45 scholars argue that the historical situation was not that simple. For example, Douglas Laycock, a Blaine opponent, admits that in the Nineteenth Century Blaine de bates, there were legitimate arguments to be made on both sides.70 Thus, at least for some Ni neteenth Century public policy leaders, the desire to prevent the flow of tax dollars into religious institutions was not necessarily fundamentally driven by anti-Catholic intent. While anti-Catholic elements undoubtedly su pported the amendment to ensure no state funds would go to Catholic schools, Blaine hims elf denied any anti-Catholic motivations and explained in an open letter that his proposal wa s merely designed to suppress religious conflict by definitively settling the school funding controversy.71 In fact, Blaines own mother was Catholic and whose daughters went to Catholic boarding schools.72 It should also be pointed out that the Catholic World praised Grants propose d amendment for seeking to take the religious issue out of politics.73 Furthermore, while anti-Catholic sentimen t in the 1830s through the 1850s was a potent force almost exclusively articu lated by nativist Protestants, the 1860s and 1870s saw the growth of a new religious ideology in the emergence of s ecularists also known then as Liberals. This C. Lupu, The Increasingly Anachronistic Case Against School Vouchers, 13 Notre Dame J. L. Ethics & Pub. Policy 375, 386 (1999) (From the advent of publicly suppo rted, compulsory education until very recently, aid to sectarian schools primarily meant aid to Catholic schools.). 70 Laycock, supra at 50. See also Charles Glenn, Jr. The Myth of the Common School (University of Massachusetts Press, 1988), p. 253 (mentioning the nineteenth century recognition that Blaines amendment would require the States to set up public schools devoid of religious practices). 71 Green supra, note 34, at 49-50, 54 & n.103. 72 Duncan, supra 73 People for the American Way, The Blaine Diversion: The Voucher Debates Red Herring, [online]. http://www.pfaw.org/pfaw/gener al/default.aspx?oid=8024.
46 amorphous group united a wide variety of liberal protestant, atheists, theists, and spiritualists in a common resentment and mistrust of Ch ristianity's influence on government.74 The secularists are best exemplified by th e National Liberal League founded by Francis Ellingwood Abbot for the purpose of supporting the absolute separation of church and state toward which he advocated a wide vari ety of secularizing counter-proposals.75 One of his motivations was an unsuccessful effort by the Prot estant National Reform Association to pass a Christian Amendment to the U.S. Constitution.76 Abbot also distilled Liberal philosophy into the 1872 publication, The Demands of Liberalism, which accurately predicted many of the most difficult church-state issues that the Suprem e Court would face in the Twentieth Century, including church tax exemptions, chaplains in the legislature, Sunday closing laws, and Bible reading in public schools.77 Significantly, Abbot also insist ed that both the United States Constitution as well as state constitutions shoul d assert that, all public appropriations for sectarian educational and charitable institutions shall cease; that no privilege or advantage shall be conceded to Christianity or any other special religion and that our entire political system shall be founded and administ ered on a purely secular basis.78 Secularist support for blocking the use of tax funds for all religious purposes, Protestant and Catholic alike, as well as Abbots use of sectarian in its widest sense of religious and not me rely as anti-Catholic illustrates the diversity of opinion and advocacy and mitigates against simplistic assumptions that anti-Catholicism as the only motive for the federal Blaine Amendment. 74 Philip Hamburger, Separation of Church and State (Harvard University Press, 2002). p. 288-90. 75 Id at 290-93. 76 Steven Keith Green, The National Reform Association and the Religious Amendments to the Constitution, 18641876 (University of North Carolina at Chapel Hill, 1987) p. 1-2. 77 See id. at 294-95 n.21. 78 Id.
47 Despite the failure of the Blaine Amendmen t, the issues meant to be addressed by the failed amendment did not, however, go away, and quickly returned when western territories sought admission to the Union as states requ iring both houses of Congress to approve or disapprove the new constitutions. While the two part ies had not been able to agree on the federal Blaine amendment, they did agree to require that states admitted to the union after 1876 were to put some provision in its constitution stating that it would maintain a public school system "free from sectarian control. For example, Congress required Blaine language in the enabling acts for North Dakota, Montana, S outh Dakota, and Washington;79 Idaho;80 and Arizona and New Mexico.81 Specifically, the 1889 Enabling Act for No rth Dakota, South Dakota, Montana and Washington stipulated that those states' cons titutional conventions provide, by ordinances irrevocable without the consent of the United States and the people of said States for the establishment and maintenance of systems of public schools, which shal l be open to all the children of said States, and free from sectarian control.82 The same requirement was contained in the Enabling Acts author izing the statehood of Utah,83 Oklahoma,84 New Mexico,85 and Arizona.86 Likewise, Wyoming never had an enabli ng act prior to admission but the Act of Admission itself asserted that T he schools, colleges, and universi ties provided for in this act 79 Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889). 80 Act of July 3, 1890, 26 Stat. 215 Sec. 8, ch. 656 (1890). 81 Act of June 20, 1910, 36 Stat. 557 26 (1910). 82 Enabling Act, 25 Stat. 676, February 22, 1889, as Amended. See McCollum v. Bd. of Educ ., 333 U.S. 203, 220 n.9 (1948) (Frankfurter, J., concurring). 83 Act of July 16, 1894, ch. 138, 28 Statutes at Large 107. 84 Act of June 16, 1906, 34 Stat. at L. 267, chap. 3335. 85 Act of June 20, 1910, 36 Stat. at L. 557, chap. 310. 86 June 20, 1910, c. 310, 36 US Stat. 557, 5689.
48 shall forever remain under exclusive control of said state, and no part of the proceeds arising from the sale or disposal of any lands herein granted for educational purposes shall be used for the support of any sectarian or denomi national school, college, or university87 and the state incorporated this prohibition into its initial Constitution.88 Advocates for the elimination of Blaine Amendments often point out that Congress passed these enabling acts for new states requiring that they include language almost identical to the failed federal Blaine Amendment.89 In fact, the language actua lly utilized in those state constitutions is consistently closer to the original neutral language.90 Thus, it is apparent that th ere were many purposes behind th ese conflicting versions of the Blaine Amendment. Likewise, it seems clear that while many Ninete enth Century supporters of the Blaine Amendment were undoubtedly motivat ed by anti-Catholic att itudes, others could easily have been convinced by the more neutral policy approach advocated by the President of the United States, and still others were undoubtedly motivated by the growing support for entirely separating church and state. This is impor tant because it raises questions about the extent to which anti-Catholic attitudes influenced the ev entual fate of the Blaine Amendments at the federal and state levels. Despite controversial origins, these state cons titutional clause s have largely languished in obscurity until recently when they have appear ed before the U.S. Supreme Court on three 87 Act of July 10, 1890, Stat. at L. 222, chap. 664. 88 Wyo. Const. of 1889, Ordinances, 5. 89 John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279 (2001), n. 1, at 305. 90 This will be detailed in Chapter 4.
49 separate occasions in four years;91 in Mitchell v. Helms,92 Zelman v. Simmons-Harris ,93 and Locke v. Davey .94 In the first two of these cases differ ent Justices raised questions about the relevant state Blaine Amendments, but the Blaine issues were largely tangential to the case and were thus not properly before the Court. In Locke however, the Washington Blaine Amendment appeared to be at the heart of the case and th erefore played a prominent of both sides in the dispute; and despite previously expressed judicial hos tility, survived the challenge a surprising ruling with profound implications for state legislatures, courts and educational policy makers.. That the so-called Blaine amendments ar e suddenly before the Supreme Court is no accident and reflects the combination of incr easing legal challenges to long-established precedent as Supreme Court appointments have taken the Court in a much more conservative direction, plus a systematic rein terpretation of church-state rela tions reflected in a lowering of the Constitutional barriers affecting the flow of tax dollars into religious institutions, as well as a systematic attempt to place the Blaine Amendmen ts before the Supreme Court in the hope that they would be ruled unconstitutional, opening the doors for dramatically expanded flow of state tax dollars into religious institutions.95 Likewise, elements that favor an increasing role for the Judeo-Christian tradition in public life continua lly agitate for lowering the wall of federal and 91 Blaine Amendments have been before the Court previously but typically were either incidental to the case or were not at issue due to previously more restrictive fe deral limits on the flow of tax dollars into religious institutions. See e.g. Abington v. Shempp 374 U.S. 203 (1963), fn 22. 92 Op. cit. 93 Op. cit. 94 Op. cit. 95 See e.g. Brandi Richardson, Eradicating Blaine's Leg acy of Hate: Removing the Barrier to State Funding of Religious Education, 52 Cath. U.L. Rev. 1041 (2003) (The language of these amendments varies throughout the United States, but their primary function is to block state funding of religious education.).
50 state separation.96 Mitchell and Zelman are discussed to illustrate the changing nature of Court jurisprudence as it has moved away from the Lemon test and religious separatism opening the doors to new legal challenges that implicate the Blaine Amendments. Mitchell v. Helms In Mitche ll Blaine Amendments appeared as marginal obiter dictum At the same time, it is clear that at least some members of the Court have accepted the arguments of Blaine opponents that these clauses are unconstitutional ex ercises in anti-Catholic animus. Because as many as thirty-three state constitutions containe d the Blaine clauses, each of which had the potential to affect decisions ma de regarding school vouchers a nd other state educational funding programs, not to mention faith-based initiatives, the implications of a decision finding Blaine Amendments to be unconstitutional could dram atically reshape educational funding throughout the nation. Mitchell v. Helms was the culmination of fifteen years of litigation aris ing in Louisiana from a Chapter 2 program of federal aid to st ate and local agencies which lend materials and equipment to public and private schools.97 The Louisiana program was guided by two key principles: 1) allocation of res ources was based solely on the nu mber of children served in a school and, 2) the materials to be loaned must be secular, neutral, and non-ideological. 96 See e.g. Francis J. Beckwith, Gimme That Ol' Time Separation: A Review Essay Philip Hamburger, Separation of Church and State, 8 Chap. L. Rev. 309 (2005) (reviewing Hamburger, supra: [A] government within the United States may pass laws providing public approval and susten ance to moral understandings that are consistent with, congenial to, or have their grounding in certain religi ous traditions, and which, simultaneously, are thought to advance the public good without offending the First Amendment religion clauses.); see also McCreary County, Ky v. the American Civil Liberties Union of Kentucky 354 F.3d 438, Justice Antonin Scalia (dissenting) (Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion it is entirely clear from our Nations histor ical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.) 97 Mitchell v. Helms 530 U.S. 793, 2000. Available at http://supc t.law.cornell.edu/supct/html/98-1648.ZS.html.
51 Nevertheless, the program was challenged as an Establishment Clause violation in that it provided support to religious, prim arily Catholic, institutions. The district court determined the program to be unconstitutional arguing that the program was a violation of Lemon Test because the Catholic school s receiving aid were pervasively sectarian. In making this determination, the Chief Judge of the District Court relied primarily on Meek v. Pittenger98and Wolman v. Walter.99 Shortly after issuing an order permanently ex cluding pervasively sectarian schools in the parish from receiving any Chapter 2 materials or equipment, he retired. Another judge then reversed that order finding no violation and relying on several significan t changes in the legal landscape over the previous seven years.100 The court asserted that case law revived the principle of Board of Education v. Allen101 and Everson v. Board of Education102 that state benefits provided to all citizens without regard to religion are constitutional.103 The case was then appealed to the Fifth Circuit where the materials loan program was also found to be unconstitutional. But othe r Court rulings since 1997 changed precedent.104 Regardless of these changes, the Fifth Circuit ruled that while Agostini had rejected the rule that, all government aid that directly assists the educational function of religious schools is 98 Meek v. Pittenger, 421 U.S. 349 (1975). 99 Wolman v. Walter 433 U.S. 229 (1977). 100 Helms v. Cody, App. to Pet. for Cert. 79A (1997), WL 35283 (1997). 101 Board of Educ. of Central School Dist. No. 1 v. Allen 392 U.S. 236 (1968). 102 Everson v. Board of Educ. of Ewing, 330 U.S. 1 (1947). 103 Mitchell v. Helms 1997, 46 F3d at 1465 (1997). 104 See e.g. Agostini v. Felton 521 U.S. 203 (1997) (allowi ng Title I teachers to teach remedial classes in private schools, including religious schools. This overruled Aguilar v. Felton (473 U.S. 402 (1985) and partially overruled S chool Dist. of Grand Rapids v. Ball (473 U.S. 373) which dealt with a shared time program.
52 invalid,105 nonetheless Agostini had not overruled Meek and Wolman nor had it rejected the distinction between textbooks and other in-k ind aid. Thus, the Fift h Circuit ruled that Meek and Wolman still applied and the Chapte r 2 aid was unconstitutional. Mitchell was then appealed to the U.S. Supreme Court which overruled the two lower courts and held the aid program to be consti tutional. The Supreme Court asserted that the Lemon test, had been redefined in Agostini to ask, 1) does a program result in governmental indoctrination? 2) does it define program recipients by reference to religion? and, 3) does in create excessive entanglement?106 Furthermore, the Court limite d the factors defining excessive entanglement. As a result of these changes, the Court ruled that the Chapter 2 progr am, in light of more recent case law does not result in governmental i ndoctrination, define its recipients by reference to religion, or create an excessive entanglemen t. Nor can this carefu lly constrained program reasonably be viewed as an endorsement of religion.107 Therefore, the Court declared, [t]o the extent that Meek and Wolman conflict with the foregoing analysis, they are overruled.108 According to the Court, the key question in Mitchell brought forward from Agostini is whether any religious indoctrinat ion that occurs in those schools could reasonably be attributed to governmental action.109 In Mitchell, therefore, the key principles for constitutionality were 105 Agostini, 521 U.S. At 237. 106 521 U.S. At 237. 107 Mitchell supra at 28-29. 108 Id at p. 37-38. 109 See Agostini at 266 quoting Zobrest 509 U.S. at 10; also Rosenberger v. University of Virginia 515 US 819, at 841-842 (1995); Witters v. Washington Dept. of Servs. for Blind 474 US 481, 488-489 (1986); Mueller v. Allen 463 US 388, 397 (1983); and Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos 483 US 327, 337 (1987); For a law to have forbidden effects under Lemon it must be fair to say that the government itself has advanced religion through its own activities and influence.
53 neutrality and private choice: In distinguishing between indoctrination that is attributable to the state and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion.110 Furthermore, private choices helped ensure neutrality, and neutrality and private choices together eliminated any possi ble attribution to the government.111 Likewise, Any aid that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients, Wash ingtons program is made available generally without regard to the sectarian-nonsectarian or publicnonpublic nature of the institution benefited and creates no financial incentive for students to undertake sectaria n education. [T]he fact th at aid goes to individuals means that the decision to support religious ed ucation is made by the individual, not by the state.112 The principles of neutrality and pr ivate choice, and their relationship to each other, were prominent not only in Agostini but also in Zobrest Witters, and Mueller.113 Mitchell also rejected the issue of divertability, th e concern that tax dollars that flow into religious organizations, even if not directly spent for religious purpos es, would free up other funds for those religious purposes, thus pr oviding an indirect aid to religion: So long as the governmental aid is not itsel f unsuitable for use in the public schools because of religious content114 and eligibility for aid is determined in a constitutionally permissible manner, any us e of that aid to in doctrinate cannot be attributed to the government and is this not of constitutional concern.115 Quite clearly, then, we did not th ink that the use of government al aid to further religious indoctrination by the government or that such use of aid created any improper incentives.116 The issue is not divertability of aid but rather whether the aid itself 110 Mitchell, supra at 9. 111 Id at 10. cf. Witters v. Washington Dept. of Servs. for Blind 474 US 481 (1986). 112 Id at 12-13. 113 Id at 11, citing Agostini supra at 225-226, 228, 230-232. 114 Board of Education of Central School District No. 1 v. Allen 392 US 236, at 245 (1968). 115 Mitchell at 21. 116 Id at 22.
54 has impermissible content. Where the aid woul d be suitable for use in a public school, it is also suitable for use in any privat e school. Similarly, the prohibition against the government providing impermissible content resolves the Establishment Clause concerns that exist, if aid is ac tually diverted to religious uses.117 Likewise, the Court stated, [W]e have not a ccepted the recurrent argu ment that all aid is forbidden because aid to one aspect of an inst itution frees it to spend its other resources on religious ends.118 Finally, a key component of the plaintiffs argument that the aid program should be found unconstitutional was the clause in the Louisiana Constitution forbidding the use of tax funds in religious institutions. According to the pluralit y opinion of Justice Thomas, in which Thomas, Rehnquist, Scalia, and Kennedy joined hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow.119 Furthermore, Thomas asserted, [O]pposition to sectarian schools acquired prominence in the 1870s with Congresss consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Ca tholic Church and to Catholics in general, and it was an open secret that sectarian was code for Catholic.120 Finally, Thomas asserted In short, nothing in th e Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid progr ams, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.121 The four justices who shared in these Blaine Amendment comments were joined in a concurring opinion by Justices OConnor and Breyer, thus Mitchell became law; but because the Blaine comments themselves are the opinion of a minority of the Court, they have no binding 117 Id at 23. 118 Id at 26; citing Committee for Public Education v. Regan 444 U.S. 646, at 658 (1980) quoting Hunt v. McNair 413 U.S. 734, 743 (1973). 119 Id at 30; citing Chicago v. Morales 527 U.S. 41, 53-54, n20 (1999). 120 Id at 30; See also Greene, supra p. 23. 121 Id at 31.
55 force of law or precedent. However, it is clear th at Justice Thomas at least, has been convinced by anti-Blaine advocates that the Blaine Amendmen ts are deeply, if not entirely rooted in antiCatholic attitudes and theref ore are unconstitutional. With Mitchell, then, Blaine Amendment supporters and opponents were placed on notice that at least some members of the Court were ap parently open to a Consti tutional challenge that would place these clauses on the docket. As observe d earlier, this had vast implications for educational funding policy as well as other state funding programs. Zelman v. Simmons-Harris In Zelman v. Simmons-Harris ,122 still more Justices join ed the growing chorus of apparent Blaine opponents; this de spite the fact that the Ohio Blaine Amendment issue had been rendered moot in by the Ohio Supreme Court which had ruled that the Ohio Blaine clause did not affect the Pilot Project Scholarship Program. Th erefore, the Ohio Blaine Amendment was not before the U.S. Court for consideration. Regardless, in Zelman Blaine Amendments move a step closer to the heart of Supreme Court jurisprudence. On June 28, 1995, the Ohio legislature adopted House Bill 117, the biennial operating appropriations bill for fiscal years 1996 and 1997. Among the numerous provisions of that bill were those establishing the Pilo t Project Scholarship Program.123 The school voucher program required the State Superintendent of Public Instruction to prov ide scholarships to students residing only within the Clev eland City School District.124 Students could use those scholarships to attend a registered private school or a public school in an adjacent school district. These scholarships were made available in the form of checks pa id either to the students parents, if the 122 Zelman v. Simmons-Harris, 536 U.S. 639 (2002). 123 Ohio Rev. Code 3313.974 3313.979 [online] http://orc.avv.com/title-33/sec-3313/sec-3313.974.htm. 124 Ohio R.C. 3313.975(A).
56 child would be attending a private school, or to the adjacent public sc hool district. In 1996 the program was challenged on the grounds that studen t use of vouchers at re ligious institutions violated the Establishment Clause of the First Amendment to the United States Constitution as well as various clauses of the Ohio Cons titution including the Establishment Clause,125 the School Funds Clause,126 and the Uniformity Clause.127 In May 1999, the Ohio Supreme Court ruled the program unconstitutional and this rulin g was appealed to the United States Supreme Court. In its ruling, the Ohio Court determined that the Cleveland v oucher program did not violate the Establishment Clause of the First Amendment. They noted that in Cantwell v. Connecticut (1940)128 the U.S. Supreme Court stated that [t]he Fourteen th Amendment has rendered the legislatures of the state as incompetent as Congress to enact such laws, therefore that the compelling authority for Ohio became Lemon v. Kurtzman The Court further observed that while the Lemon Test has come under recent reinterpreta tion and that its validity had been challenged;129 Lemon remains the law of the land, and we are constrained to apply it.130 It then determined that on al l three points of the Lemon test, the Ohio program passed muster. The case was then appealed to the United States Supreme Court. 125 Ohio Const. Art. I, 7. 126 Ohio Const. Art. VI, Sec. 2. 127 Ohio Const. Art. VII, Sec. 26. 128 Cantwell v. Connecticut 310 U.S. 296 (1940). 129 Citing Lambs Chapel v. Center Moriches Union Free School District 508 U.S. 384 (1993); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter 492 U.S. 573 (1989); and Westside Community Schools Board of Education v. Mergens 496 U.S. 226 (1990). 130 Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000), p. 6.
57 The Supreme Court also uphe ld the Ohio Program in Zelman v. Simmons-Harris .131 The Court ruled first that because the program was enacted for the valid s ecular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the key question at issue was whether the program nonethel ess has the forbidden effect of advancing or inhibiting religion.132 The decision of the Court asserted that the Courts jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it were neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of genuine and independent private choice.133 Under such a program, government aid reaches religious institutions only by way of the private c hoices of numerous individual recipients.134 Therefore, the incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipien ts not the government,135 whose role ends with the disbursement of benefits. Second, the Court argued that the Ohio pr ogram was one of true private choice, consistent with the Mueller line of cases and thus constitutional. It is neutral in all respects toward religion,136 and is part of Ohios general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without refe rence to religion and permits 131 Zelman v. Simmons-Harris 536 U.S. 639 (2002). 132 See Agostini v. Felton, 521 U.S. 203, 222223. 133 See, e.g., Mueller v. Allen, 463 U.S. 388. 134Zelman at 10; see Agostini supra at 226. 135 Zelman at 10. 136 Id at 11.
58 participation of all district schoolsreligious or nonreligiousand adjacent public schools.137 The only preference in the program is for low-income families, who receive greater assistance and have priority for admission.138 Despite viewing data regarding voucher choices from Cleveland presented by the plaintiffs suggesting that the pr ogram created a financial incentiv e to attend religious schools, the Court rejected this argument and instead asserted that the program creates financial disincentives: Private schools rece ive only half the government as sistance given to community schools and one-third that give n to magnet schools, and adjacen t public schools would receive two to three times that given to private schools.139 Families too have a financial disincentive, for they have to co-pay a porti on of private school tuition, but pay nothing at a community, magnet, or traditional public school.140 The Court argued that no reasonable observer would think that such a neutral private choi ce program carries with it th e imprimatur of government endorsement.141 Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select se cular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a sc holarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school.142 137 Id 138 Id. 139 Id at 11-12. 140 Id at 12. 141 Id at 8. 142 Id. at 12.
59 According to the Court, the Establishment Cl ause question of whether Ohio is coercing parents into sending their chil dren to religious schools must be answered by evaluating all options Ohio provides Cleveland sc hoolchildren, only one of which is to obtain a scholarship and then choose a religious school.143 Clevelands preponderance of religiously affiliated schools did not result from the program, but is a phenomenon common to many Americ an cities. Eighty-two percent of Clevelands private schools are religious as are 81 percent of Ohios private schools. To attribute constitutional significance to the 82 percent figure would lead to the absurd result that a neutral school-choice progra m might be permissible in parts of Ohio where the percentage is lower, but not in Cleveland, where Ohio ha s deemed such programs most sorely needed.144 Likewise, an identical private choice program might be Constitutional only in states with a lower percentage of religious private schools.145 Respondents additional ar gument that constitutional significance should be attached to the fact that 96 per cent of the scholarship recipients have enrolled in religious schools was flatly rejected in Mueller:146 The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schoo ls are religious, or most recipien ts choose to use the aid at a religious school.147 Finally, the Court ruled that cont rary to respondents argument, Committee for Public Education & Religious Liberty v. Nyquist148-a case that expressly reserved judgment on the sort 143 Id. at 14. 144 Id. at 15-16. 145 Id. at 16. 146 Id. 147 Id. at 17. 148 413 U.S. 756.
60 of program challenged in Zelman -does not govern neutral educa tional assistance programs that offer aid directly to a broad class of indi viduals defined without regard to religion.149 As in Mitchell Justice Breyer recorded his dissen t citing the histor y of the Blaine Amendments. He argued that in deciding the Tw entieth Century Establishment Clause cases, the Court recognized that earlier in United States history, so ciety perceived a less clear-cut church/state separation compatible with social tranquility.150 As a result, Protestant devotional practices were common: students recited Protestant prayers, read the King James version of the Bible, and learne d Protestant religious ideals.151 Those practices undoubtedly discriminated against members of minority religions, but given the small number of such individuals, this did not thr eaten serious social conflict.152 In the Twentieth Century however, the Court recognized that immigra tion and growth had changed the situation.153 As their numbers increased, members of non-Protestant religions, particularly the Catholics, began to resist the Protestant dominati on of the public schools.154 Scholars report that by the mid-Ni neteenth Century religious conf lict over matters such as Bible reading grew intense, as Catholics resisted and Protestants fought back to preserve their domination.155 Fearing Catholic domination, native Prot estant mobs terrorized Catholics.156 Breyer argued that The Twentieth Century Cour t was aware that political efforts to right the wrong of discrimination against religious minorit ies in primary education had failed; in fact 149 Id. at 20. 150 Breyer, dissent at 4. 151 See, e.g. D. Tyack, Onward Christian Soldiers: Religion in the American Common School, in History and Education P. Nash ed., (Random House, 1970), p. 217. 152 See Barry Kosmin & Seymore Lachman, One Nation Under God: Religion in Contemporary American Society (Three Rivers Press, 1994), p. 45. 153 Citing John Jeffries & James Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 299-300 (Nov. 2001) (discussing the increasing number of Catholics in America); and Kosmin & Lachman, supra, at 45 (discussing increasing nu mbers of Jewish immigrants). 154 Breyer supra at 4-5. 155 Id at 5; citing Jeffries, supra at 300. 156 Id at 5; citing Hamburger, supra at 219 (2002); See e.g. Jeffries supra.
61 they had exacerbated religious conflict.157 Catholics demanded equal government support for the education of their children to be taught in private, Catholic schools. The Protestant response according to Breyer, was that public schools must be nonsectarian (which was usually understood to allow Bible reading and other Protestant observan ces) and public money must not support sectarian schools (which in practical terms meant Catholic).158 This policy then played a significant role in the Blaine moveme nt that sought to ensure that government would not help pay for sectarian ( i.e. Catholic) schooling for children.159 The Supreme Court upheld the Ohio scholar ship program; but once again the Blaine movement was cited on both sides of the decision. Both sides agreed with anti-Blaine advocates that the motivation for these state constitutional clauses was anti-Catholicism. Based on this, Justice Thomas, speaking for the plurality, concluded that the Blaine amendments were unconstitutional expressions of hos tility to a particular religion, while Breyer saw the Blaine amendments as reflecting the re ligious strife inherent when government, particularly though its funding practices, becomes entangled in schools. Thus, in the Mitchell plurality opinion four Justic es, Thomas, Rehnquist, Scalia, and Kennedy had asserted the opini on that Blaine Amendments were to be disavowed160 and buried.161 Now, in their Zelman dissent, Justices Breyer, Stevens, and Souter expressed concern about increasing religious intolerance and social turmoil162 identified the putative anti157 Id 158 Id citing Jeffries at 301. 159 Id. citing Jeffries at 301.305, and Hamburger, supra at 287. 160 Mitchell supra at 30. 161 Id. at 31. 162 Breyer, supra at 10.
62 Catholic intent of the Blaine Amendments as an example of how allowing ta x dollars to flow into religious institutions has a negative impact on society to which the Court should be responsive.163 Thus, seven of the nine Justices of th e United States Supreme Court appeared to be in agreement that the Blaine Amendments we re anti-Catholic in original intent and were, therefore, presumably unconstitutional. As a resu lt, it appeared that the days of the Blaine Amendments were numbered and that educati onal funding guidelines, not to mention the frameworks of many government funding programs, were about to face a potentially dramatic change. 163 Id at 4-5.
63 Table 2-1. First appearance of no compulsory attendance or support in state constitutions, 1776 to 1800. State Date Clause State Date Clause Maryland 1776 Art. 1 33 New Hampshire 1784 Art. I, 6 New Jersey 1776 Art. 18 Georgia 1789 Art. 4, 5 North Carolina 1776 Art. I, 34 Delaware 1792 Art. I, 1 Pennsylvania 1776 Art. I, 2 Kentucky 1792 Art. 12, 3 Vermont 1777 Ch I, 3 Tennessee 1796 Art. XI, 3 South Carolina 1778 Art. 38 Table 2-2. First appearance of no compulsory attendance or support in state constitutions, 1776 to 1850. State Date Clause State Date Clause Maryland 1776 Art. 1 33 Connecticut 1818 Art. 7, 1164 New Jersey 1776 Art. 18 Illinois 1818 Art. 8, 3 North Carolina 1776 Art. I, 34 Alabama 1819 Art. 1, 3 Pennsylvania 1776 Art. I, 2 Maine 1820 Art. 1, 3 Vermont 1777 Ch I, 3 Missouri 1820 Art. 13, 4 South Carolina 1778 Art. 38 Virginia 1830 Art. 3, 11 New Hampshire 1784 Art. I, 6 Michigan 1835 Art. 1, 4 Georgia 1789 Art. 4, 5 Arkansas 1836 Art. 2, 3 Delaware 1792 Art. I, 1 Rhode Island 1842 Art. 1, 3 Kentucky 1792 Art. 12, 3 Texas 1845 Art. 1, 4 Tennessee 1796 Art. XI, 3 Iowa 1846 Art. 1, 3 Ohio 1802 Art. 8, 3 Wisconsin 1848 Art. 1, 18 Indiana 1816 Art. I, 3 164 The Connecticut phrasing is unusual: And each and every society or denomination of Christians in this State shall have and enjoy the same and equal powers, rights, and privileges; and shall have power and authority to support and maintain the ministers or teachers of their respective denominations, and to build and repair houses for public worship by a tax on the members of any such society only, to be laid by a major vote of the legal voters assembled at any society Meeting Conn. Const. of 1818, Art. 7, 1. Note that intra-religious group support apparently could be compelled; extra-group support, however, could not.
64 Table 2-3. Adoption of no preference clauses State Date Clause State Date Clause North Carolina 1776 Art. I, 34 Maine 1820 Art. I, 3 Pennsylvania 1776 Art. IX, 3 Missouri 1820 Art. XIII, 5 Delaware 1776 Art. 29 Virginia 1830 Art. 3, 11165 Kentucky 1792 Art. XII, 3 Arkansas 1836 Art. II, 3 Tennessee 1796 Art. XI, 3 Florida 1838 Art. I, 3 Ohio 1802 Art. VIII, 3 Texas 1845 Art. I, 4 Indiana 1816 Art. I, 3 Wisconsin 1848 Art. I, 18 Mississippi 1817 Art. I, 4 Kansas 1855 Art. I, 7 Illinois 1818 Art. VIII, 3 165 And the Legislature shall not prescribe any religious test whatever; nor confer and peculiar privileges or advantages on any one sect or denomination Va. Const. of 1830, Art. 3, 11.
65 CHAPTER 3 THE WASHINGTON PROMISE SCHOLAR SHIP PROGRAM AND LOCKE V. DAVEY1 The Washington legislature established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses.2 The program was designed to subsidize tuition and other educational expenses during the first two years of college for eligible students3 enrolled at least half-time in an accredited college, including religiously affiliated colleges. In accordance with Article I, Section 11 of the Washington Constitution, as applied to the scholarship program through Wash. Rev. Code 28B.10.812, students receiving the scholarship could take religion clas ses but could not major in theology.4 The relevant part of Article I, Section 11 of the Washington Constitution states, RELIGIOUS FREEDOM. Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so cons trued as to excuse acts of licentiousness or justify practices inconsistent with the p eace and safety of the state. No public money or property shall be appropria ted for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.5 To ensure that the Promise Scholarships met the provision that no one shall be molested or disturbed in person or prope rty on account of religion the la w governing state-level financial aid required that scholarships be awarded, w ithout regard to the a pplicants religion.6 To ensure no public funds were appropriated for religious worship, exercise or instruction, state 1 Locke v. Dave y 540 U.S. 712 (2004). 2 Wash Rev. Code, 28B.119.005 (2004) 3 Id at 28B.119.010 4 Id c.f. Wash. Admin Code 250-80-020(13) (2004) 5 Wash. Const. Article I, 11 6 Washington Revised Code, 28B.10.812
66 law also mandated that [n]o aid shall be awarded to any student who is pursuing a degree in theology.7 It should be noted that the statute did not define theol ogy; however, as interpreted by the Washington Supreme Court, the term was de fined as, instruction that resembles worship and manifests a devotion to religion and religi ous principles in t hought, feeling, belief and conduct, i.e. instruction that is devotional in nature and designed to induce faith and belief in the student.8 As a result of this interpretation, Article I, Section 11 as implemented through Wash. Rev. Code 28B.10.812 understood theol ogy as training to become a clergy member, but it did not include studies of religion or religious topics in which the student learns about more than one religion; for example, in a comparative religions class or even a re ligious studies degree.9 Joshua Davey was awarded a Promise Schol arship and chose to attend Northwest College, an accredited private college affiliated with the Assemblies of God that is eligible under Promise Scholarship Program guidelines. When he enrolled, Davey chose a double major in pastoral ministries and business management/administration. Neither side in the case disputed that the pastoral ministries degr ee is devotional. After learning th at because of his declared major he would not receive his scholarship Davey sued under 42 U.S. C. seeking an injunction and damages, arguing that the denial of his scholarship violated, inter alia, the First Amendments Free Exercise and Establishment Clau ses. Before the District Court both parties requested summary judgment, whereupon the cour t rejected Daveys claims and issued a summary judgment for the State. Davey appeal ed and the Ninth Circuit Court of Appeals reversed the lower court decision.10 Arguing that the states excl usion of theology majors was 7 Wash. Rev. Code, 28B.10.814 8 Calgary Bible Presbyterian Church v. Bd. Of Regents of the Univ. of Wash ., 436 P.2d 189, 193 (Wash. 1967) 9 See Brief Amicus Curiae of the American Civil Liber ties Union, et al., p. 4 10 Davey v. Locke 299 F.3rd 748 (9th Cir. 2002)
67 not narrowly tailored to achieve a compelling state interest under Church of Lukumi Babalu Aye, Inc. v. Hialeah,11 the court concluded that religion ha d been singled out for unfavorable treatment by the State. Finding that the State of Washingtons antiestablishment concerns were not compelling, the Circuit Court declared the unc onstitutional the denial of the scholarship to Davey. The State of Washington appealed and the U.S. Supreme Court agreed to take the case. Because the U.S. Supreme Court had already ruled in another Washington case, Witters v. Washington Department of Services for the Blind that the establishment Clause of the First Amendment does not preclude the use of public tax money to prepare for the ministry,12 the fundamental issue in Locke was the next logical question: Does a more stringent state antiestablishment clause impair protected rights? In this case, the specific que stion was, if the state makes scholarship aid available for students w ho pursue all other majors, can those pursuing pastoral studies, theology, be denied the aid? In addressing this question, Daveys attorneys were arguing that the state restriction violated the Free Exercise Clauses prohibition of practices that impair religious belief in the abse nce of a compelling government interest;13 that the state action represented hostility to ward religion in violation of the establishment clause;14 that it violated the Free Speech Clause which protects individuals against viewpoint discrimination,15 and that it violated the Equal Protecti on Clause of the Fourteenth Amendment16 because theology majors were si ngled out for disfavor. 11 508 U.S. 520 12 Witters v. Wash. Dept of Serv. For the Blind 474 U.S. 481 (1986) 13 Locke 124 S. Ct. at 1311 14 Id at 1314-1314 15 Id at 1313, n3 16 Id at 1311, 1313, n3. The First Amendment is applied against the states through th e Fourteenth Amendment, which has been interpreted as incorporating First Amendment guarantees. See Everson v. Bd. Of Educ. 330 U.S. 1,
68 As Locke came before the U.S. Supreme Court, judicial support for the principle of nondiscriminatory government neutrality toward religion seemed to be the dominant paradigm.17 Apparently in line with recent Supreme Court jurisprudence, Daveys attorneys were arguing that the scholarship program was not religiously neutral if past oral studies majors could be treated differently. Thus, many observers of the Supreme Court expected Davey to prevail. Twenty two briefs were filed before the Supreme Court: fifteen in support of Davey,18 and seven supporting Locke.19 In those briefs, five states joined supporting Davey20 and five states supported Locke.21 15-16 (1947); Cantwell v. Connecticut 310 U.S. 296, 303 (1940) Incorporation emerged from the Fourteenth Amendment which states, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor sh all any State deprive any person of lif e, liberty, or property, without due process of law; nor deny to any person within its jurisd iction the equal protection of the laws. The "Privileges and Immunities Clause" has been interpreted as applying the federal Constitution, especially the Bill of Rights, which lists the privileges and immunities of the citizens, to the states. 17 McCarthy, supra at 468 18 Becket Fund for Religious Liberty, Catholic League for Religious and Civil Rights, and Historians and Legal Scholars; Black Alliance for Educational Options; Common Good Legal Defense Fund, and Your Catholic Voice Foundation; United States Conference of Catholic Bishops, North Park Theological Seminary, Worldwide Church of God, Clifton Kirkpatrick as Stated Clerk of the Presby terian Church (U.S.A.); Council for Christian Colleges & Universities, Association of Catholic Colleges & Universities, Association of Southern Baptist Colleges & Schools, Center for Public Justice, Family Research Council, Focus on the Family, Christian Legal Society; Fairness Foundation; Institute for Justice, Center for Education Reform, Cato Institute, Citizens for Educational Freedom, Goldwater Institute; Landmark Legal Foundation; Liberty Counsel; National Jewish Commission on Law and Public Affairs; Religious Universities and Colleges; Solidarity Cent er for Religion and Justice; State of Alabama; State of Florida; States of Texas, Mississippi, and Utah. 19 American Civil Liberties Union, American Civil Liberties Union of Washington, Americans United for Separation of Church and sate, People for the American Way Foundation, Lambda Legal Defense & Education Fund; American Jewish Congress; Anti-Defamation League; Hadassah, the Womens Zionist Organization of America, Jewish Council for Public Affairs, Commission on Social Action of Reform Judaism; Historians and Law Scholars; National Education Association; National School Bo ards Association, Arizona School Boards Association, Michigan Association of School Boards, Minnesota School Boards Association, New York State School Boards Association, Pennsylvania School Boards Association, Ut ah School Boards Association, Virginia School Boards Association, American Associ ation of School Administrators, Horace Mann League, and Public Education Network; Briefs of the States of Vermont, Massachusetts, Missouri, Oregon, and South Dakota and of he Commonwealths of the Northern Marianna Islands and Puerto Rico. 20 Alabama, Florida, Texa s, Mississippi, and Utah. 21 Vermont, Massachusetts, Missouri, Oregon, and South Dakota.
69 A review of the briefs filed before the Court finds broad agreement that Article I, 11 of the Washington Constitution was a Blaine Am endment and that the Promise Scholarship Program operationalizes that Amendment by de nying scholarships to ministerial students.22 Sixteen of the twenty-two briefs refer the Washington Blaine Amendment, and two briefs primarily argue that the Promise scholarship refl ects a Blaine Amendment. No brief disputes the assertion that the Washington clau se is such an Amendment. Given near universal agreement that the denial of the scholarship to Davey reflected the Washington Blaine Amendment, and given the past negative comments made by seven of nine Supreme Court Justices concerni ng Blaine Amendments, it appeared to many observers that the Washington Blaine Amendment, and probably Blaine Amendments in general, were likely to be ruled unconstitutional. Briefs Amicus Curiae in Support of Davey In general, the briefs supporting Davey present seven key argum e nts addressing 1) the First Amendment Establishment Clause; 2) the First Amendment Free Exercise Clause; 3) the First Amendment Free Speech Clause; 4) the Eq ual Protection Clause of the Fourteenth Amendment; 5) Conflict between state and fe deral protections of rights; 6) Excessive Entanglement; and 7) Blaine Amendment History. The First Amendment states, Congress shall ma ke no law respecting an establishment of religion, or prohibiting the free exer cise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to peti tion the government for a 22 Wash. Rev. Code, 28B.10.814
70 redress of grievances.23 The first three phrases of that amen dment are the relevant texts for this case. Likewise, Section 1 of the Fourteenth Amendment states, All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein th ey reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any st ate deprive any person of life, liberty, or property, without due process of law; nor de ny to any person within its jurisdiction the equal protection of the laws. First Amendment Establishment Clause The Establishm ent Clause arguments revolve around the assertion that denying the Promise Scholarship to Davey amounts to a reli giously motivated denial of a public benefit. While on one hand, the Establishment Clause clearly prevents the federal, and by incorporation, the state governments from decl aring a particular religion to be the official religion, longstanding jurisprudence has also argued that this clause places limits on direct governmental funding of religious activities. However, Daveys supporters argue that the denial of the scholarship represents the opposit e violation: that because, [ o]nly students who take their religion seriously enough to devot e a significant portion of their college educati on to the pursuit of religious study in a religious se tting are disqualified this cons titutes a degree of hostility to religion that is unconstitutional.24 Furthermore, by tilting the playing field in favor of students who are willing to pursue secular counseling, education, or social work degrees from postsecondary educational institutions, the State of Washington provides non-theist ic scientific or ethical viewpoints with a discriminatory advantage in the marketplace of ideas pertaining to the maintenance of the fabric of society.25 23 U.S. Const., Amend. I. 24 Br. National Jewish Commission on Law and Public Affairs, p. 5, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). See also Br. State of Florida, p. 7. 25 Br. Solidarity Center for Religion and Justice, p. 26, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004).
71 According to Davey supporters, this kind of discriminatory denial of funding violates both the establishment clause and substa ntive neutrality by inhibiting religion.26 Furthermore, denial of funding interferes with voluntary choices and commitments in religious matters.27 Supporters argue that the no establishment require ment is fulfilled when a program is neutral among religious sects, between religion and non-religion, and does not deter any religious belief. Furthermore, they point out that brooding and pervasive devotion to th e secular and a passive, or even active, hostility to the religious is prohibited.28 At the same time, Daveys supporters recogni ze that federalist prin ciples previously elucidated by the Court may compel some play in the joints between what the establishment clause requires and what it permits.29 However, they argue, ordinarily that play in the joints will favor religious freedom and that the States may not impede free exercise rights or any other individual religious liberty interest in the name of federalism, or separation of church and state, or any other legal concep t of similar abstraction.30 The Landmark Legal Foundation even goes so far as to argue that the Founding Fathers never intended the Establishment Clause to remove religion from the public square.31 The famous Wall of Separation they assert, is a misleading 26 Br. Council for Christian Colleges & Universities, et al., p. 9-10, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). See also Br. Fairness Foundation, p. 7-8; Br. Justice, et al., p. 19; and Br. Landmark Legal Foundation, p. 4. 27 Br. Council for Christian Colleges & Universities, et al, p. 25, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). 28 Br. Fairness Foundation, p. 7, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004), citing Goldberg, J. concurring decision in Abington v. Schempp, 374 U.S. 203, 305-306 (1963)] 29 Norwood 413 U.S. at 469 30 Br. State of Alabama, p. 8, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004), citing Zelman 536 U.S. at 678-79. 31 Br. Landmark Legal Foundation, p. 8, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004).
72 metaphor32 and religion has long been entwined in pub lic life. Therefore, the federal and state Establishment Clauses merely represent, an agr eement among the states that no single church should receive national sponsorship.33 Because of this, the Establishment Clause does not require neutrality between religion and irre ligion but allows the favoring of religion;34 and obviously Daveys scholarship. First Amendment Free Exercise Clause While barring the establishm en t of religion, the First Amendment also asserts that no law may prevent the free exercise of religion. Two hundr ed years of case history have defined this clause from a narrow reading presented in the 1878 case Reynolds v. United States which argued that the clause only protected re ligious beliefs and not practices35 to a broader reading that allows limiting certain kinds of religious pract ices only if there is some compelling state interest.36 Absent a compelling state interest Dave ys supporters argued, discrimination against religious education in otherwis e comprehensive state funding programs is prohibited by the Free 32 Id. citing Wallace v. Jaffree 472 U.S. 38, 92 (1985) 33 Id. p. 11 34 Id. 35 98 U.S. 145 (1878): Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of societ y under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances 36 This is currently a lively legal arena. The c ompelling state interest test is exemplified in Sherbert v. Vernier et al. 374 U.S. 398 (1963). While case law was moving away fr om that test, the 1993 Religious Freedom Restoration Act has somewhat reactivated that principl e within the subsequent constraints of City of Boerne v Flores (1997), in which the Court ruled that RFRA was unconstitutional, at leas t as applied to state and local governments. The Court concluded that neither the Constitution nor 5 of the Four teenth Amendment, gave power to Congress to overrule the Courts Fourteenth Amendment interpretations; and that the RFRA had the intent of substituting Congressional interpretation of the Free Exercise Cl ause for that of the Supreme Court.
73 Exercise Clause of the First Amendment.37 Furthermore, Daveys supporters argued, Washington cannot compel a choice between th e exercise of a First Amendment right and participation in an otherwise available public program.38 First Amendment Free Speech Clause In law, denying a scholarship to a stud ent on religious grounds becom es a free speech issue if the states action were intended or has the effect of inhibiting a persons freedom of speech or expression even if the states action is not itself related to speech. Thus, this argument asserts that when a state has chos en to fund both public and private school education as part of a comprehensive program with neutral qualifying criteria, the provision of a scholarship to a qualifying individual who then a pplies that funding to a reli gious institution cannot be characterized as a form of state speech in favor of that institution or religion.39 At the same time, because the individual student chooses where and how to apply the money, any actions by the state to restrict that choice ba sed on religious grounds is by de finition inhibiting, therefore the rule prohibiting viewpoint discrimination should apply.40 Viewpoint discrimination arguments arise most recently out of Rosenberger v. University of Virginia .41 In this case the University refused to pa y the expenses of a student-run religious newspaper when it paid print costs for other student publications. A five to four Court 37 Br. Black Alliance for Educational Options, p. 9, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). See also Br. United States Confer ence of Catholic Bishops, et al., p. 3-4; Br. Council for Christian Colleges & Universities, et al., p. 12-13; and Br. Fairness Foundation, 10-12. 38 Br. Council for Christian Colleges & Universities, et al., p. 27, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004).; and Br. Fairness Foundation, p. 9, citing Thomas v. Review Bd. Of Ind. Employment Div ., 450 U.S. 707, 716 (1981). 39 see Rust v. Sullivan 500 U.S. 173 (1991), and Regan v. Taxation With Representation of Wash ., 461 U.S. 540 (1883). 40 Br. Black Alliance for Educational Options, p. 10-13, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). See also Br. United States Conference of Catholic Bishops, p. 5-6, and Br. State of Florida, p. 14-17. 41 515 U.S. 819 (1995).
74 determined this to be unconstitutional and a denial of the affected students free speech rights arguing, A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Es tablishment Clause attack is their neutrality towards religion. We have held that the gua rantee of neutrality is respected, not offended, when the govern ment, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. More than once have we rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free spe ech rights to religious speakers who participate in broad-reaching govern ment programs neutral in design.42 This ruling is extended to Davey by arguing th at by denying Promise sc holarships to certain theology majors, the state of Washington used a vi ewpoint-based restriction to regulate private expression between teachers and students in a manner that is ai med at suppressing the interchange of ideas for bringing about political and social change s thought inimical to the State of Washingtons own interests.43 The argument is also presented that the di squalification of Dave y represents a state assertion of suppression of dangerous ideas wh ich cannot legitimately be applied to religion,44 and that the viewpoint discrimi nation engaged in by the state of Washington is not narrowly tailored to proscribe unlawful advocacy or any ot her violence-inciting expression on the part of students pursuing theology degrees.45 Furthermore, The sweeping scope of the Washington Blaine Amendments prohibition on the appropriation of public money or property for any religious worship, exercise, or instruction (even in cases where comp arable secular activ ities are publicly 42 http://www.law.cornell.edu/ supct/html/94-329.ZO.html 43 Br. Solidarity Center for Religion and Justice; p. 5, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). 44 Br. United States Conference of Catholic Bishops, et al. p. 5-6, Locke v. Davey No. 02-1315 (U.S. Supreme Court, Feb 25, 2004). 45 Br. Solidarity Center for Re ligion and Justice, p. 15ff.
75 funded) blurs the distincti on, recently articulated by th is Court, between engaging in constitutionally proscribable speech and engaging in core political speech.46 Equal Protection Seven briefs for Davey argue that the First Am endment through the Equal Protection Clause of the Fourteenth Amendment47 forbids singling out religi ous instruction from an otherwise comprehensive state funding of all other priv ate alternatives.48 While recognizing that direct public funding of religious inst ruction would be unconstitutional, in Locke it was argued that because public money reaches private, relig ious schools as the result of a true private choice by Davey, his use of scholarship f unds to pursue religious education passes constitutional muster.49 Failure to extend the scholarship to Davey also violates the standard of neutrality as articulated by the Court.50 Finally, and anticipating the historical arguments about Blaine Amendments, two briefs point out that the Equal Protection Clau se invalidates state constitutional provisions rooted in hostility toward a particular group.51 Conflict between State and Federal protections of rights Daveys supporters also discuss the potential f or state and federal laws to conflict when it comes to the protection of individual rights. Whil e the United States Constitution is the supreme 46 Id ., p. 16; citing Virginia v. Black 123 S.Ct. 1536, 1551 (2003) 47 The legal doctrine of incorporation applies the Federal Bill of Rights against the states through the Equal Protection Clause of the Fourteenth Am endment which states in part, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This clause was used to apply the Bill of Rights to the states in a series of cases in the 1940s, 50s, and 60s. Wikipedia has a strong entry on Incorporation at http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights). 48 See for example, Br. Black Allian ce for Educational Options, p. 7. 49 Br. Black Alliance for Educational Options. p. 13; and Br. Fairness Fo undation, p. 9. cf. Zelman v. SimmonsHarris 536 U.S. 639, 649 (2002)). 50 Br. State of Texas, et. al. The entire brief is built around the concept of neutrality. See also Br. State of Florida, pp. 4 11; Br. Conference of Catholic Bishops, p. 4. 51 Br. Black Alliance for Educational Options, p. 13-19; and Br. Fairness Foundation, p. 15-19.
76 law of the land52 and supersedes any state constitu tion, state constitutions can be more protective of individual rights than the U.S. C onstitution, but states cannot abridge rights granted by federal law.53 Given this, it is argued that a State has no constitutional obligation to set up a scholarship program, but once it chooses to do so the State has a federal constitutional obligation not to exclude citizens from the program on the basis of their religious choices.54 It was also argued that the Washington legi slatures denial of th e scholarship was an effort to control and channel th e free and independent choices of individuals with respect to religion which violated the United State Constitution.55 Specifically, it was asserted that the State has no compelling justification for disc riminatory exclusion of theology degrees.56 Daveys supporters recognized th at the Washington legislature did assert a constitutional value for this discrimination, specifically to avoid compelling support for religious study;57 however they asserted that eliminating discrimination against religion would provide more, not less, separation of church and state.58 Furthermore, while avoidance of governmentally compelled support for religion contrary to a taxpa yers [sic] own religious views and avoidance of governmentally established chur ches are legitimate values, th ey are scarcely threatened by awarding Promise Scholarships in a re ligiously nondiscriminatory manner.59 52 U.S. Const, Art. VI. 53 Br. Common Good Legal Defense Fund, and Your Catholic Voice Foundation, p. 11; Br. Landmark Legal Foundation, et al., p. 3. 54 Br. State of Alabama, p. 1;. 55 Br. Institute for Justice, et al., p. 13ff 56 Br. United States Conference of Catholic Bishops, et al., p. 6-8; Br. Fairness Foundation, p. 24 ff. 57 This argument will be discussed in detail below. 58 Br. Fairness Foundation, p. 28-30. 59 Br. United States Conference of Ca tholic Bishops, et al., p. 8.
77 Finally, Daveys supporters argued, whenever the No Establishment and Free Exercise Clauses are in conflict, the individual liberty interest protected by the Free Exercise Clause should govern over the more et hereal treats to Establishment Clause state interests.60 Excessive Entanglement The legal p rinciple of excessive entanglement refers to an ill-defined conditioned under which church and state become dangerously involved. This prin ciple is first presented in Walz v. Tax Commission of the City of New York which determined that tax exemptions for religious institutions did not violate the United States Constitution61 in part because such exemptions create only a minimal and remote involvement between church and state and far less than taxation of churches.62 The principle of excessive enta nglement became an important element of Supreme Court jurisprudence in Lemon v. Kurtzman which determined that Pennsylvania's Nonpublic Elementary and Secondary Educati on Act of 1968, under which the state reimbursed non-public schools (predominantly religious schools) for te acher salaries, textbooks and instructional materials, violat ed the Establishment Clause. Locke once again raised the issue that tax dollars could be utilized fo r religious purposes, ministerial training, in this case. Supporters of Davey however argued that non-discriminatory funding of secular functions by religious institutions is fundamentally different from the preferential funding of religious f unctions that the Founders rejected.63 Instead, they asserted, it is when states involve themselves in iden tifying theology degrees as opposed to non60 Br. Common Good Legal Defense Fund, and Your Catholic Voice Foundation, p. 14. 61 397 U.S. 664 (1970) 62 Walz 397 U.S. at 676. Michael Ryan provides a good disc ussion of excessive entanglement in his article, A Requiem for religiously based property tax exemptions, Georgetown Law Journal June 2001 [online] http://findarticles.com/p/articles/mi_qa3805/is_200106/ai_n8975239/pg_1. 63 Br. Council for Christian Colleges & Universities, et al., p. 19.
78 devotional religion degrees that excessive entanglement occurs.64 Furthermore, the scholarship program violates the autonomy of schools by crea ting an incentive to ch ange teaching to allow students to receive scholarship.65 Finally, Daveys supporters argued that constitutional nondiscrimination in no way prevents government from taking into account the centrality, vitality, and diversity of religion in contemporary American life. So long as th e government acts even-handedly, the political branches are free to take steps to relieve religious groups from the special burdens sometimes imposed by the law.66 Blaine Amendment History The final arguments presented by the briefs filed in support of Davey relate to the supposed history of the Blaine Amendments. The fundamental argument is simply that the original Blaine Amendment and its state-level progeny, includi ng the Washington Provision at issue in Locke were animated by religi on-based hostility and fear.67 In support of this argument, Lockes supporters cite the statement from Mitchell v. Helms that Blaine Amendments result from, a hostility to aid to pervas ively sectarian schools [that] has a shameful pedigree that [the Court does] not hesitate to disavow68 as well as the later assertion, the exclusion of pervasively sectarian schools from otherwise permissible aid programs prec isely the purpose and effect of 64 Id p. 16-17. 65 Id. p. 18. 66 Br. Fairness Foundation, p. 14; citing Corporation of Presiding Bishop v. Amos 483 U.S. at 344-35: government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause; itself citing Hobbie v. Unemployment Appeals Comm'n of Fla ., 480 U.S. 136, 144 -145 (1987). 67 This is the argument of the Br. Becket Fund for Religious Liberty, et al. 68 Mitchell v Helms 530 U.S. 793, at 828. Cited in Br. Becket Fund, p. 4; Br. Black Alliance, p. 7; Br. Institute for Justice, p. 9; and Br. State of Texas, et al., p. 25.
79 the Blaine Amendments represented a doctrin e, born of bigotry, [tha t] should be buried now.69 This argument is revolves around the Nativist movement of the Nineteenth Century and the strong anti-Catholic and anti-i mmigrant bias of that movement.70 According to Daveys supporters, prior decisions of the U.S. Supreme C ourt established that the U.S. and state Blaine amendments were animated by Nativism.71 Furthermore, they assert, [a] large and growing historical record establishes conclusively that the Federal and State Blaine Amendments were animated by Nativism.72 In this reading of history, Nativist hostility to European immigrants and their religions produced fierce, organized opposition to sectari an schools, culminating in the movement to pass the U.S. and state Blaine Amendments.73 Specifically, it is assert ed, sectarian became a code word for Catholic because Protestant pr actices such as readings from the King James Bible were not considered sectarian.74 The conclusion of purposeful anti-Catholicism is underscored, Daveys supporters argued, by a number of Nineteenth Century judicial interpretations of the various state Blaine Am endments that confirme d and established their nativist purpose.75 Thus, the Nineteenth Century Comm on Schools, as public schools were 69 Id. at 829. 70 For a good history of nineteenth century nativism, see John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925 (Rutgers University Press, Marc h 2002), especially Chapter 4. 71 Br. Becket Fund, citing Mitchell v Helms 530 U.S. 793, at 828 and Zelman v. Simmons-Harris 536 U.S. 639, at 721. 72 Id .. at 8. See also Common Good, pp. 2-11; and Institute for Justice, pp. 9-12. 73 Id at p. 10. 74 Br. Common Good, p. 4. See also Steven K. Gr een, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992). 75 Br. Becket Fund, p.15 18, citing a number of rulings that determined the King James version of the Bible was not sectarian and therefore did not ru n afoul of state Blaine Amendments.
80 called, inculcated the Protestant common relig ion, which was acceptable to society and the courts because it was not sectarian;76 and Blaine Amendments were intended to preserve the Protestant status quo in public schools.77 Briefs Amicus Curiae in Support of Locke In response, the briefs supporting Locke pres ent six prim ary arguments: 1) that the Free Exercise and Establishment Clauses leave room fo r play in the joints, allowing states some discretion in policies designed to guarantee religious liber ty; 2) that the permissibility of state funds going to religious institutions cannot become a requirement to provide religious schools all aid allowed; 3) that denial of a subsidy to a constitutionally protecte d activity is not an unconstitutional penalty; 4) that the public forum pr ecedents are not applicable to this case; 5) that a ruling in favor of Davey will flood states with litigation; and, once again, 6) historical arguments about the origins and purposes of the Blaine Amendments.78 Play in the Joints In the 1970 case, Walz v. Tax Commission of the City of New York the U.S, Suprem e Court pointed out that the religion clauses tend to conflict with each othe r if carried to their 76 Br. Common Good, p. 3 4. See also Br. Becket Fund, p. 12 citing Lemon 403 at 628 (Early in the 19th century the Protestants obtained control of the New York school system and used it to promote reading and teaching of the Scriptures as revealed in the King James version of the Bible.). 77 Br. Landmark Legal Foundation, p. 14. 78 Br. American Civil Liberties Union, American Civil Liberties Union of Washington, Americans United for Separation of Church and State, Peop le for the American Way Foundation, Lambda Legal Defense & Education Fund; American Jewish Congress; Br. Anti-Defamation Le ague, Hadassah, The Womens Zionist Organization of America, Jewish Council for Public Affairs, Commission on Social Action of Reform Judaism; Br. Historians and Law Scholars; Br. National Education Association; Br. Nati onal School Boards Association, Arizona School Boards Association, Michigan Association of School Boards, Minnesota School Boards Association, New York State School Boards Association, Pennsylvania School Boards Association, Utah School Boards Association, Virginia School Boards Association, American Association of School Administrators, Horace Mann League, and Public Education Network; Br. States of Vermont, Massachusetts, Missouri, Oregon, and South Dakota and of the Commonwealths of the Northern Marianna Islands and Puerto Rico.
81 logical extreme.79 This potential has been recognized in a number of subsequent rulings80 and requires play in the joints81 in which it is the Court's responsib ility to determine if the law in question falls into that gap where there might be space for legislative action neither compelled by the Free Exercise Clause nor prohi bited by the Establishment Clause.82 Lockes supporters argued that the Washington restric tion on Promise Scholarships falls into this category in which states have some discretion in policie s designed to guarantee religious liberty.83 Washingtons policy to provide greater anti-establishment protections than the United States Constitution is presented in Artic le I, 11 of the Washington Constitution.84 According to Lockes supporters, this provision was created to protect religious freedom, not prevent it.85 Because no public funds are to be appropriated for religious wors hip, exercise or instruction, Washington taxpayers are not [p] ut in the position of paying fo r the religious instruction of aspirants to the clergy with whos e religious views they disagree.86 In this argument, this case is not a conflict between the federal Free Exercise rights of one indi vidual and a state establishment 79 Walz 397 U.S. at 668-669. See also Sch. Dist. V. Schempp 374 U.S. 203, 247 (1963) (Brennan, J. concurring). 80 See e.g. Widmar v. Vincent 454 U.S. 263, 271-274 (1981); Norwood v. Harrison 413 U.S. 455, 469 (1973); Tilton v. Richardson 403 U.S. 672, 677 (1971). 81 Walz v. Tax Commn of City of New York 397 U.S. 664, 669. (The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sp onsorship and without interference.) 82 See Esbeck, Carl H., "'Play in the Joints Between th e Religion Clauses' and Other Supreme Court Catachreses". Hofstra Law Review Vol. 34, p. 1331, 2006 Available at: http://ssrn. com/abstract=934410 (arguing that this conflict is a logical impossibility but providing a good overview of the issue). 83 Br. American Civil Liber ties Union, et al, p. 8. 84 See supra pg. 65. 85 Br. Anti-Defamation League et al. p. 20, citing, Gallwey v. Grimm, 48 P.3d 274, 295 (Wash. 2002), also Perry v. Sch. Dist. No. 81 344 P.2d 1036 (Wash. 1959). 86 Witters v. state Commn for the Blind, 711 P.2d 1119, 1120 (Wash. 1989).
82 clause. Rather, this case is at the intersection of free exercise rights of one individual and the overall free exercise rights of the people of an entire state, as evinced by their chosen state constitution.87 For these reasons, the intersection between the Washington Constitution and the Promise Scholarship provision in question falls into this play in the joints because the Washington Constitution provides greater protection for both free exercise and non-establishment than does the U.S. Constitution: [T]he Washington Courts have interpreted [the state constitution] to provide broader protection for free exercise of religion than its federal counterpart, yet simultaneously to provide a greater separation of church and state.88 Along with this play in the joints the Cour t has explicitly recognized that a state may guarantee stricter separation of church and state than the Establishment Clause requires: Within our federal system the substantive rights provi ded by the Federal Constitution define only a minimum.89 Furthermore, state courts are absolute ly free to interpret state constitutional provisions to accord greater protections to indi vidual rights than do similar provisions of the United States Constitution.90 Likewise, in reviewing state ac tion challenged as unconstitutional, the Court has shown particular solicitude for st ate constitutional guarantees. For example, in Gregory v. Ashcroft ,91 the Court stated: In this case, we are dealing not merely with government action, but with a state c onstitutional provision approved by the people of Missouri as a whole. 87 Id. p. 21 88 Br. American Jewish Congress, p. 4 and Br. Anti-Defamation League, p. 16 citng R.F. Utter and H.D. Spitzer. The Washington State Constitution: A Reference Guide, (Greenwood Pr ess, 2002). 89 Br. National School Boards Association, et al., citing Mills v. Rogers 457 U.S. 291, 300 (1982) 90 Id ., citing Arizona v. Evans 514 U.S. 1, 8 (1995). 91 501 U.S. 452 (1991)
83 This constitutional provision refl ects both the considered judgment of the sate legislature that proposed it and that of the citi zens of Missouri who voted for it.92 Lockes supporters also argued that states ha ve a vital interest in setting appropriate limits on the use of public monies to support religion and in the pr oper accommodation of religious practices. States have come to differing conclusions an how best to balance these competing concerns to ac hieve religious liberty.93 Thus, the decision of the Ninth Judicial Circuit was incorrect: In the Ninth Circuits judicial world, State decisions con cerning religious liberty are either mandated or prohibited; no space is left between the Free Exercise Clause and the Establishment Clause for States to enact reasonable legislation. Such a rule federalizes and eliminates any meaningful ro le for the States in establishing churchstate policy.94 But the states do have an important role in guaranteeing religious liberties: [Some States] erect a higher wall between church and state than exis ts under the federal Constitution, not as a form of discriminati on, but as a reflection of their peoples belief that government support of religious act ivities is, ultimately, damaging both to religion and government.95 They also seek to address a significant governmenta l concern over compelling citizens to subsidize religious beliefs and practices with which they may stringently disagree.96 States could rightly 92 Id. at 471 93 Br. States of Vermont, et al., p. 20 94 Id. ., p. 21 citing Ira C. Lupu & Robert W. Tuttle, Zelma ns Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev 917, 965 (2003). 95 See McCollum 333 U.S. at 212. 96 Br. Vermont, et al., p. 25, citing See Everson 330 U.S. at 9, 13 (early settlers came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.).
84 conclude that forcing such payments might br eed animosity and resentment toward religion. Such concern is neither insignifi cant nor constitu tionally suspect.97 In addition to the legitimate state role in pr eserving religious libert y, play in the joints is also appropriate in this case because mere differential treatment of religion has never been held by the Supreme Court to violate the Free Ex ercise Clause; some ki nd of coercive burden must be imposed on religious exercise.98 The protections of the Free Exercise Clause pertain only if the law at issue discrimina tes against some or all religious beliefs or regulat es or prohibits conduct because it is undert aken for religious reasons.99 Finally, the U.S. Supreme Courts acknow ledgement of state authority to extend protections beyond those required by the federal constitution is c onsistent with recognizing the federalism prerogativ es of the states,100 and with the need, exemplified by this case, to avoid handcuff[ing] the states ability to experiment with education.101 In Locke v. Davey not only are issues of federalism at stake, these is a cert ain wisdom of allowing Stat es greater latitude in dealing with matters of religion and education.102 Although Justice Thomas may have been calling for greater flexibility for states to fash ion benefits programs that include religious recipients, the principle of greater latitud e provided state constitutional laboratories must 97 Id p. 28. See also Abner Greene, Why Vouchers are Unconstitutional and Why Theyre Not, 13 Notre Dame J.L. Ethics & Pub. Policy 397, 401-02 (1999)(compelling persons to pay for religious schools akin to forced speech); Kathleen Sullivan, Parades, Public Squares and Voucher Payments: The Problems of Government Neutrality, 28 Conn. L. Rev 243, 256 (1996) (noting danger of forcing citizens to fund religious messages with which they disagree); Michael McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 Harv. L. Rev 989 (1991) (requiring taxpayers to fund religions they do not accep t is understood to violate their religious conscience. 98 Br. Anti-Defamation League, et. al, p. 7. 99 Id ., citing Lukumi 508 U.S. at 532 100 Zelman v. Simmons-Harris 536 U.S. 639, 679 (2002) (Thomas, J. concurring), 101 Br. National Education Association, citing Zelman at 680 102 Zelman v. Simmons-Harris 536 U.S. 639, 680 (2002) (Thomas, J. concurring).
85 extend in both directions.103 Implicit in the Courts decision in Zelman is both the understanding that separation of church and state does not require a national constitutional provision precluding any and all us es of public money to fund religious education and the recognition that the First Amendm ents Religion Clauses contain no mandate that the States must fund religious education that overr ides constitutional prov isions such as Washingtons Article I, Section 11.104 Is aid permissible? cannot become is aid compulsory?105 In addition to play in the jo ints Lockes supporters argued th at there must be a critical distinction made between what is permitted and what is required by the U.S. Constitution. In other words, simply because the Constitution allo ws something, it does not automatically require it. In this case, the U.S. Constitution allows ai d to be extended to students pursuing religious vocations, however it does not require it: the Courts recognition that the religion clauses of the First amendment are not an either/o r proposition that is, it is not the case that whatever is not forbidden (or mandated) by one clauses is mandated (or forbidden) by the other.106 This road has been well-traveled by the Cour t, Lockes supporters argued. To the extent the Religion Clauses of the First Amendment do not prohibit financial ai d, they do not require that it be given.107 Specifically, in Brusca v. Missouri the Court had affirmed a district courts rejection of a claim that parent s had a right to tax-raised funds for the purpose of affording a 103 Br. Historians and Law Scholars, p. 14-15 104 Br. National Education Association, p. 20 105 Br. American Jewish Congress p.1, Br. National Education Association, p.1, Br. National School Boards Association, p.11 106 Br. American Jewish Congress, p. 1 citing Norwood v Harrison 413 U.S. 455, 462 (1973) (states not required to provide religious schools all aid allowed) 107 Id p. 3, citing Brusca v. Missouri, ex rel. State Bd of Educ 332 F.Supp 275, 276 (E.D. Mo. 1971), affd 405 U.S. 1050 (1972). See also Br. National School Boards Association, p. 6
86 religious [private school] educati on to their children when the State provided children a secular public school education.108 In general, the Bill of Rights to the Unite d states Constitution places negative constraints on actions by the government including governmental action to facilitate a private individuals activity but does not place affirmative obligations on the government to take action either to facilitate a private individuals activity or otherwise.109 States have broad latitude in public funding choices, as long as legisla tion does not infringe upon constitu tionally protected rights or discriminate invidiously in its subsidies in such as way as to aim at the suppression of dangerous ideas.110 As Justice Douglas noted, The fact that the government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what government cannot do to th e individual, not in terms of what the individual can exact from the government.111 Still again, as Judge M. Margaret McKeown ha d argued in dissent from the Ninth Circuit Majority, in Maher v. Roe112 the Court has held that the denial of funding by a state for abortions does not so burden that right ev en when the individual is indige nt or otherwise qualified for medical benefits.113 In Maher an indigent woman had sued Edward Maher, the Commissioner of Social Services in Connecticut arguing that be cause the state funded full-term childbirth the 108 Brusca v. Missouri at 276-277 109 Br. National Education Association, p. 5 110 Br. National School Boards Association, p. 12 and Br. Vermont, et al. p. 6, citing Regan v. Taxation with Representation 461 U.S. 540, 548 (1983) itself quoting Cammarano v. United States 358 U.S. 498, 513 (1959). 111 Br. Vermont, et al. p. 7, citing Sherbert v. Verner 374 U.S. 398, 412 (1963) (Douglas, J., concurring). See also Lyng v. Northwest Indian Cemetary Assn 485 U.S. 439, 451 (1988) (noting same). 112 Maher v. Roe 432 U.S. 464 (1977). 113 Davey v. Locke 299 F.3d 748 (9th. Cir. 2002), p. 10167-8. McKeown dissenting, citing Maher v. Roe 432 U.S. 464, 474 (1977).
87 restriction on funding for abortion was unconstitutional. In a 6-to-3 decision, the Court held that the Connecticut statute placed no obstacles in the pregnant woman's path to an abortion but maintained her in her current, admittedly poverty stricken condition requiring financial assistance for an abortion. The Court noted that there was a distinction between direct state interference with a protected activity and "state encouragement of altern ative activity consonant with legislative policy."114 Holding that financial need alone did not identify a suspect class under the Equal Protection Clause, the Court found that the law wa s "rationally related" to a legitimate state interest and survived scrutiny under the Fourteenth Amendment.115 In the same fashion, the Washington legisl atures refusal to fu nd Daveys religious education does not interfere with his right to fr eely exercise his religi on. Because the policy does not penalize Daveys constitu tional right to the free exer cise of religion, cases like Sherbert v. Verner116 and McDaniel v. Paty117 do not apply.118 Likewise, Washingtons decision not to fund education for religious vocations legitim ately furthers such purposes as: (i) honoring the Jeffersonian principle that taxpayers should not be compelled to support any religious exercise whatsoever, and its corollary that, with respect to financing, religion should be wholly volunt ary and the government should neither help nor interfere; (ii) avoiding re ligiously based social conflict;119 and (iii) maintaining religious institutions as independent, self-governing bodies.120 114 Maher at 476. 115 Id at 479. 116 374 U.S. 398 (1963). 117 435 U.S. 618 (1978). 118 Br. National Education Association, p. 3. 119 In a separate brief, the ACLU noted that scholarshi ps supporting clergy training would by default be unequal across religions due to differences acro ss clergy training practices. p. 18. 120 Br. National Education Association, p. 3. See also Breyers dissenting opinion in Zelman v. Harris supra 536 U.S. 717-29. See also e.g. Everson v. Board of Educ. Of Ewing 330 U.S. 1, 53 (1947) (Rutledge, J., dissenting): Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another.
88 As a result, in constitutional terms, ther e is significant difference between a state legislatures refusal to provide public funding for an individual s training for the priesthood or ministry, consistent with Maher and its progeny; and a legislatures refusal to provide a secular benefit to a priest or minister because of that individuals religious status or activities, contrary to Sherbert and McDaniel.121 Furthermore, Washington legislat ures decision not to apply tax money to clergy training is an acceptable practice in church-state relationships;122 and it is clear that the Founding Fathers did not intend the Fee Exercise Clause to mandate state-funded clergy training or other support for religious education.123 Lockes supporters recognized that there are so me circumstances when denial of a benefit can be discriminatory; but they argued that th is was not the case with the Washington Promise Scholarship. That program does not discriminate on the basis of religion allowing scholarship recipients to attend any accredited school including pe rvasively religious schools.124 The program does not prohibit religious exercise.125 The Promise Scholarship program does not engage in viewpoint discrimination because it is a neutral prohibition against any form of clergy training.126 121 Id. ., p. 17. 122 Br. American Civil Liberties Union, p. 14; Br. Vermont et al., p. 4. 123 Br. American Civil Liberties Union, p. 14; Br. National Education Association, p. 1; Br. National School Boards Association, p. 6. 124 Br. American Civil Liberties Union, p. 20. 125 Id ., noting that there are thre e categories of discrimination against religious exercise: a) Laws that criminalize religious practice are almost always unconstitutional: Lukumi 508 US at 523 (animal sacrifice); b) Laws that make it legally impermissible to exercise secular rights are usually unconstitutional: McDaniel v. Paty 435 U.S. 618 at 621 (1978) [constl right to seek public office; Bowen v. Roy 476 U.S. 693 (1986) [no constitutional right to withhold SSN yet receive poverty benefits]; a nd 3) Laws that make a religious ex ercise more expensive are generally constitutional. Braunfeld v. Brown 366 U.S. 599 (1961) [Orthodox Jewish objections to Sunday closing laws because they have to clos e on Saturday rejected]. 126 Id ., p. 22.
89 Washington is not seeking to suppress reli gious ideas. A student is not denied a scholarship for taking religion courses or attending a college whose curriculum is permeated with religious ideas. The state only withholds a subsidy for theological training as such; it has not committed religious ideas to an ideological gulag.127 Finally, the goal of the Washington policy is not to communicate di sfavor of religion, as alleged by the Ninth Circuit Court,128 but to further an interest in neutrality among religions and the promotion of religious liberty for all taxpayers.129 Washingtons scholarship program is not designed to suppress dangerous ideas,130 nor are laws to ensure the separation of church and state aimed at the suppression of religion. C ountless decisions of the Court have relied upon the Establishment Clause to inva lidate laws, not with a goal of s quelching religion, but out of a legitimate desire to maintain church-state separation.131 Denial of a subsidy to a consti tu tionally protected activity is not an unconstitutional penalty This argument is closely related to the previous issue. On one had, what is the relationship between permissible and mandatory; specifically, if sc holarship aid were allowed, is it required? Lockes supporters argued permitted aid is not mandatory. On the other hand is the question whether denial of aid to a constitutio nally protected activity is an unconstitutional penalty against that activity. T hus, does the refusal to provid e a scholarship for ministerial training create an unconstitutional penalty upon such training? Lockes supporters, citing U.S. v. American Library Assn,132 Rust v. Sullivan ,133 and Regan v. Taxation without Representation ,134 again argued that denial of a benefit does not constitute a penalty. 127 Br. American Jewish Congress, p. 7. 128 Davey v. Locke 299 F.3d 748 (9th. Cir. 2002), p. 10153. 129 Br. American Civil Liberties Union, p. 27; Br. American Jewish Congress, p. 5. 130 Regan 461 U.S. at 550. 131 Br. Vermont, et al. p. 8-9. See, e.g. School Dist. of Abington Twp. V. Schemp 374 U.S. 203, 217-21 (1963). 132 123 S.Ct 2297 (2003).
90 In U.S. v. American Library Assn the issue at hand was the Childrens Internet Protection Act (CIPA) that implemented federal funding restrictions on libraries that failed to install software to block obscene or pornographi c images and to prevent minors from accessing material harmful to them. The plaintiffs on th e case, a group of libraries, patrons, Web site publishers, and related parties, sued the government challenging the const itutionality of CIPAs filtering provisions arguing that they violated the First Amendment because the filtering software requirement constituted a content-base d restriction on access to a public forum.135 This argument was upheld by the United States District Court for the Eastern District of Pennsylvania but reversed by the U.S. Supreme Court which asserted instead that, a library provides Internet access for th e same reasons it offers other library resources: to facilitate research, learning, and recrea tional pursuits by furnishing materials of requisite and appropriate quali ty. The fact that a library reviews and affirmatively chooses to acquire every book in its collection, but does not review every Web site that it makes available, is not a constitutionally relevant distinction.136 Denying funding to libraries that failed to implement Internet filters was not unconstitutional because, A public library does not acquire Internet termin als in order to create a public forum for Web publishers to express th emselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to encourage a diversity of views from private speakers,137 but for the same reasons it offers other library resources: to fac ilitate research, learning, and recreational pursuits by furnishing 133 500 U.S. 173 (1991). 134 461 U.S. 540 (1983). 135 Am Library Assn v. U.S. United States District Court For The East ern District Of Pennsylvania, NO. 01-1303. Available online at http://www.paed.uscourts.gov/documents/opinions/02d0415p.pdf 136 U.S. v. Am Library Assn, 123 S.Ct 2297 (2003). Available online at http://supct.law.cornell.edu/supct/html/02361.ZO.html. 137 Citing Rosenberger supra, at 834.
91 materials of requisite and appropr iate quality. While patrons might be temporarily blocked from viewing certain sites, they could easily request that bloc king be removed temporarily.138 The District Court viewed unblocking and disabling as inadequate because some patrons may be too embarrassed to request them.139 But, the Court opined, the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment.140 Thus, denial of funding under CIPA is not unconstitu tional. In the same way, denying funding to ministerial students is not unconstitutional. Rust v. Sullivan addressed Section 1008 of the Public Hea lth Service Act which specified that none of the federal funds a ppropriated under the Act's Title X for family-planning services "shall be used in programs where abor tion is a method of family planning."141 Here the Court ruled that the Government can, without violatin g the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way.142 Furthermore, the Court stated, within broad limits, when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.143 In then end, Section 1008 was upheld because, the government is not denying a benefit to anyone, but is 138 Id 139 201 F. Supp. 2d, at 411. 140 Supra, U.S. v. Am Library Assn. 141 500 U.S. 173 (1991). Available at http://sup ct.law.cornell.edu/supct/html/89-1391.ZS.html. 142 Id. 143 Id ., citing Rust v. Sullivan, 500 U.S. 173, 194 (1991).
92 instead simply insisting that public funds be spent for the purposes for which they were authorized.144 Finally, Regan v. Taxation Without Representation addressed the application by the organization Taxation Without Representation (TWR), a nonprofit corporation organized to promote its view of the "public interest" in th e area of federal taxation, to the IRS for a nonprofit tax exemption.145 The application was denied by the IRS, because it appeared that a substantial part of TWR's activities would consist of attempting to influence legislation.146 TWR sued arguing this was unconstitutional. In its ruling the Court again observed, TWR is certainly correct when it states that we have held that the governmen t may not deny a benefit to a person because he exercises a constitutional right.147 But, The [tax] Code does not deny TWR the right to receive deductible contributions to support its nonlobbying activit y, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise a constitutional right.148 So denial of funding is not unconstitutional. Furthermore, Lockes supporters argued, funding is not required even if the lack of funding puts some restrictions on th e actual exercise of a constitutional right.149 Citing Harris v McRae150 the National Education Association argued, Although the liberty protected by the Due Pr ocess Clause affords protection against 144 Id 145 See 501(c)(3) of the Internal Revenue Code of 1954. 146 Regan v. Taxation without Representation, 461 U.S. 540. 147 See Perry v. Sindermann 408 U.S. 593, 597 (1972). 148 Regan supra 149 Br. Anti-Defamation League, p. 11. 150 448 U.S. at 297.
93 unwarranted government interfer ence with freedom of choice in the context of personal decisions, it does not confer an entitlement to su ch funds as may be neces sary to realize all the advantages of that freedom.151 Ultimately, the Free Exercise Clause is written in terms of what the government cannot do to the individual, not what the individual can exact from government.152 Davey has not been harmed by the states policies, which neither burdens his religious activity nor suppresses religious expression. Davey is still fully able to study for the minist ry, but is not being subsidized to do so.153 Because Davey was able to continue his studies in the absence of the scholarship, he is unable to argue that his reli gious exercise was suppressed. Daveys situation can be contra sted with the situation in Sherbert v. Verner154 which involved a substantial burden on Free exercise rights, when a Seventh Day Adventist employee was fired for refusing to work on Saturday. She was subsequently unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits. The State Commission then denied appellant's application on the ground that, due to her religious obser vance of Saturdays, she would not accept suitable work when offered, and its action was sustained by the St ate Supreme Court. The U.S. Supreme Court disagreed, however, asserting that the South Carolina statute abridged appellant's right to the free exercise of her religion. Because the statute actively penalized Sher berts religious behavior the Court ruled in her favor. 151 Br. National Education Association, p. 11. 152 Br. American Jewish Congress, p. 6-7, citing Lyng v. Northwestern Indian Protection Assn 485 U.S. 439 (1988). 153 Br. Anti-Defamation League, p. 9; Br. Na tional School Boards Association, p. 14. 154 Sherbert v. Verner 374 U.S. 398 (1963) (a Seventh-Day Adventist was fired by her employer because she would not work on Saturday).
94 In Daveys case, however, as Judge McKeown observed in her dissent, Davey has sustained no substantial burden; he continues to pursue his double major in Pastoral Studies and Business Management;155 therefore, none of his religious behavior was penalized or even significantly impeded. Unlike the plaintiff in Sherbert who was left unemployed, uncompensated, and ultimately unemployable, the only way in which respondent suffers is that the state will not pay for his continuing religi ous vocational training. The Court has previously distinguished the governments refusal to s ubsidize particular pr otected activity from Sherberts broad disqualification from receipt of public benefits.156 Another possible precedent reject ed by Lockes supporters was McDaniel v. Paty .157 Paty, a candidate for delegate to a Tenness ee constitutional convention, sought to have an opponent who was a Baptist minister disqualifie d from serving as delegate under a Tennessee statute that made the qualifica tions of constitutional convention delegates as the identical to those for membership in the State House of Representatives, thus invoking a Tennessee constitutional provision barring "[ m]inister[s] of the Gospel, or priest[s] of any denomination whatever.158 "In McDaniel, the plaintiff was forced to choos e between the free exercise of his religious beliefs and the exercise of his constitutional right to hold public office. Respondent has not been forced to choose between two competing constitutional rights.159 Once again in contrast, Washingtons progr am left Davey free to pursue religious instruction. That he must do so using priv ate funds does not render the states program 155 App. 39a (dissenting opinion).. 156 Id See also Harris v. McRae 448 U.S. 297 (1980) at 317 n.19. 157 McDaniel v. Paty 435 U.S. 618. 158 Tn. Const., Art. 9, 1. 159 See 435 U.S. at 626 ([T]he State has conditioned the exercise of one on the surrender of the other.).
95 unconstitutional.160 Therefore, [a]t most, Washingtons law fails to reduce the monetary cost of Daveys studies. But, such a conseque nce presents no Free Exercise problem.161 In addition, Davey can both obtain the benefits of the scho larship and pursue his th eology degree. He may seek one degree with his scholarship money wh ile pursuing a theology degree at a different school utilizing his own funds. This is closely analogous to Regan where TWR could maintain its tax-exempt status if it incorporated a sepa rate entity to perform its lobbying activities.162 As in Regan Davey can obtain the benefits of the program and exercise his religious beliefs. That such a choice may be difficult or less financially attractive, does not present a concern of constitutional dimension.163 Furthermore, the reasoning of th ese decisions is simple: "although government may not place obstacles in the path of a [person's] exercise of freedom of [speech], it need not remove those not of its own creation."164 The Promise Scholarship Program does not es tablish a pu blic forum, so public forum rulings do not apply to this case Daveys supporters had argued th at the denial of the Promis e Scholarship functioned as a de facto restraint on Daveys ability to express his faith by pursuing the mi nistry and that this denial was a violation of the Limited P ublic Forum rulings related to religious communications.165 In response, Lockes supporters argued th at the free speech issue of limited public forum does not apply to this situa tion. According to the public-forum doctrine, government officials have less authority to restri ct speech in places that by tradition have been 160 Br. National School Boards Association p. 15; Br. Vermont, et al. p. 5 and p, 10-12. 161 Br. Vermont, et al. p. 7 citing Braunfield v. Brown 366 U.S. 599, 605 (1961). 162 Regan fn. 6. 163 Br. Vermont, et al. p. 8. 164 Harris supra at 316. 165 Br. Black Alliance, p. 10-13; Br. United States Conference of Catholic Bishop s, p. 5-6; Br. Florida, p. 14-17.
96 open for free expression. In Perry Education Assn v. Perry Local Educators Assn, the Supreme Court stated, In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the stat e to limit expressive activity are sharply circumscribed.166 In a limited public forum, federal, st ate, or local government designates a place for expressive purposes. When the government designates such a forum, it is generally subject to the same free-speech stan dards as a traditional public forum.167 Regardless, the limited public forum doctrine applies only to speech and expressive behavior that are not implicated in this case.168 Lockes supporters argued that the benefit received by Davey is not access to a forum, but a paid theological education. Th us, public forum decisions such as Rosenberger do not apply.169 According to the Nationa l Education Association, there is no basis in either Rosenberger or Velasquez,170 in any decision of this Court, in accepted practice, or in reason, for the proposition that where, as here, a State decides to establish a college scholarship program, the State is required to publicly fund in all the myriad fields of higher educ ation, and that its determination not to fund religious college education dis torts the overall scholarship program or interferes with the usual and proper f unctioning of the program.171 In creating the Promise Scholarship, goal of the Washington legi slature was not to facilitate private speech or create a public fo rum. To create a non-tradit ional public forum, the government must make an affirmative choice to open up its property for use as a public 166 Perry Ed. Assn. v. Perry Local Educators' Assn ., 460 U.S. 37 (1983). 167 For a detailed discussion of public forum doctrines, see L. Jacobs, The Public Sensibilities Forum, 95 Nw. U. L. Rev. 1357, 1370 (2001). 168 Br. Anti-Defamation League, p. 11; Br. Vermont, et al. p. 13. 169 Br. American Jewish Congress p. 7; Br. National School Boards Association, p. 17. 170 531 U.S. 542-44. 171 Br. National Education Association p. 4.
97 forum.172 The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a no n-traditional forum for public discourse.173 Instead, the Washington legislature created the program to help qualifie d applicants obtain college degrees.174 Finally, Lockes supporters furt her argued that rather than Rosenberger the appropriate precedent was American Library Assn. Like the Internet acce ss provided in that case the Washington program provides schola rships not to encourage a di versity of views from private speakers but to facilita te research and learning.175 Accepting Daveys position will flo od states with litigation According to Lockes supporters, the intere sts at stake in the case are not limited to Washington, but will affect the laws, regulations, and policies of a large number of states beyond Washington having similar c onstitutional provisions.176 An examination of state constitutions leads one to the conclusion th at of the states with such clauses, at least twelve177 have a stricter standard of separation than the Firs t Amendment of the U.S. constitution;178 and these states would be profoundly affected by accepting the arguments of Daveys supporters. 172 Am. Library Assn 123 S.Ct, at 2305 (emphasis in source). 173 Id ., quoting Cornelius v. NACCP Legal Def. & Educ. Fund 473 U.S. 788, 802 (1985). 174 Br. National School Boards Association, p. 17. 175 Br. National School Boards Association p. 18, citing American Library Assn 123 S. Ct. at 2305 (quoting Rosenberger 515 U.S. at 834 (1995). 176 Br. Anti-Defamation League, p. 22. 177 Alaska, California, Delaware, Hawaii, Idaho, Michigan, Minnesota, Missouri, Nebraska, South Dakota, Virginia, and Washington. 178 Br. Anti-Defamation League, p. 23, fn10; see also Viteritti, J. Blaines Wake: School Choice, The First Amendment and State Constitutional Law, 21 Harv. J.L. & Pub. Poly 657, 681 n.110 (1998).
98 For example, budget limitations at the state level would make it im possible to fund all programs; thus states would have to fund some programs and not others. This will force the courts to define the boundaries of such deci sion-making and allocation to ensure neutrality.179 Many states might then have no choice but to sh ut down distribution of f unds entirely to avoid litigation.180 Furthermore, a ruling in favor of Davey coul d endanger the heart of the nations social services system.181 For example, the Charitable Choice movement allows religious groups to compete for government funding alongside other providers. But the dominance of majority religious groups in the US indicates that it will be functionally impossible for governments to administer such programs without violating both the Esta blishment Clause and the Free Exercise Clause.182 The potential for social conflict among religions related to charitable choice programs are very real. According to the 2001 Pew Research Center for the People and the Press report Faith Based Funding Backed, But Church-State Doubts Abound Americans generally support faith-based groups receivi ng tax dollars to provide social services but that support does not extend to all religious groups equally. Forty-six percent of those surveyed opposed Muslim or Buddhist groups receiving government funding and fortyone percent also opposed the participation of the Mormon Church in governme nt aid programs. The survey showed both a clear bias for traditional J udeo-Christian groups as well as serious reservations regarding participation by non-Judeo-Christian orga nizations in government-funded programs.183 179 Id ., p. 15 180 Id 181 Id ., p. 13 182 Id ., p. 14 183 Pew Research Center for the People and the Press, Faith Based Funding Backed, But Church-State Doubts Abound, Apr. 10, 2001, pp 12-13, at http://peo ple-press.org/reports/display.php3?ReportID=15.
99 Blaine Amendment History As stated earlier, the briefs in support of Locke generally accep t the claim that the Washington Prom ise Scholarship Program provision denying aid to ministeria l students reflects Article I, Section 11 of the Washington Constitution that states Blaine Amendment. Lockes supporters, however, saw a very di fferent history of this clause than did Daveys supporters. First, Lockes supporters point out that the so-called Blaine Amendment language originated long before Blaines failed amendmen t. Michigan adopted a no-funding provision in its 1835 constitution even though the state lacked a significant number of Catholic parochial schools and the enactment came before the wave of Catholic immigration.184 Furthermore, Catholic and Presbyterian clergy were instrumental in the movement to establish universal nonsectarian schooling at both the coll egiate and common school levels.185 The fact that the language of the Blaine Amendments pre-dates the Blaine period is telling. According to Lockes supporters, Wash ington Constitution Article I, Section 11, along with other similar clauses in state constitutio ns, reflects, among other sources, Virginias Act for Establishing Religious Freedom of 1786. This Act asserts: that to compel a man to furnish cont ributions of money for the propagation of opinions which he disbelieves, is sinful a nd tyrannical; that even the forcing him to support this or that teacher of his own re ligious persuasion, is depriving him of the comfortable liberty of giving hi s contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry thos e temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labors for the instruction of mankind.186 And later, 184 Br. Historians and Law Scholars, p. 27, n40 citing Cooley, T., Michigan: A History of Governments 8th ed., 1897, p. 306-329. 185 Id at 309-311. 186 Va. Code Ann. 57-1. Online at http://religiousfreedom.lib.virginia.edu/sacred/vaact.html.
100 Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, pla ce, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but th at all men shall be free to profess, and by argument to maintain, their opi nions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.187 Thomas Jefferson and James Madison, authors of this Act were responding to an attempt by the Virginia Assembly to impose a tax to support of houses of worship and teachers of religion, including teachers in pr ivate religious schools.188 The Act gradually gained support from Baptists, Presbyterians, Jews, a few Anglicans, people who were tired of religious conflict and freethinkers among others.189 James Madisons Memorial and Remonstrance of 1785190 presented before the Virginia General Assembly garnered support for Jefferson's bill. Among other principles, the Memorial declared, Because we hold it for a fundamental and unde niable truth, that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violen ce. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This ri ght is in its nature an unalienable right.191 Somewhat amended,192 the Virginia Assembly adopted the Act on January 16th, 1786. According to Lockes supporters, foundational principles and documents were not the only source for the kind of no compulsory support principle embodied in Article 1, 11 of the 187 Va. Code Ann. 57-1 cited in Br. American Civil Liberties Union, p. 15; Br. Historians and Law Scholars, p. 1617. The text of the Act is availa ble online at http://religiousfreedom. lib.virginia.edu/sacred/vaact.html. 188 Id at 17, citing Douglas Laycock, Nonpreferential Aid to Religion: A False Claim About Original Intent, 27 Wm & Mary Rev 875, 897 & n.108 (1986); Thomas Buckley, Church and State in Revolutionary Virginia 17761787 (Charlottesville: University Press of Virginia, 1977), p. 133. 189 E.S. Gaustad, Faith of Our Fathers: Religion and the New Nation Harper & Row, New York NY, (1987), P. 141-149. 190 http://religiousfreedom.lib.virgini a.edu/sacred/madison_m&r_1785.html. 191 James Madison, A Memorial and Remonstrance June 20, 1785. Available online at http://www.law.ou.edu/us history/remon.shtml. 192 Gaustad, supra p. 149-151.
101 Washington Constitution; real world situations showed communities grappling with religious funding issues and ultimately abando ning the practice of allowing stat e funds to flow to religious institutions. For example: In 1822 Bethel Baptist Church in New York secured a state grant to build a school. The Free School Society, officia lly nonsectarian though Pr otestant influenced, objected that the grant impose[ d] a direct tax on our citizen s for the support of religion.193 After considering the challenge, the New York legislative Committee on Colleges, Academies and Common Schools recommended in 1824 that the legislature discontinue funding for denominational schools.194 The Legislature accepted this recommendation.195 As the Historians and Law Scholars observe, what is significant a bout this example is that opposition to funding of sectarian schools arose in the context of a request made by a Protestant school.196 In another interesting exam ple from 1830, again in New York, the Methodist Charity School and the Roman Catholic Orphan Asylum each petitioned for a share of the school fund to support their respective programs.197 The Free School Society once again objected arguing, one of the objects aimed at in all such schools is to inculcate the particular doctrines and opinions of the sect having management of them.198 The Common Council approved payment to the Catholic Orphan Society on the apparent theory th at the funds primarily supported the care of the 193 Br. Historians and Law Scholars, p. 21. 194 Id ., p. 22. 195 William O. Bourne, History of the Public School Society of the City of New York (London: Wm. Wood and Co. 1870), p. 70 72, cited by Historians, p. 22. See also John W. Pratt, Religion, Politics, and Diversity: The ChurchState Theme in New York History (Ithaca, NY: Cornell Univer sity Press, 1967), p. 167. 196 Br. Historians and Law Scholars, p. 22. 197 Id. ., p. 23. 198 Memorial and Petition of the Mayor, Alderman, and Commonality of the city of New York, in Bourne, supra, at 66, cited by Historians at n.30, p. 23.
102 orphans not their education; how ever, the Methodist request wa s denied on the grounds that public funds could not pay for sectarian education.199 These examples raise a related point: opponent s of the so-called Blaine Amendments assert that the term sectarian functioned in the latter half of the Nineteenth Century as a code word for Catholic.200 However, in these examples, the term sectarian is clea rly applied to both Catholic and Protestant activities alike. Therefore, the assertion of the Blaine opponents that sectarian was a term of anti-Catholic animus is not always correct. Instead, according to the Historians and Law Scholars, th e popular understanding of the time is that a sectarian school was any religious school in which particular doctrines were taught.201 Specifically, they observe, referring to the events of 1830, [t]he epis ode again indicates that all parties viewed the notion of sectarian education and the accompanying bar on its fundi ng in generic terms, applying to all religious schools.202 In fact, as the Historians br ief observes, in states such as Wisconsin the common school movement, the debate over sec tarian practices in those scho ols, and the appearance of a Blaine Amendment in the state constitution al l pre-date the appearance of parochial schools.203 Even critics of the common schools who might be looking for grounds to s upport their criticisms documented no anti-Catholic hos tility during the development of the Wisconsin school 199 Id at 145, 148 cited by Historians, p. 24. 200 Thomas, J. Mitchell v. Helms 530 U.S. 793 (2000) 151 F.3d 347, p.30 citing Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992). See also Br. Common Good, p. 4; Br. Becket Fund, p.15 18, citing a number of rulings that determined the King James version of the Bible was not sectarian and therefore did not run afoul of state Blaine Amendments. 201 Br. Historians and Law Scholars, p. 23. 202 Id p. 24. 203 I. p. 27 citing Alice E. Smith, 1 The History of Wisconsin 588-589 (1985); Richard N. Current, 2 The History of Wisconsin 162-169 (1976); Joseph A. Ranney, Absolute Common Ground: The Four Eras of Assimilation in Wisconsin Education Law, Wis. L. Rev 791, 793, 796-97 (1998).
103 system.204 This pattern was also true in Michigan wh ere at the same time as the drafting of its 1835 constitution the Protestant Home Missionary Society was reporting that Catholic activity was not a concern in the upper Midwest.205 Furthermore, Catholic as well as Protestant clergy were both involved in the drive to establish nonsectarian educa tion as the norm at the common school and college levels.206 A third reason for disavowing the connec tion between the Washington clause and Nineteenth Century anti-Catholicism is that the appearance of no-funding clauses pre-dates the era of anti-Catholicism. For example, "Michiga n incorporated a Blaine Amendment provision in its 1835 constitution207 even though there were few Catholic parochial schools in Michigan and the wave of Catholic immigration had yet to take place.208 The Michigan Constitution and its Blaine Amendment then served as the mode l for similar clauses in Wisconsin (1848),209 Indiana (1851),210 Minnesota (1857),211 and Oregon (1857),212 all states without significant 204 Id ., citing Lloyd P. Jorgenson, The Founding of Public Education in Wisconsin, (Madison, WI: State Historical Society of Wisconsin, 1952), p. 68-93. 205 Ray Allen Billington, The Protestant Crusade, 1800-1860 (Peter Smith Publishers, 1938), n28, at 130; cited in Br. Historians, p. 27. 206 Tomas M. Cooley, Michigan: A History of Governments 8th Edition,. (NY: Houghton, Mifflin and Co., 1897), p. 306 329; cited in Historians, p. 27. 207 Mich. Const. of 1835, Art. I, 5. No money shall be drawn from the treasury for the benefit of religious societies, or theological or religious seminaries. 208 Br. Historians and Law Scholars, p. 26. 209 Wisc. Const. of 1848, Art. 1, 18: The right of every man to worship Almighty God according to the dictates of his own conscience, shall never be infri nged, nor shall any man be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consen t; nor shall any control or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship, nor shall any money be drawn from the treasury for the benefit of religious societies or theological or religious seminaries. 210 Ind. Const. of 1851, Art. 1, 2-4: All men shall be secured in the natural right to worship Almighty God according to the dictates of their own consciences. No law sh all, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience. No preference sh all be given, by law, to any creed, religious society, or mode of worship; and no man shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.
104 conflicts over parochial school funding at the time;213 and, it should be noted, 20-plus years prior to Blaines failed federal amendment. In Washington the first Constitution was ratified by the people of Washington in 1878 but because the Washington territory did not beco me a state that year, that Constitution was superseded by statehood and the Constitution of 1889.214 However, the 1878 Constitution contains Washingtons first statement of a no-co mpulsory support clause in Art. 5, 4: All persons have a natural and indefeasib le right to worship God according to the dictates of their own consciences. No pers on shall be compelled to attend, erect, or support any place of worship against his c onsent; and no preference shall be given by law to any religious society; nor shall any in terference with the righ ts of conscience be permitted.215 Likewise, the first official Washington St ate Constitution of 1889 contains a similar clause: Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every indi vidual, and no one shall be molested or disturbed in person, or propert y, on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licen tiousness, or justify 211 Minn. Const. of 1857, Art. 1, 16: The right of every man to worship Go d according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesia stical ministry, against his consent; no r shall any control of or interference with the rights of conscience be permitte d, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries. 212 Ore. Const. of 1857, Art. 1, 2-6: All men shall be secure in the natural right, to worship Almighty God according to the dictates of their own consciences. No law shall in any case whatever co ntrol the free exercise, and enjoyment of the religious opinions, or interfere with the right s of conscience. No religious test shall be required as a qualification for any of trust or profit. No money shall be drawn from the Treasury for the benefit of any religious, or theological institution, nor shall any money be appropriated for the payment of any religious services in either house of the Legislative Assembly. No person shall be render ed incompetent as a witness, or juror in consequence of his opinions on matters of religion; nor be questioned in any Court of Justice touching his religious belief to affect the weight of his testimony. 213 Br. Historians and Law Scholars, p. 27. 214 See Meany & Condon, Washington's First Constitution, 9 Wash.Hist.Q. 145 (1918), reprinted in E. Meany & J. Condon, Washington's First Constitution, 1878, and Proceedings of the Convention 19 (1924). 215 Wash. Const. of 1879, Art. 5, 4.
105 practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for, or applied to any religious worship, exercise or instruction, or the support of any religious establishment. No religious qualification shall be required for any public office, or employment, nor shall any person be incompetent as a witness, or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice to uching his religious be lief to affect the weight of his testimony.216 That each of these clauses from Michigan through Washington spanning 1835 to 1889 employ very similar language suggests a pattern of origins and influe nce much larger than antiCatholicism in the last half of the Nineteenth Century. This no-funding principle is based on concep ts of religious liberty and liberty of conscience that arose prior to a nd independently of the beginnings of Catholic schooling or the rise of the nativist movement in the United States.217 In fact, it is a product of the same Eighteenth Century political thinki ng that gave rise to the Decl aration of Independence and the Constitution of the United States. As such, the no -funding principle is deeply embedded in the American Constitutional tradition. Fourth, simply labeling Washingtons cons titutional provision a Blaine Amendment does not make it constitutionally suspect. While some supporters of the Blaine Amendments generally and the Washington clau se specifically may have desire d to prevent public funds from supporting parochial schools, these clauses ha ve a broader and non-di scriminatory scope.218 The Washington clause in particular, the subject of this case, reflects a lack of hostility toward 216 Wash. Const. of 1889, Art. 1, 11. 217 Br. Historians and Law Scholars, p. 15-16. 218 Br. Vermont, p. 28, n. 12; citing State ex rel. Frazier, 173 P. at 35 (Washington, 1918); Derek Green, Note, Does Free Exercise Mean Free State Funding? In Da vey v. Locke, the Ninth Circuit Court Undervalued Washingtons Vision of Religious Liberty, 78 Wash L. Rev 653, 680 n.271 (2003).
106 religion generally219 and there is no evidence that the fr amers of Article I, section 11 were motivated by anti-religious or Catholic animus.220 Although hostility toward Catholic immigrants and parochial schools may have mo tivated some supporters of Blaines proposed Amendment, that hostility was not the only basi s for the amendment nor the only rationale for supporting it. Similarly, there is a lack of evid ence that anti-Catholic animus was behind the passage of the Enabling Act of 1889.221 As with any historical event, it is easy to identify one current out of myriad historical streams and to attribute causation. We see this in the assertion that the Blaine Amendments are the products of anti-Catholic animus. However, this kind of uni-casual assertion fails, because Art. I, section 11 of the Washington Constitution, like many similar clauses in other state constitutions enacted during the la tter half of the Nineteenth Century, arose out of a complex dynamic of forces that intersec ted over the issue of American public schooling and cannot legitimately be identified as the pr oduct of only one cause or factor.222 According to the brief for Locke of the Hi storians and Law Scholars, the events that culminated in Blaines proposed amendment to the U.S. Constitution emerged from a controversy in Cincinnati, Ohio over an 1869 d ecision by the school board to eliminate daily Bible readings from the King James Bible fo llowed by a moment for prayer. Watched by the entire country,223 the Cincinnati Bible War reignited a debate over the relig ious character of 219 Id ., citing Robert Utter and Edward Larson, Church Stat e on the Frontier: The History of the Establishment Clause in the Washington Constitution, 15 Hastings Const. L.Q. 451, 472 (1988). 220 Historians, p. 38ff. 221 Id ., p. 13. 222 Id ., p. 12. 223 Nation IX (November 18, 1869), 430, cited in Helfman, H. M, The Cincinnati "Bible War," 1869-1870 ( Ohio History: The Scholarly Journal of the Ohio Historical Society, Volume 60, No.4, October 1951).
107 public schooling over whether sch ools should retain their Protes tant nonsectarian complexion or whether they would become truly secula r and open to all faiths and nationalities.224 This religious neutrality paradigm is seen clearly in the closing speech of John Stallo, one of the attorneys defending the sc hool boards decision: The spires will point to the heaven, the unm uffled church bells will speak of God, as before; the free Bible will have free sway; but in a free State, in free churches or religious schools, by the side of free secular schools. And I hope my friend will not regard it as a calamity if the son of a Pres byterian or Methodist, after his intercourse with the child of a Jew, Catholic, or unbelieve r, should turn to the Scriptures with the feeling that the truth is broader than the leaves of any book 225 Following the Cincinnati case, the New York and Chicago school boards prohibited Bible reading and religious instruction in their respective schools, with similar bans being adopted in Michigan and other northern states.226 So the problems of prayer and Bible reading as well as public funding of religious activ ities in the common schools are once again seen to pre-date Blaine. The Blaine Amendment itself was the culminat ion of eight years of heightened attention to and conflict over the School Question.227 Arising in the years following the Civil War, the School Question involved more than just concerns about tax dollars goi ng to Catholic schools; instead, that issue was part of a larger debate over what role the federal government should have in public education, over whether public edu cation should be available for all social and economic classes and races, over deciding how to provide adequate ongoing funding of the new common school systems, and over whether the cont ent of public education should be secular, 224 Br. Historians and Law Scholars, supra at 31-32. 225 Stephan F. Brumberg,, "The Cincinnati Bible War (1869-1873) and its Impact on the Education of the Citys Protestants, Catholics, and Jews" The American Jewish Archives Journal, LIV, No. 2 11-46. (2003). 226 New York Times Dec. 9, 1872, at 8; cited in Brumberg at 32. 227 Id., at 30.
108 nonsectarian (i.e., watered-down Protes tantism), or be more religious.228 Regarding his own proposal, James Blaine himself, said that the amendment he put forth, which putatively formed the basis for the state Blaine Amendments, was mean t to be fair alike to Protestant and Catholic, to Jew and Gentile, leaving the religious fa ith and conscience of every man free and unmolested.229 Interestingly enough, the Solidarity Center, in its brief for Davey cited the leading Secularist and Freethinker, Robe rt Green Ingersoll, who gave the famous Plumed Knight speech in support of the Presidential nomination of this close friend, U.S. Senator James G. Blaine, at the 1876 Republican National Convention. In the speech, Ingersoll remarked that the Republicans of the United States demand a man who believes in the eternal separation and divorcement of church and school.230 The Solidarity Center then obs erved, [i]t is likely that, over the course of their seven-year frie ndship prior to Blaines 1875 campaign for a Constitutional ban on the allocation of public school funds to religi ous institutions, Ingersoll (one of historys most persuasive orators) influenced Blaine to adopt a strictly secularist attitude toward the public financing of education.231 This statement from a Davey support and Blaine Amendment opponent clearly seems to support the argument that the Blaine Amendment and its supposed progeny were neutral in in tent and that it was not anti-Catholic hostility that inspired Blaine and other supporters of Blaine-type amendments. 228 Ward M. McAfee, Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s. (State University of New York Press, 1998), p. 105-124. 229 Robert F. Utter & Edward Larson, Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution, 15 Hastings Const. L. Q. 451 at 473 n.110 (quoting C. Balestier, James G. Blaine: A Sketch of His Life (New York: R. Worthington, 1884), p. 59; cited in Br. Anti-Defamation League, p. 24, fn 11. 230 Robert Ingersoll, S peech at Cincinnatti, The Works of Robert G. Ingersoll Vol 9, 58 (1900); cited in Br. Solidarity Center for Religion and Justice, p. 23. 231 Id p. 23.
109 Lockes supporters also argued that it is inaccurate to speak of a Blaine Amendment, particularly as a concept or model for the En abling Act or state cons titutional provisions. Instead, the last quarter of th e Nineteenth Century saw numerous education-related proposals for constitutional amendments addressing religious practice in public schools and religion-based school funding: President Ulysses Gr ants strict neutrality proposa l; James G. Blaines original proposal; an alternative proposed by Democrats; secularist proposals and ultra-conservative religious proposals; the version passed by the House; and the failed Senate version all of which contained different wording and intents and all of which received different levels of opposition and support.232 Lockes supporters also agreed that the Washington Constitutional Provision emerged as part of the 19th century controversy over funding Catholic education, but they argued that it does not follow that it was impermissibly motivated by anti-Catholicism.233 The Catholic Church in the Nineteenth Century was offi cially opposed to church-state separation.234 This led to the fear that the growing popul ation of Catholics, theoretically required to place obedience to the church above obedience to the state, posed a threat to the s till insecure Republic.235 In this context, the American Jewish Congress brief argu ed that while The Catholic Church had every right to advance its political positions,236 opponents of this ordering of church-sta te relations 232 Br. Historians and Law Scholars, supra at 31. 233 Br. American Jewish Congress, p. 2. 234 Pope Pius VII, On a Return to Gospel Principles, 15 May 1800, Para. 18; Pope Gregory XVI, On Liberalism and Religious Indifferentism, August 1832, Para. 20; Pope Pius IX, Con demning Current Errors, 8 December 1864, Para. 3; Pope Pius IX, Syllabus of Errors, 8 December 1864, Para. 55; Pope Leo XIII, On Christians as Citizens, 10 January 1890, Para. 10. See also Appendix C. 235 Recall that the Blaine period was just a decade away from the Civil War and Reconstruction in the South which had ended in failure in 1877. See Eric Foner, Reconstruction: Americas Unfinished Revolution, 1863 1877 (Harper and Row, 1988). 236 American Jewish Congress, p. 9.
110 were entitled to forestall the possibility of a drastic reordering of the American church-state settlement with stringent anti -aid provisions without being condemned, retroactively, as bigots.237 Nineteenth Century efforts to restate and reinforce the Madisonian separation of church and state were not ra iling against a will-o-the-wis p, responding to the overheated imagination of demagogues, or scapegoating the innocent.238 They were responses to a legitimate fear which only in hindsight can be dismissed as unfounded that the Catholic Church sought exclusive political power, and that, if it could, it would esta blish itself as the sole official church.239 [See Appendix C] Finally, regardless of possible an ti-Catholic origins, the rela tionship of the past to the present is an appropriate reason to refuse to consider the origin of these Amendments as either the sole issue or even as the critical issue fo r determining the Constitutionality of the so-called Blaine Amendments: specifically, [a]ny initial an imus in the amendments has been purged by years of Washingtons reaffirmation to the prin ciples of separation of church and state.240 The provision before the Court in Locke v. Davey Article I, section 11 was amended in 1903, 1957, and again in 1993. Having been reconsidered an d reauthorized, the amendment is purged of whatever taints may have existed in the 1880s.241 Moreover, the mere fact that a law originally may have had a discriminatory purpose should not be permitted to abrogate the neutral role those laws have come to play in our poly-theistic society.242 237 Id .. at 2. 238 Id at 8. 239 Id at 9. 240 Br. Anti-Defamation League, supra, at 25. 241 Id at 25. 242 Id at 25. See also McGowan v. Maryland 366 U.S. 420, 445(1961) (the present purpose and effect of most [Sunday closing laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of
111 As can be seen from this analysis of the arguments presented to the Court, both sides agreed that the denial of th e scholarship to Davey was the direct result of the Washington legislatures understanding of Article I, Section 3 of the state constituti on the states Blaine Amendment. That understanding was written into the rules of the Promise Scholarship Program leading to the rule denying stat e funding for ministerial educati on, even to a person otherwise qualified for the scholarship attending a school othe rwise qualified to participate in the program. Clearly, the Washington Blaine Amendment here has adversely impacted one avenue by which state funds might flow to religious schools. As a result, however the Supreme Court ruled in Locke was going to have significant consequences for educational funding and state funding policies in general. particular significance for the dominant Christian sects, do es not bar the State from achieving it secular goals. To say that the States cannot prescribe Sund ay as a day of rest for these purpos es solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.).
112 CHAPTER 4 THE SUPREME COURT DE CISION IN LOCKE AND AN ANALYSIS OF ST ATE CONS TITUTIONS With widespread agreement that the denial of the Promise Scholarship to Davey resulted from the Washington state Blaine Amendment, a nd with seven of nine Justices on record as questioning the validity of state Blaine Amendments, Locke v. Davey which placed the Blaine Amendment at the heart of the case, was widely anticipated as the swan song for Blaine Amendments.1 This anticipation, however, was premature.2 On February 25, 2004 the Supreme C ourt delivered its decision in Locke determining that Washingtons exclusion of the pursuit of a devotional theology degree from its otherwiseinclusive scholarship aid program did not violate the Free Exerci se Clause. The Court asserted that this case involves the p lay in the joints be tween the Establishment and Free Exercise Clauses;3 that the Washington Promise Scholarship Pr ogram prohibition of ministerial study falls into the realm of state action that is permitted by the former but not required by the latter. The Court rejected Davey s contention that, under Lukumi ,4 the program is presumptively unconstitutional because it is not fa cially neutral with respect to religion asserting that accepting this claim would extend Lukumi and related cases well beyon d their facts and reasoning.5 This was because in Locke the states disfavor of religion6 is of a far milder kind than in Lukumi where the ordinance criminalized the ritualistic animal sacrifices of the Santeria religion. 1 Martha McCarthy, Room for Play in the Joints Locke v. Davey. Journal of Law and Education; Oct 2004; 33, 4; pg. 457. 2 McCarthy, 459. 3 Walz v. Tax Commn of City of New York 397 U.S. 664, 669. 4 C hurch of Lukumi Babalu Aye, Inc. v. Hialeah 508 U. S. 520 (1993). 5 Rehnquist, W. Decision of the Court in Locke v. Davey at p. 6. 6 Id The decision also questioned whether the Washington program could even be considered to disfavor religion.
113 Washingtons program imposed neither criminal nor civil sanctions on any type of religious activity. Likewise, the Washington program does not deny to minister s or to ministerial students the right to participate in community political affairs;7 nor does it require students to choose between their religious beliefs a nd receiving a government benefit.8 In this program, the Court asserted, the State has simply chosen not to fund a distinct cat egory of instruction.9 The Court further observed that even though the differently worded Washington Constitution draws a more stringent line than does the Federal Constitution, the interest it seeks to further is scarcely novel.10 The Court rejected Justice Sca lias argument in dissent that because generally available benefits are part of the baseline against which burdens on religion are measured11 and because the Promise Scholarship Program funds traini ng for all secular professions, the State must also f und training for religious professions.12 Instead, the majority asserted that training for re ligious professions and training for secular professions are not fungible.13 Training someone to lead a congregation, the Court noted, is an e ssentially religious endeavor,14 and majoring in devotional th eology is akin to a religious calling as well as an academic pursuit.15 7 See McDaniel v. Paty 435 U.S. 618. 8 See, e.g., Hobbie v. Unemployment Appeals Commn of Fla ., 480 U.S. 136 (1987). 9 Rehnquist, supra p. 7. 10 Id p. 8. 11 Scalia dissenting opinion, p. 2. 12 Id 13 Rehnquist, supra at 7. 14 Id 15 Id See also Calvary Bible Presbyterian Church v. Board of Regents 72 Wash. 2d 912, 919, 436 P. 2d 189, 193 (1967) (holding public funds may not be expended for that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct.); App. 40 (Davey stating his religious beliefs [were] the only reason for [him] to s eek a college degree).
114 In fact, the Court declared, there are few areas more significant for a States antiestablishment interests. Since the founding of the United States, there have been popular uprisings against procuring taxpaye r funds to support church leaders, which was characteristic of established religion. Perhaps the most famous exam ple of such public backlash is the defeat of the 1784 Bill Establishing A Provision for Teachers of the Christian Religion in the Virginia Legislature which sought to asse ss a tax for Christian teachers.16 This bill stipulated that the collectors of this tax were to record both the a ssessment paid and the society of Christians the person from whom he may receive the same so the funds (minus a collection fee) could be given to a religious teacher from the same sect.17 Against this bill, James Madison penned his famous Memorial and Remonstrance Against Religious Assessments in 1785 arguing that compulsory support for religious organizations was a violation of individual conscience.18 Following public outcry, the bill wa s rejected; and in stead, in 1786, the Virginia Bill for Religious Liberty, drafted by Thomas Jefferson, was enacted. This bill asserted, ... that to compel a man to furnish cont ributions of money for the propagation of opinions which he disbelieves, is sinful a nd tyrannical; that even the forcing him to support this or that teacher of his own re ligious persuasion, is depriving him of the comfortable liberty of giving hi s contributions to the particular pastor whose morals he would make his pattern, and whose pow ers he feels most persuasive to righteousness19 16 Reprinted in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 74 (1947) (supplemental appendix to dissent of Rutledge, J.); see also Rosenberger, supra, at 853 (Thomas, J., concurring) (purpose of the bill was to support clergy in the performance of thei r function of teach ing religion). 17 Patrick Henry A Bill Establishing a Provision for Teachers of the Christian Religion. Virginia House of Delegates, December 24, 1784, Broadside Manuscript Division, Library of Congress (133). [Online] http://www.loc.gov/exhibits/religion/f0504s.jpg. 18 Online at http://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html. See also Everson v. Board of Ed. of Ewing, 330 U. S. 1, 65, 68 (1947) (appendix to dissent of Rutledge, J.) (noting the dangers to civil liberties from supporting cl ergy with public funds). 19 Thomas Jefferson, Virginia Bill for Religious Liberty (1786). Online at http://1stam.umn.edu/main/historic/Virginia Bill for Religious Liberty.htm.
115 and guaranteed that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.20 Virginia was not alone dealing with this issu e. Most Eighteenth Century state legislatures struggled with the issue of esta blished religion; and most decide d to avoid such establishment and placed in their state constitutions prohibi tions against using tax funds to support the ministry21 [See Table 4-1]. For the Supreme Court in Locke that is a critical point: That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces the conclusion that religious instruction is of a di fferent ilk from other professions.22 Moreover, the Court observed, taken as a w hole the Promise Scholarship Program goes a long way toward including religion in its benefits since it permits student s to attend pervasively religious schools so long as they are accredited, an d students are sti ll eligible to take devotional theology courses under the programs current guide lines. The Court also obs erved that nothing in the history or the text of th e Washington Constitution or in the programs operation suggests hostility towards religion. In fact, Washington was id entified as solicitous in ensuring that its constitution is not hos tile toward religion.23 Furthermore, the Court asserted, it found nothing in 20 A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950). See also See R. Butts, The American Tradition in Religion and Education 15.17, 19.20, 26.37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 (2003) (In defending their religious liberty against overreaching clergy, Americans in all re gions found that Radical Whig ideas be st framed their argument that statesupported clergy undermined liberty of conscience and should be opposed). 21 Rehnquist, supra at 9. 22 Id at 9-10. 23 Citing State ex rel. Gallwey v. Grimm 146 Wash. 2d 445, 470, 48 P. 3d 274, 286 (2002) ([I]t was never the intention that our constitution should be construed in any manner indicating any hostility toward religion. (citation omitted)), and at least in some respects, its constitution prov ides greater protection of reli gious liberties than the Free Exercise Clause, see First Covenant Church of Seattle v. Seattle 120 Wash. 2d 203, 223.229, 840 P. 2d 174, 186.188 (1992) (rejecting standard in Employment Div., Dept. of Human Resources of Ore. v Smith, 494 U. S. 872 (1990), in favor of more protective rule); Munns v. Martin 131 Wash. 2d 192, 201, 930 P. 2d 318, 322 (1997) (holding a city ordinance that imposed controls on demolition of historic structures inapplicable to the Catholic
116 Washingtons overall approach th at indicates it single[s] out anyone for special burdens on the basis of religious calli ngs as Justice Scalia contended.24 As a result, [g]iven the historic and substantial state inte rest at issue, it ca nnot be concluded that the denial of funding for vocational religious instruction alone is inherently constitutiona lly suspect. Without a presumption of unconstitutionalit y, Daveys claim must fail.25 Therefore, the States interest in not funding the pursuit of devotiona l degrees is substantial, and the exclusion of such funding places a relatively minor burden on Promise Schol ars. If any room exists between the two Religion Clauses, it must be here.26 Thus, Daveys petition for state funding was lo st; a decision with ma jor implications for policy-makers in all fifty states. Likewise, this de cision, in determining that Article I, Sec. 11 of the Washington Constitution was not a Blaine Amendment opens up new possibilities and challenges for educational funding programs and policies many had deemed closed. The Locke decision was a surprise to many.27 In the earlier Mitchell and Zelman rulings, a substantial majority of the sitting Justices ha d already raised questions about the validity of Blaine Amendments; and some had actively ca lled for the abolition of these clauses. Locke seemed ideally positioned to give to those Justices an opportunity to rule decisively on the Blaine Amendments. Instead, Chief Justice Rehnquist pr eviously on record as a Blaine opponent closed the door on a sweeping determination of unconstitutionality by declaring that the Washington clause in question was not a Blaine Amendment: Churchs plan to demolish an old school building and build a new pastoral center because the facilities are intimately associated with the churchs religious mission). 24 Rehnquist, supra at 10-11 citing Scalia (dissent) at 6. 25 Id at 11-12. 26 Id at 12. 27 McCarthy, supra P. 459.
117 The amici contend that Washingtons C onstitution was born of religious bigotry because it contains a so-calle d Blaine Amendment, which ha s been linked with antiCatholicism. As the State notes and Davey does not dispute, however, the provision in question is not a Blaine Amendment. The enabling Act of 1889, which authorized the drafting of the Washington Constitution, requ ired the state constitution to include a provision for the establishment and mainte nance of systems of public schools, which shall be free from sectarian control. Th is provision was included in Article IX, of the Washington Constitution (All schools maintained and supported wholly or in part by the public funds shall be forever free from sectarian control or influence), and is not at issue in this case. Neither Da vey nor amici have established a credible connection between the Blaine Amendmen t and Article I, the relevant constitutional provision. A ccordingly, the Blaine Amendmen ts history is simply not before us.28 In Locke Blaine amendments generally and the Washington Blaine Amendment specifically, were placed before the Court. However, in its majority opinion, the Court declared that because there was no hist ory of anti-Catholic animus ev ident in adoption history the Washington state adoption of Article 1, Section 11 therefore that clause, operationalized in the Washington Promise Scholarship program wa s not a Blaine Amendment. Thus, the constitutionality of Blaine Amendments is now tie d to the presence or ab sence of anti-Catholic motives on the part of state legislatures. Therefor e, determining whether or not a particular state clause is an unconstitutional Bla ine amendment will require state-by-state historical analysis and legal challenge; and the re sults of those state level anal yses and challenges may give substantial flexibility to legislatures and po licymakers and thereby have a powerful impact on educational and other funding programs on the issue of religious participa tion in those programs. 28 Rehnquist, Opinion of the Court p. 10, fn 7, references removed. However, Article I, 11 states, No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment a phrase also implicated in Blaine language; and it is this clause that is implemented in the Washington Promise Scholarship statute (Wash. Rev. Code 28B.10.814, "No aid shall be awarded to any student who is pursuing a degree in theology.").
118 Central to the arguments being put forth against Blaine Amendments, an argument ultimately accepted by the Court, is that such clauses are unconstitutional because they were implemented in the last quarter of the Nineteenth Century specifically to bar the flow of tax dollars into Catholic schools. That argument further asserts th at as exercises of legislative prerogative designed to adversel y impact a specific religious group, these clauses violate the First Amendment to the Constitution and the principle of religious neutrality that has been articulated in recent Supreme Court decisions.29 It is unquestionable that a clau se specifically targeting a particular reli gious group or practice for penalty is unconsti tutional barring some compe lling State interest. Thus, an examination of Nineteenth Century state constitutions is required to determine whether or not the clauses being categorized as Blaine Amendments originate in the context of anti-Catholic political activity, or if they contain clearly anti-Catholic wording demonstrating unconstitutional intent, or if it can be demonstrated that th e primary intent behind adopting the clause were manifestly anti-Catholic in intent Unfortunately for Blaine opponent s, it is clear from previous discussion30 that there were many currents drivi ng the adoption of Blaine Amendments, most of which were deliberately neutral in language and, we have to assume under the circumstances, intent. The neutral language proposed by Grant and promulgated by Blaine was discussed in Chapter 2. Likewise, the decidedly non-neutra l language proposed by Congress the language that subsequently failed to be adopted makes clear the fear of some that the neutral language would prove a threat to the ge neralized Protestant practices common in public schools. Thus, 29 e.g. Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 234 F.3d 945, reversed. See also Everson v. Board of Education, 133 N.J.L. 350, 44 A.2d 333. Available online at http://www.law.cornell.edu/supct/html/h istorics/USSC_CR_0330_0001_ZO.html. 30 See Chapter 2.
119 while anti-Catholic attitudes undoubt edly influenced the passage of some Blaine Amendments, a religiously neutral formulation of policy toward p ublic schools also played an explicit role, thus invalidating any blanket statement that all such Amendments were or are, in the modern context derived from non-neutral legislative intent. Finally, other clauses in Nineteenth Century state constitutions relate d to the relationship between c hurch and state make clear that many constitutional policy makers worked diligently to strike a balance between the role played by government and the religious sentiments of th e vast majority of Americans, which were conflicting and sometimes mutually exclusive. The categorization of a particular state cons titutional provision as a Blaine Amendment can be plausibly approached from various perspe ctives such as when the provision was adopted, whether it is directly traceable to the afterm ath of the failed attempt to amend the federal constitution, how state courts have interprete d it, and so on. This variety of definitional perspectives probably explains why different treatments of the subject find different numbers of state Blaine Amendments.31 Likewise, Blaine Amendments are not the only possible restriction on the flow of tax do llars into religious in stitutions and, in fact, the so-called Blaine Amendments are arguably a subset of clauses limiti ng the delivery of state resources to religious organizations. In light of the Locke ruling, this analysis of state constitution al clauses having the potential to adversely affect the flow of tax dollars into religious institutions focuses on clauses most likely to be considered Blaine Amendm ents. For this study, 169 state constitutions spanning the period 1776 to 1920 were examined for this study. This date range encompasses the beginning of the American constitutional period following independence and extends to the end 31 See, e.g., Toby J. Heytens, School Choice and State Constitutions, 86 Va. L. Rev. 117, 140-52 (2000) note 38, at 123 & n.32 (discussing counting discrepancies); see also supra notes 91, 95.
120 of the decade of Arizona statehood, which ends th e period of territorial expansion following the Civil War [see Appendix B for a list of states and dates of statehood]. In addition, all 50 current state constitutions were examined for the mode rn context of potential Blaine Amendments. During the first pass reading, all clauses touching upon religion were identified. From this index, clauses were identified that sp ecifically implicated church-sta te funding concerns. These clauses were then evaluated and categorized by wordi ng into categories selecting for those clauses having greatest potential to affect the transfer of state tax dollars to religious institutions [Table 4-2]. Of particular interest for this study were clauses cont aining the word sectarian; a putatively anti-Catholic code word deemed by both opponents and suppor ters alike to be characteristic of a Blaine Amendment [Appendix A]. The language of both the Unites States Constitution and of state constitutions was profoundly affected by Eighteenth and early Nineteenth Century struggle s to both assert the critical role played by Christianity in the ea rly colonies while at the same time to clearly delineate the proper relationship between church a nd state. This balance was critical, because the intertwining of church and st ate was, for many American colonists, characteristic of the despotisms they had escaped.32 In particular, American const itutional language s ought to clearly repudiate the practices of established churches common in Sixteenth a nd Seventeenth Century Europe. Of particular importance in the early Unite d States was the principle of no compulsory support for religion language cr itical in the development of many state Blaine Amendments. An established church is a c hurch officially sanctioned and supported by the government of a country; a situation that makes membership of the political community coincident with 32 Morison, supra p. 210.
121 submission to the locally dominant creed.33 Perhaps the key characteristic of an established church is compulsory support through the collection of tax revenues by the government which are then given to a church, to many churches or to different re ligious organizations. Against this model of an established church was the model of church-state separation and the toleration or other religious traditions. Pl eas for religious toleration and the right of individual conscience emerge very early in American colonial history; and the seriousness of the struggle for tolerance plays an important ru le throughout the Eighteen th and Nineteenth Centuries and influences much state constitutional language. For example, in 1657, Peter Stuyvesant, Gove rnor of New Netherlands (now New York) issued an edict forbidding anyone in the colony allow a Quaker meeting to be held in his house or even to accept a Quaker as a guest, under penalty of a large fine. When a colonist in the town of Flushing held such a meeting, he was arrested, fined and banished from the colony. These events generated a written protest fr om the citizens of Flushing known as The Flushing Remonstrance, perhaps the earliest demand for freedom of religion made by American colonists to their political superiors.34 [See Appendix D] Among many elements of the Flushing Remonstrance stand the assertions that: Wee are bounde by the law to do good unto al l men, especially to those of the household of faith. And though for the present we seem to be unsensible for the law and the Law giver, yet when death and the Law assault us, if wee ha ve our advocate to seeke, who shall plead for us in this case of conscience betwixt God and our own souls; the powers of this world can neither attach us neither excuse us, for if God justifye who can condemn and if God condemn there is none can justifye. 33 John T. S. Madeley, A Framewor k for the Comparative Analysis of Church-State Relations in Europe. West European Politics vol. 26. #1 (2003). p. 27. 34. New York Yearly Meeting of the Religious Society of Friends A History of Flushing Meeting. [online] http://www.nyym.org/flushing/history.html.
122 The law of love, peace and liberty in the st ates extending to Jews, Turks and Egyptians, as they are considered sons of Adam, which is the glory of the outward state of Holland, soe love, peace and liberty, extending to all in Christ Jesus, condemns hatred, war and bondage. And because our Saviour sayeth it is impossible but that offences will come, but woe unto him by whom they cometh, our de sire is not to offe nd one of his little ones, in whatsoever form, name or title hee appears in, whether Presbyterian, Independent, Baptist or Quaker, but shall be glad to see anyt hing of God in any of them, desiring to doe unto all men as we desire all men should doe unto us, which is the true law both of Church and State; for our Saviour sayeth this is the law and the prophets. Therefore if any of these said persons come in love unto us we cannot in conscience lay violent hands upon them, but gi ve them free egresse and re gresse unto our Town, and houses, as God shall persuade our conscien ces, for we are bounde by the law of God and man to doe good unto all men and evil to noe man. And this is according to the patent and charter of our Towne, given unto us in the name of the States General, which we are not willing to infringe, and violate, but shall houlde to our patent and shall remaine, your humble subjects, the inhabitants of Vlishing.35 Of course, there were, across the early Unite d States, many different opinions on the right of establishment vs. non-establishment; but over time, the non-establishment position became the dominant paradigm in the United States. In Virginia, as discussed earlier, after a ten-year struggle, which included the publication in 1785 of the famous Memorial and Remonstrance Against Religious Assessments.36 [Appendix E] The Memorial was promulgated in opposition to a movement in the Virginia legislature to pass, A Bill establishing a provision for Teachers of the Christian Religion Among its principles the Memorial declared, The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate,37 [T]he same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects. [T]hat the sa me authority which can force a citizen to 35 The Flushing Remonstrance December 27, 1657. New York Yearly Meeti ng of the Religious Society of Friends, online at: http://www.nyym.org/flushing/remons.html. 36 http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html. 37 Id 1.
123 contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever;38 and, Above all are they to be considered as retain ing an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal fr eedom to those whose minds have not yet yielded to the evidence which has convinced us.39 The Memorial was successful and, in response, the legislature finally passed Thomas Jeffersons Statute of Religious Liberty [Appendix F] which declared, no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever.40 The principles of religious to leration and liberty won suppor t at the highest levels of government. In 1790, the Jewish Congregation of Newport Rhode Island sent to newly inaugurated President George Washington a letter praising him and the principles of religious freedom established with the new government: Deprived as we heretofore have been of the invaluable rights of free Citizens, we now with a deep sense of gratitude to the Al mighty disposer of all events behold a Government, erected by the Majest y of the People -a Government, which to bigotry gives no sanction, to persecution no assistan ce -but generously affording to all Liberty of conscience, and immunities of Citizenship: -deeming every one, of whatever Nation, t ongue, or language equal parts of the great governmental Machine: -This so ample and extensiv e Federal Union whose basis is Philanthropy, Mutual confidence and Public Virtue, we ca nnot but acknowledge to be the work of the Great God, who ruleth in the Armies of H eaven, and among the Inha bitants of the Earth, doing whatever seemeth him good For all these Blessings of civil and religi ous liberty which we enjoy under an equal benign administration, we desire to send up our thanks to the Ancient of Days, the great preserver of Men .41 38 Id 2. 39 Id 4. 40 http://www.uark.edu/depts/comminfo/www/tj.html. 41 Letter from Moses Seixas of the Touro Synagogue in Newport Rhode Island to President George Washington (1790). Available online at http://www.au.org/site/DocServer/Washingtons _Letter_To_Touro_Synagogue.pdf?docID=146.
124 To which Washington responded emphasizing freedom of conscience and asserting that religious liberty must go beyond si mply a condescending tolerance: The Citizens of the United Stat es of America have a right to applaud themselves for having given to mankind examples of an enlarg ed and liberal policy: a policy worthy of imitation. All possess alike liberty of conscien ce and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by th e indulgence of one class of people, that another enjoyed the exercise of their inherent national gifts. For happily the Government of the United States, which give s to bigotry no sanction, to persecution no assistance requires only that they wh o live under its protec tion should demean themselves as good citizens, in giving it on all occasions th eir effectual support.42 Thus, the principle of religious liberty won widespread support through the new states except in much, though not all, of New England. Ironically, given the co mmonly told story of Massachusetts Pilgrims seeking re ligious liberty, New England states were, on the whole, the last holdouts of established religions against the trend toward religious freedom. There were passionate advocates of religi ons liberty in New England su ch as Thomas Witherspoon43 who was forever preaching that mere toleration wa s not enough, since tolerati on implied superiority and condescension; the only proper principle for a republic was complete liberty to worship how one choose, or not at all; and ev ery church should be supported by its members or invested funds without help from the ta xing power of the state.44 But Witherspoon was far from the only voice in the debate. Arrayed against him were stat esmen and clergy who supported the established order who argued, as did Reverend Nathaniel Ward of Massachusetts, He that is willing to tolerate any Religion, or discre pant way of Religion besides hi s own, unless it be in matters entirely indifferent, either doubts of his own, or is not sincere in it. He that is will ing to tolerate 42 Letter from President George Washington to the Touro Synagogue Congregation (1790). Online at http://www.au.org/site/DocServer/Washi ngtons_Letter_To_Touro_Synagogue.pdf?docID=146. Note that this letter precedes ratification of the Bill of Rights. 43 John Witherspoon was a signer of the Declaration of Independence representing New Jersey. He was the only active clergyman to sign the Declaration. 44 Morrison, S.E., et al., The Growth of the American Republic, Volume I, 7th Edition. NY, Oxford, 1980, p. 215.
125 any unsound Opinion, that his own may also be to lerated, though never so sound, will for a need hang Gods Bible at the Devils girdle.45 For a time, Congregational clergy successfully argued that the town church, like the town meeting and the town school, had made New England great, and should be equally respected.46 While Rhode Island had always enjoyed religious liberty and Vermont quickly adopted that principle, Massac husetts, Connecticut, and New Hamp shire set up a sort of quasiestablishment, according to which everyone had to pay a tax to the Congregational church of the parish within which he lived, unless he belonged to a recognized dissenting church. In that case, the dissenting pastor received the tax.47 But the debate continued and the established churches of New England did not last long: until 1817 in New Hampshire, 1818 in Connecticut, and 1833 in Massachusetts.48 Regardless, this struggle over church-state relations in the early United States had at its core the issue of compulsory support for religi on; and by the end of th e second decade of the Nineteenth Century, clauses asse rting that there would be no co mpulsory support for religious institutions were triumphant. For example, prior to 1800, ten of sixteen states included no compulsory support clauses in the state constitutions ; and five of those states had reiterated this statement in multiple constitutions [Table 4-3]. By 1825 seven additional states (seventeen of twenty-four states) had adopted th is principle [Table 4-4]; and by 1850 four more states had also 45 Perry G. E. Miller, The Contribution of the Protestant Churches to Religious Liberty in Colonial America, Church History (1935), p. 2. 46 Morrison, 215-216. 47 Id ., 216. 48 Id.
126 accepted this principle [Table 4-5]. Thus, by 1850, well before any anti-Catholic hysteria, much less Blaine's influence, 23 of 30 states had made this principle a part of their constitutions. Taking a different approach, the Ohio Cons titution of 1851 required that no religious or other sect, or sects, shall ever have any exclusive right to, or control of, a ny part of the school funds of this state.49 In 1855, Massachusetts added to its constitution a statement that funds raised for common schools shall never be appropriated to any religious sect for the maintenance exclusively of its own schools.50 In 1859 Kansas added its own similar language providing that no religious sect or sects shall ever control any part of the common-school or University funds of the State.51 Oregon did the same later the same year asserting that no money shall be drawn from the Treasury for the be nefit of any religeous [sic], or theological institution and forbidding that any money be appropriated for the pa yment of any religeous [sic] services in either house of the Legislative Assembly.52 The fifteen years from 1850 1875 saw similar clauses adopted by South Carolina,53 Illinois,54 Pennsylvania,55 Missouri,56 Alabama57 and Nebraska.58 The Pennsylvania and 49 Ohio Const. Art. VI, 2 (added 1851). 50 Mass. Const. Art. XVIII (1855). 51 Kansas Const. Art. VI, 8 (1859). This language was preserved and moved to Art. VI, 6 in 1966 52 Ore. Const. Art. I, 5. 53 S.C. Const. Art. X, 5 (1868) (providing that no religious sect or sects shall have exclusive right to or control of any part of the school-funds of the State), renumbered and amended by S.C. Const. Art. XI, 4 (1973). 54 Ill. Const. Art. VIII, 3 (1870) (forbidding, inter alia, appropriation of public funds for anything in aid of any church or sectarian purpose) (renumbered art. X, 3 (1970). 55 Pa. Const. Art. III, 18 (1874) (forbidding appropriations for charitable, educational or benevolent purposes to any denominational or sectarian institution, corpor ation or association); id. art. III, 29 (1967). 56 Mo. Const. Art. XI, 11 (1875) (forbidding any payment of public funds in aid of any religious creed, church or sectarian purpose and to any school controlled by any religious creed, church or sectarian denomination whatever) (renumbered art. IX, 8).
127 Nebraska Constitutions were further amended in 1963 and 1976, respectively, to impose more specific restrictions agai nst the use of public funds for religious purposes.59 Illinois also adopted an unusually detailed provision barring any paymen ts in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever and also forbidding any grant of land, money, or other pe rsonal property to any church or for any sectarian purpose.60 Thus, roughly half the state constitu tions containing what is now labeled Blaine Amendments had those clauses in place prior to Blaines failed federal amendment. Likewise, in each of these examples, the language is clearly speaking of all religions and denominations and not solely denying st ate funds to Catholic institutions. In the latter half of the 1870s, the period most closely asso ciated with the failed federal Blaine Amendment, seven more states, Colorado,61 Texas,62 Georgia,63 New Hampshire,64 57 Ala. Const. Art. XIII, 8 (1875) (forbidding educational funds being appropriated to, or used for, the support of any sectarian or denominational school); id. art. XIV, 263 (amended 1901). 58 Neb. Const. Art. VIII, 11 (1875) (f orbidding sectarian instruction in any school or institution supported in whole or in part by [public school funds] and state acceptance of any grant of property to be used for sectarian purposes); id. art. VII, 11 (amended 1976). 59 Neb. Const. Art. VII, sec.11 (amended 1976); Pa. Const. art. III, 29 (added 1963) 60 Ill. Const. Art. VIII, 3 (1870) (renumbered art. X, 3 (1970). 61 Colo. Const. Art. IX, 7 (adopting an anti-funding prov ision identical to article VIII, 3 of the 1870 Illinois Constitution, article 8, 33 (1874)); id. art. V, 34 (1 876) (prohibiting charitable, industrial, educational or benevolent appropriations to any denominational or sectarian institution or association, much like article III, 18 of the 1874 Pennsylvania Constitution (1874). 62 Tex. Const. Art. I, 7 (providing that no money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theo logical or religious seminary); id. art. VII, 5(a) (barring school funds from ever being appropriated to or used fo r the support of any sectarian school). 63 Ga. Const. Art. I, 1, para. XIV (1877) (including a similar prohibition). 64 N.H. Const. Pt. 2, Art. LXXXIII (1877) (enacting the same type of provision).
128 Minnesota,65 California,66 and Louisiana67 also adopted anti-funding provisions. The provisions in the Georgia and Minnesota C onstitutions are unusually detailed about the range and character of excluded institutions. The Georgia Constitution st ates, no money shall ever be taken from the public Treasury, directly or indirectly, in aid of any church, sect, cult, or denomination of religionists, or of a ny sectarian institution.68 Likewise, the Minnesota Constitution states, In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets or any particul ar Christian or other religious sect are promulgated or taught.69 From 1880 to the end of the century another thirteen states adopted religiously sensitive anti-funding provisions. For inst ance, in 1880 Nevada added Ar ticle XI, section 10 to its constitution, providing that no publ ic funds of any kind or charac ter whatever, State, County or Municipal, shall be used for sectarian purpose.70 In 1885, Florida asserted in its Declaration of Rights that no public revenue shall ever be taken from the public tr easury directly or indirectly in aid of any church, sect or religious denom ination or in aid of any sectarian institution.71 65 Minn. Const. Art. XIII, 2 (enacting the same provision). 66 Cal. Const. Art. IV, 3 0 (1879) (providing that no governmental body shall ever grant anything to or in aid of any religious sect, church, creed, or sectarian purpose); Cal. Const. art. XVI, 5, art. IX, 8 (amended 1966). 67 La. Const. Art. LI (1879) (providing that no money shall ever be taken from the public treasury, directly or indirectly in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof); id. Art. CCXXVIII (providing that no school funds shall be appropriated to or used for the support of any sectarian schools); cf. La. Const. Art. CXL (1868) (prohibiting appropriation to any private school or any private institution of learning whatever but lacking any refere nce to sectarian schools). Louisiana's anti-funding provisions were deleted from its constitution in the 1974 revi sion. See La. Const. art. I, 8 (paralleling federal religion clauses). 68 Ga. Const. Art. I, 1, para. 14 (1877). 69 Minn. Const. Art. XIII, 2. 70 Nev. Const. Art. XI, 10 (added 1877). 71 Fla. Declaration of Rights 6 (1885), amended by Fla. Const. Art. I, 3.
129 Therefore, as Justice Rehnquist no ted in the majority opinion in Locke [m]ost States that sought to avoid an establishment of religi on around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry.72 The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy.73 This trend continued throughout the Nineteenth Centur y. Thus, the precursors of the so-called Blaine Amendments predate the development of, and are therefore not driven by, anti-Catholic hostility in the last half of the Nineteenth Centur y. What then explains the patterns of adoption of these phrases denying tax dollars to religious inst itution? Perhaps the best way to answer this question is to analyze the patter n itself, identifying when states adopted particular clauses and examining the geographic distributio n pattern of such adoption. A key pattern emerges when looking at stat e constitutional clauses declaring that there can be no public support for religious instit utions. On the surface, no public support clauses appear closely related to the no compulsory supp ort clauses. However, with one exception, such public support clauses appear onl y in the Nineteenth Century and were not as widely adopted [Table 4-6] as statements explicitly rejec ting compulsory support [Tables 4-3 to 4-5]. For example, Article 18 of the New Jersey Cons titution of 1776 states, ...nor shall any person, within this Colony, ever be obliged to pay tithes, taxes, or an y other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the 72e .g. Ga. Const., Art. IV, (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted 1993) (.All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own.); Pa. Const., Art. II (1776) in 5 id., at 3082 (.[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent.); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, (1802), in 5 id., at 2910 (similar). 73 Justice William Rehnquist, Locke v. Davey Opinion of the Court p. 9.
130 maintenance of any minister or ministry. Afte r New Jersey, from 1830 to 1875 a series of states, beginning with Virginia and then clustering in the mid-West (Michigan, Wisconsin, Indiana, Minnesota, and Missouri), adopt no public support language, with Oregon doing so somewhat later. Another geographic cluster can be identi fied in the northwest, in 1889 (Idaho, South Dakota, Washington, and Wyoming). This geographic cluster also reflects the partitioning of the northwest and Congressional attenti on to territorial statehood in the aftermath of the Civil War and Reconstruction; but sharing of constitutional c oncepts and phrases in a regional cluster is nonetheless clear. Closely related to the more general no co mpulsory support phrasing is the specific statement that government shall make no appr opriation for church schools [Table 4-7]. For example, the Pennsylvania Constitution of 1874 st ates, No appropriation shall be made to any charitable or educational instit ution not under the absolute control of the Commonwealth .74 Similar clauses appears only seven times begi nning first in 1873 in Pennsylvania and being infrequently adopted but moving slowly East to West until once again we see a small Northwest cluster in 1889. While in isolati on, these clauses could be seen as targetin g Catholic schools, when seen in context with other No Compulso ry Support Clauses the overall impact of these clauses is clearly tied to the ongoi ng efforts to effectively delineat e church and state relations and is therefore, decidedly more neutral. A similar, though less definitive pattern is seen with the clauses stati ng that there shall be no grant of land or aid to religious institutio ns. For example, the Illinois Constitution of 1870 states, nor shall any grant or donation of land, money or other personal property ever be made 74 Article 3, 17.
131 by the State or any such public corporation to any church or for any sectarian purpose.75 This language was adopted by only six st ates and also starts to the ea st and moves fitfully across the country to the northwest [Table 4-8]. Yet another interesting cluste r shows up starting with the 185 1 Ohio clause that, The general Assembly shall make such provisions by taxation, or otherwise, as with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State, but no religious or other sect or sects shall ever have any exclusive right to, or control of, any part of the school funds of this State.76 This exclusive right phrasing was used only in five states funds [Table 4-9], but all cluster toward th e center of the country along the Mississippi River. Still another infrequently used constitutional pr ovision uses a variety of different phrasings to state that public schools are to be kept free of sectarian influe nces [Table 4-10]. This type of clause is evidenced from the Nevada constitution of 1864 which reads, The Legislature shall provide for a unifo rm system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school dist rict neglecting to establish an d maintain such a school, or which shall allow instructions of a sectaria n character therein, may be deprived of its proportion of the interest of the public sc hool fund during such neglect or infraction.77 Used by only six states, as before the general tr end is adoption from east to west, but this time exclusively west of the Mississi ppi River and with the now comm on cluster in the northwest. Interestingly enough, these last two clauses, ta ken in isolation, leave open the possibility of some distribution of state funds to a variety of religious institutions, and thus no exclusive 75 Art. VIII, 3. 76 Art. VI, 2. 77 Art. XI, 2.
132 right. However, a majority (six of ten)78 of the states using these clauses also have no compulsory support clauses in the state c onstitutions complicating this possibility. The pattern of these constitutional words and phr ases demonstrates conclusively that state legislatures throughout the country and throughout the Nineteenth Century were wrestling with the issue of church state relati ons as manifested in the question of whether or not tax dollars should be allowed to flow to religious in stitutions. The controve rsy over the 1876 Blaine Amendment and its purported pr ogeny must be seen in this context and cannot be localized either in time to periods of anti-Catholic activ ity or in spirit to anti-Catholic intent. Of course, the East to West pattern is, on one hand, the natural result of the growth of the United States which also moves generally from th e East coast of North American to the West coast. However, the different geographical distribu tion of the clusters associated with different clauses suggests that some additional cause or causes are operating. In fact, these different temporal and geographic clusters de monstrate that states are sharing ideas, either intentionally or simply as a result of news traveling across the states; an idea that seem quite obvious: why recreate the wheel when your neighbor has already created the template? This suggests a better understanding of and impetus for the state Blaine Amendments th an the oft-asserted accusation of anti-Catholic animus. Indeed, this type of diffu sion of innovation has significan t support in political science literature. DiMaggio and Powell79 posit a theory called "institutional isomorphism" which asserts that organizations functioning in large institutionalized networks such as politics deal with 78 Arkansas, Kansas, Montana, Nebraska, Ohio, and South Dakota. 79 P. DiMaggio & W. Powell, The iron cage revisite d: Institutional isomorphism and collective rationality in organizational fields. American Sociological Review 48, 147-160 (1983).
133 uncertain environments by copying from each other.80 In a similar vein, Everett Rogers had noted, This dependence on the comm unicated experience of near peer s suggests that the heart of the diffusion process consists of the modeli ng and imitation by potential adopters of their network partners who have adopted previously.81 Likewise, Michael Mintrom and Sandra Vergari, in analyzing education reform efforts note, [M]ost potential adopters base their judgments of an innovation on information from those who have sound knowledge of it and who can explain its a dvantages and disadvantages.82 Thus they ask, How do policy en trepreneurs develop and sell thei r ideas to others? This is where the role of policy networks becomes paramount [P]olicy entrepreneurs operating at the state level will most often deve lop their ideas for policy innova tion through their conversations and interactions with members of interstate or external policy networks .83 According to Mintrom and Vergari, the results of thei r study show that the deliberations of legislatures in neighboring states increases the likel ihood of legislative consid eration of school choice;84 though it is important to note it is th e deliberations in neighb oring states that matters not whether or not the neighbor adopts the policy.85 Thus, political policy innovations often flow from one state to the next through formal and informal networks. Inde ed, if one legislature takes up a discussion the 80 Id p. 152; Organizations tend to model themselves after si milar organizations in their field that they perceive to be more legitimate or successful. 81 Everett Rogers, Diffusion of Innovations 4th ed. (New York: Free Press, 1995) cited in Michael Mintrom and Sandra Vergari, Policy Networks and Innovation Diffusion: The Case of State Education Reforms The Journal of Politics Vol. 60, No. 1 (Feb. 1998), p. 128. 82 Id 83 Id ., p. 130. Emphasis mine. 84 Id ., p. 144. 85 Id ., p. 145.
134 chance that nearby legislatures will both take up the same discussion and pass the associated legislation both increase.86 At the same time, given the preoccupation of the advocacy literature in opposition to the so-called Blaine Amendments with the asser tion that the word sectarian was code for Catholic87 that word should play the dominant or defini ng role in state Blaine clauses; but this is not the case. Instead, sectar ian is most commonly used in concert with other words and phrases, the net result of which is decidedly neutral and not surreptit iously anti-Catholic in either the Nineteenth or the Twentieth centuries. The word sectarian also has its own hist ory in American constitutional language. The term first appears in state constitutional language in Nevada in 1864. It is used again in 1868 in Georgia and South Carolina and becomes common after that, being used in eighty-five times in fifty-one constitutions adopted by twenty-seven states [Table 4-11]. The word sectarian, however, replaces the word sect used in earlier constitutions and it plays the identical role. Sect is first used in 1776 in Maryland, New Hampshire, and New Jersey and by Vermont in 1777. The word largely fades out by 1890 but lingers in Connecticut to 1955, Kansas to 1966 and Maine to 1988 [Table 412]. In clauses where both terms occur the overlapping meaning is apparent. For example, Article X, Sec. 5 of the South Carolina constitution of 1868 reads, No religi ous sect or sects shall have ex clusive right to, or control of any part of the school funds of the State, nor shall sectarian principles be taught in the public school. Here as in other examples, sectarian is simply an adjective drawing on the previous use of the term sect. 86 Id 87 See The Beckett Fund discussion of the South Dakota case Puckett v. Rounds as but one of many examples of this assertion being made: http://www.becketfund.org/index.php/case/13.html.
135 This transition from sect to sectarian is important because the word sect, as used in the Eighteenth and Nineteenth Ce ntury constitutions very clearl y refers to the variety of Protestant denominations found in the Ameri can colonies. For example, the Maryland Constitution of 1776 repeatedly refers to, any minister, public teacher, or preacher of the gospel, as such, or to any religiou s sect, order or denomination.88 Likewise, the Vermont Constitution of 1777 states, That all men have a natural and unalie nable right to wors hip ALMIGHTY GOD, according to the dictates of their own c onsciences and understanding, regulated by the word of GOD; and that no man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worshi p, or maintain any minister, contrary to the dictates of his conscience; nevertheless, ever y sect or denomination of people ought to observe the Sabbath, or the Lord's day, and keep up, and support, some sort of religious worship, which to them shall seem most agre eable to the revealed will of GOD.89 In fact, the New Hampshire Constitution of 1776 authorizes the collectio n of taxes to support churches stating, The people of this state have a right to impower, and do hereby fully impower the legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this state, to make adequate provision at their own expence, for the support and maintenance of public protestant teachers of piety, religion and morality: Provided notwithstanding, That the se veral towns, parishes, bodies-corporate, or religious societies, shall at all times ha ve the exclusive right of electing their own public teachers, and of contracting with th em for their support and maintenance. And no portion of any one particular re ligious sect or denomination, shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect or denomination. And every denomination of christians demeaning themselves quietly, and as good subjects of the state, shall be equally under the protection of the law: and no subordination of any one sect or denominati on to another, shall ever be established by law.90 88 Md. Const. of 1776, 34. 89 Vermont Constitution of 1777, Chap. I, 90 N. H. Const. of 1776, Art. I, VI.
136 Use of the term sect is similar through American history and the la st use is nearly identical to the first: the Maine Constitution or 1988 reads, All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no one sh all be hurt, molested, or restrained in his person, liberty, or estate fo r worshipping God in the manner and season most agreeable to the dictates of his own conscience, nor for his religious professions or sentiments, provided he does not disturb the public peace, nor obstruct others in their religious worship; and all persons demeaning themselves peaceably, as good members of the State, shall be equally under the protec tion of the laws, and no subordination nor preference of any one sect or denomination to another shall ever be established by law, nor shall any religious test be required as a qualification for any office or trust under this State; and all religious societies in this State, whether incor porate or unincorporate, shall at all times have the exclusive ri ght of electing their public teachers, and contracting with them for th eir support and maintenance.91 So it is incontrovertible that the word sect re fers to the variety of Protestant denominations. The Word sectarian appears for the first time in the 1864 Nevada Constitution: The Legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school dist rict neglecting to establish an d maintain such a school, or which shall allow instructions of a sectaria n character therein, may be deprived of its proportion of the interest of the public school fund during such negl ect or infraction; and the Legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public school. 92 Likewise, Article XI, Sec. 9 reads, No sectarian instruction shall be imparted or tolerated in any school or university that may be es tablished under this Constitution.93 Four years later, in 1868, the Georgia C onstitution adopts this new wording stating, No vote, resolution, law, or order, shall pass, granting a donation, or gratuity, in favor of any person, 91 Me. Const. of 1988, Art. I, 3. 92 Nev. Const. of 1864, Art. XI, 93 Nev. Const. of 1864, Art. XI,
137 except by the concurrence of two-thirds of each branch of the General Assembly, nor, by any vote, to a sectarian corp oration or association,94 These uses of the term sectarian might seem to support the theory of anti-Catholic intent if taken in isolation; but the Sout h Carolina Constitution, also of 1868, states, No religious sect or sects shall have exclusive right to, or control of any part of the school funds of the State, nor shall sectarian princi ples be taught in the public school.95 Thus, the juxtaposition of sect and sectarian carries forward the neutral stance of earlier constitutions. Sects is clearly plural, referring to the variety of Christian denominati onal groups and sectarian must be read in that light as refe rring back to those sects not s uddenly interjecting anti-Catholic animus. It is this trend that co ntinues through the remainder of the Nineteenth Century. The Alabama Constitution of 1875 states No money raised for the s upport of the public schools of the state shall be appropria ted to, or used for, the support of any sectarian or denominational school.96 The Colorado Constitution of 1876 similarly states, No appropriation shall be made for charitable, industrial, educational, or bene volent purposes to any person, corporation, or community not under the absolute control of the State, nor to any denominational or sectarian institution or association.97 The Idaho Constitution of 1890 rejects, aid of any church or sectarian, or religious society, or for any sectarian or religi ous purpose controlled by any church or sectarian or reli gious denomination whatsoever;98 and similar language is used in the 94 Ga. Const of 1864, Article III, 6.2. 95 S. C. Const. of 1868, Art X, 5. 96 Ala. Const. of 1875, Art. XIII, 8 (emphasis mine). 97 Col. Const. of 1876, Art. IX, 7. 98 Idaho Const. of 1890, Art. 9, 5.
138 Florida Constitution of 1885 which states: No preference shall be given by law to any church, sect or mode of worship, and no money shall ever be taken from the public treasury directly or indirectly in aid of any churc h, sect or religious denominati on, or in aid of any sectarian institution.99 In fact, the unquestionably neutral statemen t that no preference shall be given to any religious group is employed by twenty-thr ee states between 1776 and 1889 [Table 4-13]. Furthermore, in some states potentially non-neutral language found in one section is neutralized in another. For ex ample, the Oklahoma Constitution of 1907 in Article I, Section 5 states, Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and free from sectarian control; a clause refined by Article II, Section 5 which reads, No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for th e use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectar ian institution as such. Similarly, the Arizona Constitution of 1912, Art. XI, Section 7 reads, No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constituti on, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the state, as teacher, student, or pupil; but the liberty of conscience hereby secured shall not be so c onstrued as to justify practices or conduct inconsistent with the good order, peace, mora lity, or safety of the state, or with the rights of others; however, Article IX, Section 10 reje cts aid to, any churc h, or private or sect arian school, or any public service corporation, Likewise, the Nort h Dakota Constitution of 1981 states in Article VIII, Section 1, that the government shall make provision for the establishment and maintenance of a system of public schools which sh all be open to all children of the state of 99 Fl. Const. of 1885, Art. I, 6.
139 North Dakota and free from sectarian control, agai n raising the specter of non-neutral intent; but Article VIII, Sec. 5 then reads, All colleges, universities, and other educa tional institutions, for the support of which lands have been granted to this state, or which are supported by a public tax, shall remain under the absolute and exclusive contro l of the state. No money raised for the support of the public sch ools of the state shall be appropria ted to or used for the support of any sectarian school, suggesting a much less inimical intent. In a similar vein, any perception of antiCatholic code words in the South Dakota Constitution of 1889, in which Art. VIII, Sect ion 16, Art. XXII, Section 1, and Art. XXVI, Section 18 all use the word sec tarian unmodified must be qua lified by Article VI, Section 3 which precedes them: The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, pr ivilege or position on account of his religious opinions ; but the liberty of conscien ce hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of th e State. No person shall be compelled to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any re ligious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious so ciety or institution. The elegant defense of the righ ts of conscience and the assert ion of no compulsory support as well as the clear repudiation of preference to one religious gro up over another would seem to make clear that the sectarian or religious inst itutions of the final phras e encompass all religions and Christian denominations; and in this light must the rest of the state Constitution be understood. Thus, in each of these examples, apparent ly biased clauses must be read in the light of the rest of the document; which then make clear the neutral intent of each Constitution taken as a whole.
140 Overall, of the twenty-seven states in which the constitutions use the term sectarian from Nevada in 1864 to Texas in 2003, spanning eighty-five clauses and fifty-one constitutions, the term sectarian is refined by such neutral language in forty-five of the eight y-five specific clauses (51.7%) and neutral formulations charact erize twenty-four of th e twenty-nine states (82.75%). Thus, it must be concluded that the term sectarian, at least as it is used in state constitutions, is not some code word for Cathol ic; and that the vast majority of so-called Blaine Amendments reflect neutral religious intent. It is also instructive to no te that earlier Supreme Court ru lings recognized the neutrality of the terms sect and sectarian. For example, in it's 1899 decision in Bradfield v. Roberts the Court ruled, Whether the individuals who compose the cor poration under its charter happen to be all Roman Catholics, or all Methodists, or Presbyterians, or Un itarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the law of its incorporation, nor can the individual beliefs upon religious matters of the various incorporators be inquired into. Nor is it material that the hospital may be conduc ted under the auspices of th e Roman Catholic Church That the influence of any particular c hurch may be powerful over the members of a nonsectarian and secular corporation, incor porated for a certain defined purpose and with clearly stated powers, is surely not su fficient to convert such a corporation into a religious or sectarian body.100 Later in the same ruling the Court determine d, The act of Congress, however, shows there is nothing sectarian in the corporation, and 'the specific and limited object of its creation' is the opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatm ent and care of the corporation.101 Thus, an explicitly Roman Catholic hospital, ru n by the Sisters of Charity is nonsectarian because, it does not limit the exercise of its corporate powers to the members of any 100 Bradfield v. Roberts, 175 U.S. 291, at 298 (1899). 101 Id at 300
141 particular religious denomination, but, on the co ntrary, those powers are to be exercised in favor of anyone seeking the ministrati ons of that kind of an institution.102 The 1908 case Quick Bear v. Leupp,103 upholding payment to Catholic schools on a South Dakota Sioux reservation, provides another interesting example. In Quick Bear the Court ultimately determined that monies paid under treaty provision are not appropriations of tax funds but [i]t is the Indians' m oney, or, at least, is dealt with by the government as if it belonged to them, as morally it does;104 thus use in sectarian schools does not violate Constitutional limits. However, the Court clearly again employed th e term sectarian referring to the variety of denominations and not simply Catholic schoo ls. The Court cited the 1896 Appropriation Act statement, it is hereby declared to be the se ttled policy of the government to hereafter make no appropriation whatever for educ ation in any sectarian school,'105 but pointed out that, it is contended that the spirit of the Constitution requ ires that the declaration of policy that the government 'shall make no appropriation whatever fo r education in any sectarian schools' should be treated as applicable, on the ground that the actions of the Un ited States were to always be undenominational, and that, therefore, the govern ment can never act in a sectarian capacity.106 The Court also observed that, 'Some tim e before 1895 opposition developed to these contracts with denominational schools, on the ground that the public moneys of the United States, raised by taxation, should not be us ed for education in sectarian institutions.107 Thus, the 102 Id at 299. 103 210 U.S. 50 (1908). 104 Id at 80. 105 Id at 79. 106 Id. at un-numbered fn. Available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=210&page=50 107 Id
142 Court uses the terms sectarian, and de nominational as equivalents and prefers undenominational to non-sectarian.108 This is important because the Court also refers to different denominational schools and different denominations109 observing that Lutheran as well as Catholic schools were involved n Indian education on the Rosebud reservation. Thus, sectarian, in this instance, cl early refers to denominational sc hools of any kind and not simply Catholic schools. In still another example, Felix Fra nkfurter, in his concurring opinion in McCollum v. Board of Education wrote, The non-sectarian or secular public school was the means of reconciling freedom in general with religious freedom. The sharp c onfinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in th e strife of sects. The preservation of the community from divisive conflicts, of Gove rnment from irreconcilable pressures by religious groups, of religion from censors hip and coercion however subtly exercised, requires strict confinement of th e State to instruction other th an religious, leaving to the individual's church and home, indoctrination in the faith of his choice.110 Furthermore, in his McCollum dissent, Justice Stanley Form an Reed also understood the term sectarian to represent a diversity of religious organiza tions. Making reference to the Champaign Council on Religious Education, whic h included Jewish, Roman Catholic, and a number of Protestant churches, Reed wrote: When actual church services have always been permitted on government property, the mere use of the school buildings by a non-se ctarian group for religious education ought not to be condemned as an establishment of religion. For a non-sectarian organization to 108 Id at 81. 109 Id. at un-numbered fn. supra 110 Felix Frankfurter, McCollum v. Board of Education 333 U.S. 203 at 216-7 (1948) (concurring).
143 give the type of instruction here offered ca nnot be said to violate our rule as to the establishment of religion by the state.111 Thus, non-sectarian describe s an organization representing many religions including the Roman Catholic Church. At this point, it also becomes possible to suggest that the entire concept of Blaine Amendment, as currently used, is fundament ally flawed. While Blaine's failed federal amendment establishes a particular point in time and historical context for a specific expression of Constitutional thinking related to the flow of tax dollars into religious institutions, an examination of state constitutions makes clear that there is little legitimacy to localizing the Blaine issues to the latter qua rter of the Nineteenth Century. As a part of the long-standing Constitutional tradition wrestling with the se paration of Church and State, the Blaine Amendments are nothing more, a nd nothing less, than a legitimate continuance of that tradition. This point was clearly recognized by the Locke majority. This analysis of state constitutional clauses identified as potential Blaine Amendments suggests that proving anti-Catholic motive for any give n clause will be difficult at best. First, it is clear that the use of the term sectarian emerge s from earlier use of sect and that both terms are clearly presented as indicating the multiplic ity of Christian denominations and not the singling out of any one group. Second, the failed federal Blaine Amendment emerged from religiously neutral impulses responding to religious controversy in schools and supported by th e emergence of atheist and secularist, not to mention Liberal Christian, m ovements. Furthermore, it is clear that many Blaine clauses, such as the Washington clause at issue in Locke were included in state 111 Justice Stanley Reed, McCollum v. Board of Education 333 U.S. 203 at 255 (1948) (concurring).
144 constitutions not out of anti-Cat holic animus but out of Federal requirements that such language be included in new state constitutions. Furthermore, the Blaine clauses at both Federal and state levels emerged from many reasons not single causes. Thus, even where anti-Cat holic animus may have played a role in state adoption of a Blaine Amendment other, legitimate, motives also undoubtedly played a role. As a result, it may be hard to argue that an unconstitutional mo tive embedded with numerous other constitutionally acceptable motives should invalidate a state constitutional clause unless it can be shown that the unconstitutional motive was the primar y intent of adoption. In addition, it must be recognized that state constitutional adoption and revision in the Twentieth Century, a period less fraught with anti-Catholicism than the Nineteenth Century has great pote ntial to eliminate antireligious bias as grounds for invalidation. Finally, and undoubtedly most importantl y, the Supreme Cour t has accepted the argument that Blaine Amendments are characte rized by anti-Catholic intent and, somewhat paradoxically declared that a state constitutional clau se devoid of such animus is not, therefore, a Blaine Amendment. This means that as a result of the difficulty of proving anti-Catholic intent as a primary legislative priority, as suggested by the argument presented here, many, if not most, state clauses impacting the flow of tax dollars into religious institutions are likely to survive U. S. Supreme Court scrutiny. Thus, it will devolve to state courts to decide whether or not a state clause should be considered a Blaine Amendment and, if not, whether or not the state clause, like that of Washington, falls in to the play in the joints once again articulated in Locke As a result of this devoluti on, state legislatures and educat ional policy makers will be required to engage in analysis of local amendm ents to determine whether anti-Catholic motives of the past were primary drivers for the adoption of their Blaine clauses; and it seems likely that
145 many, if not most, state Blaine Amendments w ould survive constituti onal challenge. Thus, legislatures, courts, and other participants in the crafting of state fundi ng programs will have to make their own determination of what role a st ate clause will play in educational and other funding decisions.
146 Table 4-1. Eighteenth century stat e constitutional provisions re jecting state support for clergy State Article Text Georgia Art. IV, (1789) All persons shall have the free exercise of religion, without being obliged to c ontribute to the support of any religious profession but their own. Pennsylvania Art. II (1776) [N]o man ought or of ri ght can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent. New Jersey Art. XVIII (1776) That no person shall ever, within this Colony, be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor, tinder any pretence whatever, be compelled to attend any place of worship, contrary to his own faith and judgment; nor shall any person, within this Colony, ever be obliged to pay tithes, taxes, or any other rates, fo r the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberated or voluntarily engaged himself to perform. Delaware Art. I, (1792) . yet no man shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any pl ace of worship or to the maintenance of any ministry, against his own free will and consent; Kentucky Art. XII, (1792) that no man of right can be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; that no human authority can in any case what ever control or interfere with the rights of conscience; Vermont Ch. I, Art. 3 (1793) that no man ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience, nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religio us worship; and that no authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner controul the rights of conscience, in the free exerci se of religious worship.
147 Table 4-1. Continued State Article Text Tennessee Art. XI, (1796) that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; that no human authority can in any case what ever control or interfere with the rights of conscience; Ohio Art. VIII, (1802) that no human authority can, in any case whatever, control or interfere with th e rights of conscience; that no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; Source: Thorpe, ed. Federal and State Constitutions, Co lonial Charters and Other Organic Laws (1909) (reprinted 1993).
148 Table 4-2. General categories of state constituti onal clauses having the potential to affect the transfer of tax dollars into religious institutions No compulsory attendance or support No preference for any group No exclusive right to state educational funds Government to protect all denominations No appropriations for church schools No grant of land or aid to religious institutions No public support for re ligious institutions Public schools to be free of sectarian influence Table 4-3. No compulsory support clau ses in state constitutions, 1776 to 1799 State First Adoption Reiterations Maryland 1776 North Carolina 1776 Pennsylvania 1776 1790 South Carolina 1776 1778, 1790 Vermont 1777 1786, 1793 New Hampshire 1784 1792 Delaware 1792 Kentucky 1792 1799 Tennessee 1796 Georgia 1798
149 Table 4-4. No compulsory support clau ses in state constitutions, 1800 to 1825 State First Adoption Ohio 1802 Indiana 1816 Connecticut 1818 Illinois 1818 Alabama 1819 Maine 1820 Missouri 1820 Table 4-5. No compulsory support clau ses in state constitutions, 1826 to 1850 State First Adoption Virginia 1830 Michigan 1835 Arkansas 1836 Rhode Island 1842 Texas 1845 Wisconsin 1848
150 Table 4-6. No public support clauses in state constitutions, 1776 to 1900 State First Adoption New Jersey 1776 Virginia 1830 Michigan 1835 Wisconsin 1848 Indiana 1851 Minnesota 1857 Oregon 1857 Missouri 1875 Idaho 1889 South Dakota 1889 Washington 1889 Wyoming 1889
151 Table 4-7. No appropriation for church school s clauses in state constitutions, 1776 to 1900 State First Adoption Pennsylvania 1873 Nebraska 1875 Colorado 1876 Montana 1889 North Dakota 1889 Wyoming 1889 Utah 1895 Table 4-8. Clauses in state constitutions stating th ere shall be no grant of land or aid to religious institutions, 1776 to 1900 State First Adoption Illinois 1870 Colorado 1876 Texas 1876 Idaho 1889 South Dakota 1889 Utah 1895
152 Table 4-9. Clauses in state c onstitutions stating that no relig ious institution shall have an exclusive right to state educational funds, 1776 to 1900 State First Adoption Ohio 1851 Kansas 1855 Nebraska 1866 Arkansas 1868 Mississippi 1868 Table 4-10. Clauses in state constitutions stati ng public schools are to be free from sectarian influence, 1776 to 1900 State First Adoption Nevada 1864 Nebraska 1875 Montana 1889 North Dakota 1889 South Dakota 1889 Washington 1889
153 Table 4-11. Use of the term sectarian in cont ext in nineteenth and twentieth century state constitutions State Date Location Alabama 1875 Art. XIII, Sec. 8 1901 Art.XIV, Sec. 263 Alaska 1959 Art. VII, Sec. 1 Arizona 1912 Art. IX, Sec. 10 Art. XI, Sec. 7 Art. XX, Sec. 7 California 1879 Art. IV, Sec. 30, Amend. 548 Art. IX, Sec. 8 Art. IX, Sec. 9, Amend. 123 Art. XIII, Sec. 24 Art. XVI, Sec. 16 Colorado 1876 Art. V, Sec. 34 Art. IX, Sec. 7 Art. IX, Sec. 8, Amend. 187 Delaware 1897 Art. X, Sec. 3 Florida 1887 Art. 9002, Sec. 6 Art. XII, Sec. 13 1968 Art. I, Sec. 3 Georgia 1868 Art. 3, Sec. 6.2 1983 Art. I, Sec. II, Para. VII Hawaii 1959 Art. 9, Sec. 1 1968 Art. 9, Sec. 1 1978 Art. 10, Sec. 1, Amend. 21 Idaho 1890 Art. 9, Sec. 5 Art. 9, Sec. 6 1980 Art. 9, Sec. 5, Amend. 96 Illinois 1870 Art. VIII, Sec. 3 1970 Art. IX, Sec. 3 Kentucky 1891 Sec. 189 Louisiana 1879 Art. 9007, Sec. 228 1898 Art. 9007, Sec. 253 1921 Art. XII, Sec. 13 Mississippi 1890 Art. IV, Sec. 66 Art. VIII, Sec. 208 Montana 1889 Art. V, Sec. 35 Art. XI, Sec. 8 Art. XI, Sec. 9 1973 Art. X, Sec. 6.1 Art. X, Sec. 7 Nevada 1864 Art. XI, Sec. 2 Art. XI, Sec. 2, Amend 31 Art. XI, Sec. 9 1880 Art. XI, Sec. 10 New Mexico 1911 Art. XII, Sec. 3 Art. XXI, Sec. 4
154 Table 4-11. Continued State Date Location North Dakota 1889 Art. VIII, Sec. 147 Art. VIII, Sec. 152 1981 Art. VIII, Sec. 1 Art. VIII, Sec. 5 Oklahoma 1907 Art. I, Sec. 5, Art. II, Sec. 5 Art. XI, Sec. 5 1978 Art. I, Sec. 5, Amend. 1 New Mexico 1911 Art. XII, Sec. 3 Pennsylvania 1874 Art. III, Sec. XVIII Art. III, Sec. XVIII, Amend. 33 Art. III, Sec. XVIII, Amend. 43 Art. III, Sec. XVIII, Amend. 70 Art. X, Sec. 2 1969 Art. III, Sec. 15 Art. III, Sec. 29 1975 Art. VIII, Sec. 17(a), Amend. 10 Art. VIII, Sec. 17(a), Amend. 12 South Carolina 1868 Art. X, Sec. 5 1895 Art. XI, Sec. 9 South Dakota 1889 Art. VI, Sec. 3 Art. VIII, Sec. 16 Art. XXII, Sec. 1 Art. XXVI, Sec. 18 Texas 1876 Art. VII, Sec. 5 1891 Art. VII, Sec. 5, Amend. 23 1964 Art. VII, Sec. 5, Amend. 199 1983 Art. VII, Sec. 5, Amend. 385 1988 Art. VII, Sec. 5, Amend. 449 1989 Art. VII, Sec. 5, Amend. 467 2003 Art. VII, Sec. 5(c), Amend. 730 Utah 1895 Art. X, Sec. 1 1947 Art. III, Sec. 4, Amend. 33 1987 Art. X, Sec. 1, Amend. 184 Virginia 1902 Art. IX, Sec. 141 Washington 1889 Art. IX, Sec. 4 Art. XXVI Wyoming 1889 Art. I, Sec. 19 Art. III, Sec. 36 Art. VII, Sec. 8 Art. VII, Sec. 12 N= 27 51 85
155 Table 4-12. Use of the term sect in contex t in nineteenth and tw entieth century state constitutions State Date Clause Alabama 1801 Art. 1, Sec. 3 Arkansas 1868 Art. IX, Sec. 1 Connecticut 1818 Art. I, Sec. 4 1955 Art. 1, Sec. 4 Kansas 1859 Art. VI, Sec. 8 1966 Art. VI, Sec. 6(c) Maine 1819 Art. I, Sec. 3 1988 Art. I, Sec. 3 Maryland 1776 Sec. 34 1795 Sec. 36, Amend 2 1798 Sec. 36, Amend 5 1825 Sec. 6, Amend 47 1851 Sec. 35 1864 Sec. 38 1867 Art. I, Sec. 38 Massachusetts 1780 Art. I, Sec. 3 Art. XVIII Art. XI Michigan 1850 Art. IV, Sec. 39-41 Minnesota 1877 Art. VIII, Sec. 3, as Amended Missouri 1820 Art. III, Sec. 13 1820 Art. XIII, Sec. 5 1865 Art. I, Sec. 13 1875 Art. II, Sec. 7 Nebraska 1864 Art. VII, Sec. 1 New Hampshire 1776 Art. I, Sec. VI 1792 Art. I, Sec. VI 1902 Part II, Art. 82 New Jersey 1776 Art. XIX 1844 Art. I, Sec. 4 Ohio 1851 Art. VI, Sec. 2 Tennessee 1790 Art. VII, Sec. 7 Vermont 1777 Chap. 1, Art. 3 1786 Chap. 1, Art. 3 1793 Chap. 1, Art. 3 Virginia 1830 Art. III, Sec. 15 1864 Art. IV, sec. 15 1870 Art. V, sec. 14 1902 Art. Iv, Sec. 58 West Virginia 1862 Art. II, Sec. 9 1872 Art. III, Sec. 15
156 Table 4-13. Clauses stating that no preference shall be given to any religious group, 1776 to 1799 State First Adoption Reiteration North Carolina 1776 Pennsylvania 1776 1790, 1873 Delaware 1792 1831 Tennessee 1796 1834, 1870 Ohio 1802 Indiana 1816 1851 Kentucky 1792 1799, 1850 Mississippi 1817 1832, 1868 Illinois 1818 1848, 1870 Maine 1820 Missouri 1820 1865, 1875 Virginia 1830 1850, 1864 Massachusetts1 1833 Arkansas 1836 1864, 1874 Florida 1838 1865 Texas 1845 1866, 1868, 1876 Wisconsin 1848 Kansas 1857 1859 West Virginia 1861 1872 Nebraska 1866 1875 Colorado 1876 Idaho 1889 South Dakota 1889 1 Massachusetts Constitutional Amendments of 1833.
157 CHAPTER 5 CONCLUSIONS, POLICY IMPLICATIONS, AND FUTURE RESEARCH This study sought to answer two critical question for state legislators, courts, and educational policy m akers: 1) In general, are the state constitutional clauses commonly labeled Blaine Amendments primarily expressions of antiCatholic legislative in tent, and 2) are they therefore to be considered unc onstitutional Blaine Amendments as defined by the Court in Locke ? This study argued that the answer to both questions is no. The origins, wording, and history of clause s in Nineteenth Cent ury state constitutions may seem like an esoteric study for policy make rs engaged in educational funding decisions. Yet, the Locke ruling has made this kind of analysis critical to state legislatures, courts, departments of education, school boards, and others who need to make in telligent and informed decisions concerning educa tional and other funding programs. As a result of Locke, many, perhaps most so called Baby Blaines,1 or state constitutional clauses related to restricting the flow of tax dollars into religious institutions, might perhaps be more accurately identified as No Compulsory Support clauses. In the absence of clear anti-Catholic legislative intent, such clauses are now recognized as legi timate constitutional exercises of state desire to maintain a separation of Church and State. For Blaine opponents, Locke provides little comfort. On one hand, the Court has clearly accepted the argument that Blaine Amendments are expressions of anti-Catholic intent. At the same time, as this research demonstrates, by declaring Article I, Sec. 11 of the Washington constitution not a Blaine Amendment the Court has made it very difficult, if not impossible, for 1 Goldenziel, Jill I., Blaine's Name in Vain?: State Constitutions, School Choice, & Charitable Choice. Denver University Law Review Vol. 83, No. 1, Fall 2005.
158 Blaine opponents to make the case that any part icular state clause will be an unconstitutional Blaine Amendment. This is so because, first, No Compulsory Support Clauses, with roots in Seventeenth and Eighteenth Century Col onial assertions of the right of c onscience, long predate and therefore cannot be attributed solely to mid-Nineteenth Century nativism or anti-Catholic hysteria. Each clause of the failed Federal Blaine Amendment itself, and of its puta tive progeny at the state level, is found in numerous state constitutions that pre-date by as much as a century the Blaine period. Second, the No Compulsory Support Clauses reflect the long tradition of struggle by the states to seek an appropriate relationship be tween church and state and a desire to avoid entanglement, specifically compulsory suppor t of religion. Thus, the so-called Blaine Amendments are actually best understood as a continuation of the No Compulsory Support tradition. This was also demonstrated in the ex amination of dozens of state constitutional statements denying funding to all reli gious institutions, Catholic and Protestant alike. This denial of religious funding emerged primarily as opposition to compulsory support which was a particular concern to the Founding Fathers such as Madison and Jefferson. Thus, it is no accident that all components of the later Blaine Amendmen ts originate decades prior to Blaine's failed Amendment and later adoptions of earlier a nd neutral language also shared by Blaine. Third, No Compulsory Support clauses are no t anti-Catholic in their origins, as is frequently argued, but are, in fact, the product of religiously neutral intent to remove religious practice in general from state-s upported schools. Even before the word sectarian appeared in any state constitution, the deliberations of the Massachusetts' constitutional convention of 185354 clearly recognized that langua ge denying funding to religious practices in schools would
159 adversely impact the generic Protes tant practices in public schools such as reading from the King James version of the Bible. This, along with the growth of secularism and the free-thinkers movement, became the context for Grants 1875 speech to the Army of Tennessee reunion. That speech, considered the impetus for Blaine's failed Amendment, is clearl y neutral in language and intent. The neutrality of the proposed Amendment is underscored by the efforts in Congress to amend the language of the original proposal, reflecting an explicit desire to protect Protes tant practices in schools; but the amended, decidedly non-ne utral, language failed. Likewise, the historical context for both th e proposed Blaine Amendment to the United States Constitution, the precursor clauses in stat e constitutions, and the Blaine progeny that were adopted by new states at the direction of C ongress in the latter quart er of the Nineteenth Century are all clearly products of numerous soci al, political, and religiou s currents active during the time. These currents range fr om earlier struggles to define the relationship of church and state, anti-immigrant nativism, the rise of a reactionary papacy issuing proclamations condemning the American democratic experiment [see Appendix C], the growth of the freethinker, secularist, and atheist movements in American society, Westward expansion, the Civil War, Reconstruction and new statehood, a nd the emergence of the Common School movement, among myriad others. In such a complex milieu, ascribing the Blaine Amendments to the single cause of anti-Catholic animus simply cannot be sustained. Fourth, the large majority of states that im plemented No Compulsory Support clauses in the post-Blaine period chose the religiously neut ral language used in ea rlier state constitutions and preserved by Blaine, demonstrating a religiously neutral inte nt. These choices of language may also demonstrate an awareness that it was on ly a mater of time until Protestant practices in
160 public schools were challenged under these clauses and that those challenges were likely to be successful. As a result, as we have seen, both Protestant and Catholic leaders supported both these No Compulsory Support clauses as well as the move to make common schools religiously neutral. Fifth, the examination of the key words sect and sectarian in State constitutions demonstrated how the former was gradually, though not entirely, replaced by the latter. Likewise, the examination of how the word sect was used in context in state constitutions demonstrated that this word unquestionably de notes the variety of Ch ristian denominations. Likewise, this study demonstrated that the word sectarian, also read in textual context, is nearly always paired with qualifi ers that again emphasize the variet y of Christian churches rather than functioning as the oft-asse rted code word for Catholic. Finally, many of the No Compulsory Suppor t clauses adopted during the very real periods of nativism and anti-Catholicism have passed through Constitutional revision and readoption during times not so associated; thus cl auses to which anti-Catholic animus could be ascribed may well be considered disassociated from such attitudes in the modern period. For example, the Texas Constitution of 1876 asserts th at, no law shall ever be enacted appropriating any part of the permanent or available schoolfund to any other purpose whatever; nor shall the same or any part thereof ever be appropriated to or used for th e support of any sectarian school. Unlike many constitutions examined here, there are no modifiers in this constitution to clearly establish neutrality. However, the Texas Constitution has been revised and ratified in 1891, 1964, 1983, 1988, 1989, and 2003. At each constitutional revision, the unmodified use of sectarian has been preserve d; and unless one were to ac cuse Texans in 1983, 1988, 1989, and
161 2003 of pervasive anti-Catholicism, one must accept that the term sectarian no longer connotes anti-Catholic intent. Future Litigation Ultimately, however, the Supreme Court ruling in Locke has not closed the door to future challenges; but the constitutionality of state-level Blaine Amendm ents must now be decided on a state-by-state basis. In his opinion of the majority, Rehnquist asserted that: The amici contend that Washingtons C onstitution was born of religious bigotry because it contains a so-calle d Blaine Amendment, which ha s been linked with antiCatholicism. As the State notes and Davey does not dispute, however, the provision in question is not a Blaine Amendment. The enabling Act of 1889, which authorized the drafting of the Washington Constitution, requ ired the state constitution to include a provision for the establishment and mainte nance of systems of public schools, which shall be free from sectarian control. Th is provision was included in Article IX, of the Washington Constitution, and is not at issue in this case. Neither Davey nor amici have established a credible connection between the Blaine Amendment and Article I, the relevant constituti onal provision. Accordingly, the Blaine Amendments history is simply not before us.2 Thus, there are two possible avenues for Blaine Amendments to appear again before the Court. The first would be a similar case where the state Blaine Amendment is more explicitly implicated. Even in such a case, the bar has been raised by Locke in the Court's insistence that we find neither in the history or text of Article I, of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion.3 Therefore, [g]iven the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious in struction alone is inherently constitutionally suspect.4 2 Justice William Rehnquist, L ocke v. Davey 540 U.S. 712, 2004. Opinion of the Court, p. 10, fn 7, (citations omitted). 3 Id p. 11 4 Id
162 A second possible way for a particular Blaine Amendment to appear before the Court would be if specific, legislative anti-Catholic intent can be identified in the deliberations of a State in its enactment of a specific Blaine Amen dment. But even such a smoking gun will also have its difficulties given that most state consti tutions have been revised and re-ratified in the years since the nativism of the Nineteenth Century and it will likely be th e intent of the most recent legislative review that will matter most. In this context, States can learn much fr om this ruling, specifically from the Court majority assertion that: Far from evincing the hostility towa rd religion which was manifest in Lukumi we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The progr am permits students to attend pervasively religious schools, so long as they are accred ited In short, we find neither in the history or text of Article I, of the Wa shington Constitution, nor in the operation of the Promise Scholarship Program, anythi ng that suggests animus towards religion. Given the historic and substant ial state interest at issue, we therefore cannot conclude that the denial of funding fo r vocational religious instruction alone is inherently constitutionally suspect.5 Likewise, the Court observed, Washington has also been solicitous in ensuring that its constitution is not hostile towards religion, and at least in some re spects, its constitution provides greater protection of religious libert ies than the Free Exercise Clause. We have found nothing in Washingtons overall approach that indicat es it single[s] out anyone for special burdens on the basis of religious callings.6 Thus, at the state level, the question of whether or not the or igins of a particular Blaine Amendment lie in an unconstitu tional anti-Catholic bias, or upon any other suspect grounds, will undoubtedly be raised. However, given the incomple te nature of Nineteenth Century records, proving an unconstitutional motive for enactment of a Blaine Amendment will be difficult at 5 Id ., p. 10-11 (citations omitted) 6 Id p. 10-11, fn 8. (citations omitted)
163 best. As such, it would appear that Blaine Amen dments will stand, at least until such time when, and if, the makeup of the U.S. Supreme Court ch anges to include more Justices who interpret these issues in a significantly different fashion. Policy Implications For policy m akers, the implications of Locke are similar. Black's Law Dictionary defines policy as, The general principles by which a gove rnment is guided in its management of public affairs, or the legislature in its measures.7 The general principles emerging from Locke are simple; implementing them is much more controversial. First, the series of cases examined, Mitchell v. Helms, Zelman v. Simmons-Harris and Locke v. Davey all state that if a legislature opens a funding program to private institutions, it cannot restrict religious institutions from partic ipating, even pervasively religious institutions. However, tax dollars cannot flow directly from the State to religious in stitutions, but must pass through the independent decisions of parents or other recipients of state money delivered in the form of vouchers, scholarships, and the like. Thus, policy-makers need to understand this when designing funding programs. Second, funding programs need to be structured and administered in a religiously neutral fashion to pass constitutional mu ster. Anti-religious discriminati on, directed at a particular religion or religion in general, will doom a program to be struck down by the Court. Likewise, state legislation that favors religious groups will also be viewed as suspect.8 7 Black's Law Dictionary, 6th ed., 1990. 8 See Alexander, supra. p. 146. (The courts have been forced to respond to a consistent and seemingly endless array of attempts by legislatures, in states with large percentages of parochial school students, to circumvent separation barriers in efforts to allow tax funds to flow to religious schools). In this context, th e efforts of certain religious groups to insert theistic creation into school curricula is instructive. See also Edwards v. Aguillard 482 U.S. 578 (1987) (a Louisiana law requiring that creation science be taught in public schools wh enever evolution was taught is unconstitutional, because the la w was specifically intended to advance a particular religion); and Kitzmiller v.
164 Third, both supporters and opponents of the pa rticipation of religious schools and institutions in State funding programs need to understand the principles of their State Constitutions when arguing about the Constitutiona lity of a program. The Supreme Court has made it clear that religiously neut ral programs that allow and restri ct the flow of tax dollars to religious institutions can both stand in the play in the joints between the Free Exercise and No Establishment Clauses of the Federal Constitution. Fourth, both supporters and opponents of the participation of religious schools and institutions in State funding programs need to examine the histories of their States and to evaluate the influence of religi ous prejudice on their Constitutions. While it will be difficult to find and clearly establish an anti -religious bias, such a task is not impossible; and successful documentation of bias could substantially change the nature of a future Supreme Court ruling. Fifth, both supporters and opponents of the pa rticipation of religious schools and institutions in State funding programs need to look at their own Constitutional histories to determine how the State Supreme Courts have framed their Blaine Amendments and other clauses having the potential to affect the flow of tax dollars into religious institutions. As Frank Kemerer shows in a 1997 article,9 many state courts limit of the amount of church-state interaction permissible under their Constitutions. Kemerer examines the Establishment Clauses in all fifty state constitutions and identifies sevent een states as being "restrictive" regarding state aid to religious schools.10 Each of these seventeen state cons titutions also contains a Blaine Dover Case 4:04-cv-02688-JEJ, (2004-2005) (declaring the Dover mandate was unconstitutional, and barring intelligent design from being taught in Pennsylvania's Middle District public school classroom.) 9 Frank R. Kemerer, State Constitutions and School Vouchers, 120 West's Educ. L. Rep. 1, 20-39 (1997). 10 Id ., n41, at 39-40, tbl.1. The states ar e Alaska, California, Delaware, Florid a, Hawaii, Idaho, Kansas, Kentucky, Massachusetts, Michigan, Missouri, North Dakota, Oklahoma, South Dakota, Virginia, Washington, and Wyoming.
165 Amendment.11 Kemerer identifies fourteen states as "permissive," either because the state constitution has no provision regard ing church-state relations or because of a "supportive legal climate."12 Of these permissive states, eight also have Blaine Amendments.13 Finally, nineteen states,14 ten of which have Blaine Amendments,15 are classified as "uncertain."16 Therefore, Kemerer's work argues that at l east seventeen restrictive states would be inclined to view a voucher program involving religious schools with a skeptical eye.17 In this context, it is important to not e that both the Wisconsin and Ohio State Constitutions contain Blaine language, but in Jackson v Benson18 the Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program declar ing the program acceptable under both the Wisconsin and United States Constitutions desp ite provisions allowing tax dollars to go to religious institution. In 1998 the U.S. Supreme Court chose not to hear the appeal of the 11 Toby Heytens, School Choice and State Constitutions, February, 86 Va. L. Rev. 117, n45 (2000). Professor Kemerer classifies only thirteen of the seventeen restrictive states as contai ning restrictive constitutional language. He excludes Alaska, Idaho, South Dakota, and Washington from the list. See id Professor Kemerer acknowledges, however, that his classificati ons "should be viewed as approximations" b ecause "of the complexity of this task and the subjectivity inherent in making these determinations." 12 Kemerer, supra note 41, at 23. 13 Id ., n32. Professor Kemerer lists Alabama, Maine, Maryland, Nebraska, Pennsylvania, Rhode Island, and Vermont as having permissive constitutional language. See id. Nevertheless, two of these states' constitutions Nebraska's and Pennsylvania's also contain Blaine Amendments. See Neb. Const. art. VII, 11; Pa. Const. art. III, 29. Additionally, the Arizona, New Hamp shire, New York, South Carolina, Ut ah, and West Virginia constitutions contain Blaine Amendments. Heytens, n47 14 Id. n41, at 39-40 tbl.1. The states are Arkansas, Colorado, Connecticut, Georgia, Illinois, Indiana, Iowa, Louisiana, Minnesota, Montana, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Tennessee, Texas, and Wisconsin. Of course, since both the Milwaukee, Wisconsin and Cleveland, Ohio voucher programs have been upheld against state constitutional attack, see Simmons-Harris v. Goff 711 N.E.2d 203, 207 (Ohio 1999); Jackson v. Benson 578 N.W.2d 602, 632 (Wis.), cert. denied, 525 U.S. 997 (1998), neither of those states is uncertain any longer. Heytens, n. 48 15 Colorado, Georgia, Illinois, Indiana, Minnesota, Montana, New Mexico, Oregon, Texas, and Wisconsin. See id. n32 (listing Blaine Amendments). 16 Id ., n41, at 37. 17 Heytens, supra at 127. 18 218 Wis. 2d 835 (1998).
166 Wisconsin ruling. On the other hand, in Ohio, the State Court of Appeals found the Pilot Project Scholarship Program19 unconstitutional, declaring that the program had the primary effect of advancing religion in violation of the Establishment Clause.20 It was this ruling the United States Supreme Court overruled in Zelman v. Simmons-Harris .21 Thus, after Locke it would appear that it is the inclinations of particul ar state courts rather than the presence of Blaine language in a state constitution that will determine whether or no t state tax dollars will be allowed to flow to religious institutions. But even then, it is clear th at the United States Supreme Court finds limited impediments to religious institu tions receiving tax funds; and a ny attempt by States to create such limits must be carefully crafted to fulfill th e rather imprecise requirements of neutrality. The implications of Locke are already being seen in Fl orida where advocates for the increased participation of religious organiza tions in state funding programs were recently thwarted. In 2006 the Florida Supreme Court declared the states Opportunity Scholarship Program unconstitutional because it incl uded private secular and religious schools.22 In Bush v. Holmes, the Florida court asserted in a five to two decision that the voucher program violated the state constitutions provision re quiring a uniform system of public schools for all students. Chief Justice Barbara J. Pariente wrote in the ma jority opinion that the voucher program diverts public dollars into separate, private systems parallel to and in competition with the free public schools.23 It is instructive to note that this ruling was not based on Floridas Blaine 19 Ohio Rev. Code Ann. 313.97413.979. 20 528 U.S. 983 (1999). 21 234 F.3d 945 (2002). 22 John Ellis Jeb Bush v. Ruth D. Holmes 919 So. 2d 392, 412-13 (Fla. 2006). 23 Erik W. Robelen, Florida Voucher Ruling Roils School Choice Waters, Education Week 17 January 2006. Available online at http://www.edweek.org/ew /articles/2006/01/18/19vouchers.h25.html.
167 Amendment,24 but instead on the clause requiring a uniform, efficient, safe, secure, and high quality system of free public schools.25 This illustrates the argument previously presented that Blaine Amendments and No Compulsory Support clauses ar e not the only state constitutional clauses having the potential to affect the flow of tax dollars into private and religious institutions. In part, as a result of the Bush v. Holmes ruling, a recent state tax commission26 attempted to place before Florida voters as pa rt of the 2008 election cycle a constitutional amendment to repeal the states Blaine language stating, No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public trea sury directly or indirectly in aid of any church, sect or reli gious denomination or in aid of any sectarian institution. That language was to be replaced by the statement th at, Individuals or enti ties may not be barred from participating in public programs because of religion.27 The proposed amendments were then challenged before the Florida Supreme Court in Ford v. Browning 28 and in September 2008 the high court ruled seven to zero in favor of th e challengers, striking the proposed amendments from the ballot because they both exceeded th e constitutional authority of the tax commission29 24 Fla Const., Art. I, Sec. 3. 25 Fla. Const., Art. IX, Sec. 1(a). 26 Information on the Florida Taxation and Budget Reform Commission is available online at http://www.floridatbrc.org/. 27 Americans United for Separation of Church and State, Florida Tax Commission Urges Repeal of Strict ChurchState Provisions. BNET Business Network (May 2008). Available online at http://findarticles.com/p/articles/ mi_qa3944/is_200805/ai_n25502298. 28 No. SC08-1529, September 15, 2008. The proposed amendments were originally challenged and upheld before the Florida Circuit Court ( Ford v Browning No. 08-1905, Aug. 4, 2008) and then appealed to the Florida Supreme Court.29 Id This is the focus of the Opinion of the Court written by Justice Wells, available online at http://www.floridasupremecourt.org/decisions/2008/sc08-1529.pdf.
168 and were presented in language designed to misl ead voters regarding the real purpose and effect of the changes.30 As the litigation surrounding the Florida Tax Commissions proposed constitutional amendments illustrates, policy makers need to be aware of the myriad strategies available for changing and circumventing consti tutional and statutory policies. Likewise, policy makers need to be aware of the legal impli cations of opening or closing -funding programs to religious participation.31 Thus, the involvement of religious institutions in State funded programs opens a veritable Pandora's Box of doors to a variet y of legal dilemmas that will undoubtedly be explored in our increasi ngly litigious society. Future Research By nature, this type of study opens up as many directions for further research as it closes others. Many of these directions have been me ntioned earlier including a deeper examination of state No Compulsory Support clause adoption to id entify the role and level of anti-Catholic and other anti-religious bias, if any, in State adoption of the variety of clauses potentially affecting the flow of tax dollars into religious institutions. Another topic would be the level of awar eness that neutral No Compulsory Support language would affect Protestant religious practice in public sc hools. As discussed previously, 30 Id This is the focus of the Opinion of the Court written by Justice Lewis. T 31 Derek Davis, Mitchell v. Helms and the Modern Cultural Assault on the Separation of Church and State, 43 B.C. L. Rev 1054 (September, 2002). Davis lists such questions as how will the parents of a student whose application to a religious school is rejected respond when they realize that their tax money now subsidizes certain "secular" functions of the school that rejects their child? How does the State monitor return on investment or the required qualifications of teachers when tax dollars disappear into the budgets of religious schools? What if a religious school's students consistently fail to meet mi nimum standards on assessments? Can the State even require religious schools to administer State assessments of aca demic progress? How can the government intervene where problems are identified and documented? If the governmen t does demand accountability, will the school be able to defend its policies and practices using the First Amendment or will it be forced to acquiesce to the government's will and/or popular opinion? and Will the public stomach government support even of secular functions in schools that also teach the traditions of witchcraft, or Rastafarianism, or Zoroastr ianism, or the Branch Davidians?
169 Massachusetts legislators were clearly aware of th is possibility as early as 1853. How widely that awareness spread and what influence that awaren ess may have had on future legislation would be a valuable study. Continued analysis of how state courts in terpret and apply state constitutional No Compulsory Support clauses will also be impor tant; for the will shape the new, emerging patterns of church-state relations. Continued attention to future U.S. Supreme Court cases related to government funding and religious institutions will also be necessa ry. Likewise, the changing constituency of the Court always has the attention to raise now ques tions and establish new doc trines and tests that can dramatically change the nature of even well-settled law. Finally, the ongoing efforts of some groups a nd churches to furthe r lower the barriers between church and state and increase the flow of state funds into relig ious institutions will continue to clash against ongoing efforts by some to restore the high wall of separation; undoubtedly resulting in frequent legal and poli tical fireworks, will continue to provide additional topics for future analysis.
170 APPENDIX A BLAINE CLAUSES IN CURRENT STATE CONSTITUTIONS
171State Clause Text Alabama Art. XIV, Sec. 263 No money raised for the support of the public schools, shall be appropriated to or used for the support of any sectaria n or denominational school. Alaska Article VII, Sec. 1 Public Educ ation. The legislature shall by general law establish and maintain a system of public schools open to all ch ildren of the State, and ma y provide for other public educational institutions. Schools and institutions so established shall be free from sectarian control. No money shall be paid from public fu nds for the direct benefit of any religious or other private educational institution. Arizona Art. IX, Sec. 10 No tax shall be laid or appropria tion of public money made in ai d of any church, or private or sectarian school, or any public service corporation. Art. XI, Sec. 7 No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admissi on into any public educational institution of the state, as teacher, student, or pupil; but the liberty of conscience hereby secured shall not be so construed as to justify practices or conduct inconsistent with the good order, peace, morality, or safety of the state, or with the rights of others. Art. XX, Sec. 7 Provisions shall be made by law fo r the establishment and main tenance of a system of public schools which shall be open to all the children of the state and be free from sectarian control, and said schools shall always be c onducted in English. The state shall never enact any law restricting or abridging the right of suffrage on account of race, color, or previous condition of servitude. Arkansas No use of sectarian These are only clauses using the word sectarian. Many state co nstitutions contain other clauses that may affect the flow of t ax dollars into religious institutions. For example, the Kentucky State Constitution, Sec. 184 reads, The interest and dividends of said fund, together with any sum w hich may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other pur pose. While this phrase can influence whether or not state funds can flow to religious school s, it is not counted in this research as a Blaine Amendment.
172 California Art. IX, Sec. 8 No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State. Art. XVI, Sec. 5 Neither the Legislature, nor a ny county, city and county, townsh ip, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, chur ch, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution contro lled by any religious creed, church, or sectarian denomination whatever; nor shall an y grant or donation of personal property or real estate ever be made by the State, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian pur pose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Sec tion 3 of Article XVI. Colorado Art. V, Sec. 34 No appropriation shall be made fo r charitable, industrial, educa tional, or benevolent purposes to any person, corporation, or community not unde r the absolute control of the State, nor to any denominational or sectaria n institution or association. Art. 9, Sec. 7 Neither the general assembly, nor any county, city, town, township, school-district, or other public corporation shall ever make any appropr iation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, semi nary, college, universit y, or other literary or scientific institution controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money, or other persona l property ever be made by the State, or any such public corporation, to any church or for any sectarian purposes. Art. 8, Sec. 8, Amend. 187 Religious test and race discrimination forbid den sectarian tenets. No religious test or qualification shall ever be requir ed of any person as a conditi on of admission into any public educational institution of the state, either as a teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatsoever. No sectarian tenets or doctrines sha ll ever be taught in the public school, nor shall any distinction or classification of pupils be ma de on account of race or color, nor shall any pupil be assigned or transported to any public educational institution for the purpose of achieving racial balance. [As amended, December 20, 1974. ] Connecticut No use of sectarian
173Delaware Art. 10, Sec. 3 No portion of a ny fund now existing, or which may hereafter be appropriated, or raised by tax, for educational purposes, shall be appropriated to, or used by, or in aid of any sectarian, church or denominational school; provided, that all real or personal pr operty used for school purposes, where the tuition is free, shall be exempt fr om taxation and assessment for public purposes. Florida Art. I, Sec. 3 Religious freedom. There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereo f. Religious freedom shall not justify practices inconsistent with public morals, peace or safet y. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomin ation or in aid of any sectarian institution. Georgia Art. I, Sec. 2, Para. Vii Separation of church and state. No money shall ev er be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution. Hawaii Art. 10, Sec. 1, Amend. 21 The State shall provide for the establishment, support and control of a statewide system of public schools free from sectarian control, a st ate university, public libraries and such other educational institutions as may be deemed desi rable, including physical facilities therefor. There shall be no discrimination in public educ ational institutions because of race, religion, sex or ancestry; nor shall public funds be appropriated for th e support or benefit of any sectarian or private educational institution, except that proceeds of special purpose revenue bonds authorized or issued under section 12 of Article VII may be appropriated to finance or assist not-for-profit corporations that provide early childhood education and care facilities serving the general public. Idaho Art. IX, Sec. 5, Amend. 96 Neither the legislature nor any county, city, to wn, township, school district, or other public corporation, shall ever make any appropriatio n, or pay from any public fund or moneys whatever, anything in aid of any c hurch or sectarian or religious society, or for any sectarian or religious purpose, or to help support or su stain any school, academy, seminary, college, university or other literary or scientific in stitution, controlled by any church, sectarian or religious denomination whatsoev er; nor shall any grant or dona tion of land, money or other personal property ever be made by the state, or any such public corpora tion, to any church or for any sectarian or religious pur pose; provided, however, that a health facilities authority, as specifically authorized and empow ered by law, may finance or refinance any private, not for profit, health facilities owned or operated by an y church or sectarian re ligious society, through loans, leases, or other transact ions. [Ratified November 4, 1980]
174 Art. IX, Sec. 6, No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the State, either as teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatever. No sectarian or religious tenets or do ctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or in troduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article. Illinois Art. X, Sec. 3 Neither the General Assembly nor any county, city, town, township, school distri ct, or other public corporation, shall ever make any appropr iation or pay from any public fund whatever, anything in aid of any church or sectarian pur pose, or to help support or sustain any school, academy, seminary, college, university, or other lit erary or scientific institution, controlled by any church or sectarian denomination whatev er; nor shall any gran t or donation of land, money, or other personal propert y ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose. Indiana No use of sectarian Iowa No use of sectarian Kansas No use of sectarian Kentucky Part. 2, Sec. 189 No portion of an fund or tax now existing, or th at may hereafter be ra ised or levied for educational purposes, shall be approp riated to, or used by, or in aid of, any church, sectarian or denominational school. Louisiana No use of sectarian Maine No use of sectarian Maryland No use of sectarian Massachusetts No use of sectarian Michigan No use of sectarian Minnesota No use of sectarian Mississippi Art. IV, Sec. 66, Amend 3 No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use.
175 Art. VIII, Sec. 208 No religious or other sect, or sects, shall ever control any part of the school or other educational funds of this State; nor shall any funds be appropriated towards the support of any sectarian school; or to any school that at the time of receivi ng such appropriation is not conducted as a free school. Missouri Art. IX, Sec. 8 Neither the ge neral assembly, nor any county, city, tow n, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public sc hool, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donati on of personal property or real estate ever be made by the state, or any county, city, to wn, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever. Art. I, Sec. 7 That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minist er or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship. Montana Art. X, Sec. 6.1 The legislature, counties, cities, towns, school di stricts, and public corporations shall not make any direct or indirect appropria tion or payment from any public fund or monies, or any grant of lands or other property for any sectaria n purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, cont rolled in whole or in part by any church, sect, or denomination. Nebraska VII-11 Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; PROVIDED, that the Legislature may provide that the state or any political subdivision thereof may c ontract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under th e age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature. All public schools shall be free of sectarian instruction. The state shall not accept money or property to be used for sectarian purposes; PROVIDED, that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federa l grants, but no public funds of
176the state, any political subdi vision, or any public corpora tion may be added thereto. A religious test or qualification shall not be required of any te acher or student for admission or continuance in any school or institution suppor ted in whole or in part by public funds or taxation. Nevada Art. II, Sec. 2 The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school dist rict at least six months in every year, and any school district which shall allow instruction of a sectarian charact er therein may be deprived of its proportion of the in terest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general atte ndance of the children in each school district upon said public schools. Art. II, Sec. 10 No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose. New Hampshire No use of sectarian New Jersey No use of sectarian New Mexico Art. XII, Sec. 3 The schools, colleges, universities, and other educational inst itutions provided for by this constitution shall forever remain under the exclus ive control of the State, and no part of the proceeds arising from the sale or disposal of any lands granted to the State by Congress, or any other funds appropriated, levied; or collected for educational purposes, shall be used for the support of any sectarian, denominational, or private school, co llege, or university. Art. XXI, Sec. 4 Provision shall be made for the esta blishment and maintenance of a system. of public schools which shall be open to all the children of the St ate and free from sectarian control, and said schools shall always be conducted in English. New York No use of sectarian North Carolina No use of sectarian North Dakota Art. VIII, Sec. 1 A high degree of intelligence, patr iotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people, the legislative assembly shall make provision for the establishment and mainte nance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control. This legislative requirement shall be irrevocable w ithout the consent of the United States and the people of North Dakota. Art. VIII, Sec. 5 All colleges, universities, and other educational institutions, for the support of which lands have been granted to this state, or which are supported by a public tax, shall remain under the
177absolute and exclusive control of the state. No money ra ised for the support of the public schools of the state shall be appr opriated to or used for the su pport of any sectarian school. Ohio No use of sectarian Oklahoma Art. I, Sec. 5 Provisions shall be made for th e establishment and maintena nce of a system of public schools, which shall be open to all the children of the state and free from sectarian control; and said schools shall always be conducted in English: Provided, that nothing herein shall preclude the teaching of other languages in sa id public schools. [As Amended, November 7, 1978] Art. II, Sec. 5 No public money or property shall ever be appropriated, applied, dona ted, or used, directly or indirectly, for the use, benefit, or support of any sect, ch urch, denomination, or system of religion, or for the use, benefit or support of a ny priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such. Art. XI, Sec. 5 Such educational institutions shall remain under the exclusive control of the State and no part of the proceeds arising from the sale or disposal of any lands granted for educational purposes, or the income or rentals thereof, sha ll be used for the support of any religious or sectarian school, college, or university, and no por tion of the funds arising from the sale of sections thirteen or any indemnity lands selected in lieu thereof, either principal or interest, shall ever be diverted, either temporarily or permanently, from the purpose for which said lands were granted to the State. Oregon Art. I, Sec. 5 No money shall be drawn from th e Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly Pennsylvania Art. III, Sec. 15 No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school. Art. III, Sec. 29 No appropriation shall be made for charitable, educat ional or benevolent purposes to any person or community nor to any denominati on and sectarian institution, corporation or association: Provided, That appropriations may be made for pensions or gratuities for military service and to blind persons twenty-one year s of age and upwards and for assistance to mothers having dependent children and to aged persons without adequate means of support and in the form of scholarship grants or loan s for higher educational purposes to residents of the Commonwealth enrolled in institutions of higher learning except that no scholarship, grants or loans for higher educational purposes shall be given to persons enrolled in a theological seminary or school of theology.
178 Art. 8, Sec. 17, Amend. 10 Notwithstanding any provisions of this Constitu tion to the contrary, the General Assembly shall have the authority to enact laws providing for tax rebates, credits exemptions, grants-inaid, State supplementations, or otherwise provide special provisions for individuals, corporations, associations or nonprofit institutions, incl uding nonpublic schools (whether sectarian or nonsectarian) in order to alleviate the danger, damage, suffering or hardship faced by such individuals, corporations, associations, institutions or nonpublic schools as a result of Great Storms or Floods of September 1971, of June 1972, or of 1974, or of 1975. [Source: 1975 Pa. Laws 622] Art. 8, Sec. 17, Amend. 12 Notwithstanding any provisions of this Constitu tion to the contrary, the General Assembly shall have the authority to enact laws providing for tax rebates, credits exemptions, grants-inaid, State supplementations, or otherwise provide special provisions for individuals, corporations, associations or nonprofit institutions, incl uding nonpublic schools (whether sectarian or nonsectarian) in order to alleviate the danger, damage, suffering or hardship faced by such individuals, corporations, associations, institutions or nonpublic schools as a result of Great Storms or Floods of September 1971, of June 1972, or of 1974, or of 1975 or of 1976. Rhode Island No use of sectarian South Carolina Art. XI, Sec. 4 No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of a ny religious or other private educational institution. South Dakota Art. VI, Sec. 3 The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, th e invasion of the rights of others, or justify practices inconsistent with the peace or safety of the State. No pe rson shall be compelled to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious establishment or mode of worshi p. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution. Art. VIII, Sec. 16 No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or a ny county or municipality within th e state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or in stitution aided or supported by the state.
179 Art. XXII, Sec. 1 Fourth, That provision shall be made for the establishment a nd maintenance of systems of public schools, which shall be op ened to all the children of this state, and free from sectarian control. Art. XXVI, Sec. 18 Fourth That provision shall be made for th e establishment and maintenance cf systems of public schools which shall be ope ned to all the childre n of this state and free from sectarian control. Tennessee No use of sectarian Texas Art. I, Sec. 7 Appropriations for Sectarian Purpos es. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect or religious society, theol ogical or religious seminary; nor shall property belongi ng to the State be appropriated for any such purposes. Art. VII, Sec. 5 The available sc hool fund shall be applied annually to the support of the public free schools. Except as provided by this secti on, the legislature may not enact a law appropriating any part of the permanent school fund or available sc hool fund to any other purpose. The permanent school fund and the available school fund may not be appropriated to or used for the support of any sectarian school. The available school fund shall be distributed to the several counties according to their scholastic population and applied in the manner provided by law. Utah Art. III, Sec. 4, Amend. 33 Fourth: The Legislature shall make laws for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and be free from sectarian control. (Amended 1/1/1947) Art. X, Sec. 1, Amend. 184 The Legislature shall provide fo r the establishment and maintenance of the state's education systems including: (a) a public education system, which shall be open to all children of the state; and (b) a higher education system. Both sy stems shall be free from sectarian control. (Amended 7/1/1987) Vermont No use of sectarian Virginia Art. IV, Sec. 16 The General Assembly shall no t make any appropriation of public funds, personal property, or real estate to any church or sectarian soci ety, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, contro lled by any church or sectarian society. Nor shall the General A ssembly make any like appropriation to any charitable institution which is not owned or controlled by the Commonwealth; the General Assembly may, however, make appropriations to nonsectarian in stitutions for the reform of youthful criminals and may also authorize c ounties, cities, or towns to make such appropriations to any charitable institution or association.
180 Art. VIII, Sec. 11 The General Assembly may provide for loans t o, and grants to or on behalf of, students attending nonprofit institutions of higher education in th e Commonwealth whose primary purpose is to provide collegiate or graduate educ ation and not to provide religious training or theological education. The General Assembly may also provide for a State agency or authority to assist in borrowing money for cons truction of educational facilities at such institutions, provided that the Commonwealth shall not be liable for any debt created by such borrowing. The General Assembly may also provi de for the Commonwealth or any political subdivision thereof to contract with such institutions for the provision of educational or other related services. [As Amended January 1, 1975] Washington Art. IX, Sec. 4 All schools maintained or supported wholly or in pa rt by the public funds shall be forever free from sectarian control or influence. Art. XXVI Provision shall be made for the establishm ent and maintenance of systems of public schools free from sectarian control, which shall be open to all the children of said state. West Virginia No use of sectarian Wisconsin Art. X, Sec. 3 The legislature shall provide by law fo r the establishment of district schools, which shall be as nearly uniform as practicable; and such schools sh all be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectaria n instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of st udents during regular school hours. [As amended April 1972] Art. X, Sec. 6 Provision shall be made by law for the esta blishment of a state universit y at or near the seat of state government, and for connecting with the sa me, from time to time, such colleges in different parts of the state as the interests of education may require. The proceeds of all lands that have been or may hereafter be granted by the United States to the state for the support of a university shall be and remain a perpetual fund to be called the university fund, the interest of which shall be appr opriated to the support of the state university, and no sectarian instruction shall be allowed in such university. Wyoming Art. I, Sec. 19 No money of the State shall ever be given or appropriated to any sectarian or religious society or institution. Art. III, Sec. 36 No appropriation shall be made for ch aritable, industrial, educatio nal or benevolent purposes to any person, corporation or community not under the absolute control of the State, nor to any denominational or sectaria n institution or association.
181 Art. VII, Sec. 8, Amend. 48 Provision shall be made by general law for the equitable allocation of such income among all school districts in the state. Bu t no appropriation shall be made from said fund to any district for the year in which a school has not been main tained for at least thre e (3) months; nor shall any portion of any public school fund ever be used to support or assist any private school, or any school, academy, seminary, college or other institution of learning controlled by any church or sectarian organization or religious denomi nation whatsoever. Art. VII, Sec. 12 Sectarianism prohi bited. No sectarian instruction, qualifications or te sts shall be imparted, exacted, applied or in any manner tolerated in th e schools of any grade or character controlled by the State, nor shall attendan ce be required at any religious service therein, nor shall any sectarian tenets or doctrines be taught or favor ed in any public school or institution that may be established under this constitution. Art. XXI Sec. 28 The legislature shall make laws for the estab lishment and maintenance of systems of public schools which shall be open to all the children of the State and free from sectarian control.
182 APPENDIX B THE FIFTY STATES AND TH EIR DATES OF STATE HOOD # State Date of Statehood # State Date of Statehood 1 Delaware December 7, 1787 26 Michigan January 26, 1837 2 Pennsylvania December 12, 1787 27 Florida March 3, 1845 3 New Jersey December 18,1787 28 Texas December 29, 1845 4 Georgia January 2, 1788 29 Iowa December 28, 1846 5 Connecticut January 8, 1788 30 Wisconsin May 29, 1848 6 Massachusetts February 6, 1788 31 California September 9, 1850 7 Maryland April 28, 1788 32 Oregon February 14, 1859 8 South Carolina May 23, 1788 33 Kansas January 29,1861 9 New Hampshire June 21, 1788 34 West Virginia June 20, 1863 10 Virginia June 25, 1788 35 Nevada October 31, 1864 11 New York July 26,1788 36 Nebraska March 1, 1867 12 North Carolina November 21, 1789 37 Colorado August 1, 1876 13 Rhode Island May 29, 1790 38 North Dakota November 2, 1889 14 Vermont March 4, 1791 39 South Dakota November 2, 1889 15 Kentucky June 1, 1792 40 Montana November 8, 1889 16 Tennessee June 1, 1796 41 Washington November 11, 1889 17 Ohio March 1, 1803 42 Idaho July 3, 1890 18 Louisiana April 30, 1812 43 Wyoming July 10, 1890 19 Indiana December 11, 1816 44 Utah January 4, 1896 20 Mississippi December 10, 1817 45 Oklahoma November 16, 1907 21 Illinois December 3, 1818 46 New Mexico January 6, 1912 22 Alabama December 14, 1819 47 Arizona February 14, 1912 23 Maine March 15, 1820 48 Alaska January 3, 1959 24 Missouri August 10, 1821 49 Hawaii August 21, 1959 25 Arkansas June 15, 1836 50 Oregon February 14, 1859
183 APPENDIX C NINETEENTH CENTURY PAPA L DECREES EXPRESSING HOSTI LITY TO AMERICAN IDEOLOGY AND POLITY While it is not directly within the scope of this study, to unde rstand some of the attitudes of nineteenth century anti-Catholicism, it is impor tant to recognize the role played by the rise of reactionary conservatism in the Ca tholic Church of that era. Th roughout the nineteenth century, a series of Popes promulgated a series of lette rs and pronouncements declaring their opposition to many of the political currents of that century including freedom of conscience, freedom of the press, and democracy that were enshrined in the American political tradition. These pronouncements, especially when coupled with the dogma of Papa l Infallibility adopted by the First Vatican Council (8 Dec. 1869 20 Oct. 1870), fueled American Protestant and secularist fears produced by the influx of immigrants from predominantly Catholic countries. A quick survey of relevant passages from Pa pal encyclicals and letters illustrates Papal claims of infallibility, rejecti on of fundamental elements of the American democratic tradition, and demands for Catholic obedience to church over state that pl ayed into Protestant fears and anti-Catholic hysteria. Pope Pius VII, On a Return to Gospel Principles 15 May 1800 Para. 18 : For it is certain that it is beneficial for their own affairs, as God has laid down, for kings to submit their will to the priests of Christ when God's business is in question, rather than imposing it. Pope Gregory XVI, On Liberalism and Re ligious Indifferentism, 15 August 1832 Para. 5 : We speak of the things which you see with your own eyes, which We both bemoan. Depravity exults; science is impudent; liberty, dissol ute The divine aut hority of the Church is opposed and her rights shorn off. She is subjected to human reason and with the greatest injustice exposed to the hatred of the peopl e and reduced to vile servitude; Para. 14 : This shameful font
184 of indifferentism gives rise to that absurd and erroneous proposition which claims that liberty of conscience must be maintained for everyone; Para. 15 : Here We must incl ude that harmful and never sufficiently denounced freedom to publish a ny writings whatever and disseminate them to the people, which some dare to demand and promote with so great a clamor; Para. 19 : These beautiful examples of the unchanging subjection to the princes necessarily proceeded from the most holy precepts of the Christian religion. They condemn the detestable insolence and improbity of those who, consumed with the unbrid led lust for freedom, are entirely devoted to impairing and destroying all ri ghts of dominion while bringing servitude to the people under the slogan of liberty; Para. 20 : Nor can We predict happier times for religion and government from the plans of those who desire vehemently to separa te the Church from the state, and to break the mutual concord between temporal authority and the priesthood. Pope Pius IX, On The Need For Civil Sovereignty January 19, 1860 Para. 12 : Do you, therefore, defend this cause and inflame more and more daily the faithful entrusted to your care so that under your lead ership they do not cease either defending the Catholic Church and this Holy See or protec ting the civil dominion of the same See and the patrimony of St. Peter. Together with your faith ful pray that God may command the winds and the water and come to the benefit of Us and His Church. Pray also that He may enlighten enemies to bring them back to the pa ths of truth, justice, and salvation. Pope Pius IX, On Promotion of False Doctrines 10 August 1863 Para. 8 : Also well known is the Catholic teaching that no one can be saved outside the Catholic Church. Eternal salvation cannot be obtained by those who oppose the aut hority and statements of the same Church and are stubbo rnly separated from the unity of the Church and also from the successor of Peter, the Roman Pontiff, to whom "the custody of the vineyard has been committed by the Savior." Para.12 : You are certainly aware, our belove d sons and venerable brothers, that
185 every kind of impious and deceitful writing, lie s, calumny, and blasphemy has been let loose from hell. No pain has been spared to transfer schools to non -Catholic teachers Pope Pius IX, Condemning Current Errors, 8 December 1864 Para. 3 : Which false and perverse opinions ar e on that ground the more to be detested, because they chiefly tend to this, that that sa lutary influence be impeded and (even) removed, which the Catholic Church, according to the in stitution and command of her Divine Author, should freely exercise even to the end of the wo rld -not only over private individuals, but over nations, peoples, and their sovere ign princes; and (tend also) to ta ke away that mutual fellowship and concord of counsels between Church and State which has ever proved itself propitious and salutary, both for religious and ci vil interests. For you we ll know, venerable brethren, that at this time men are found not a few who, applying to civil society the impious and absurd principle of "naturalism," as they call it, dare to teach that "the best constitution of public society and (also) civil progress altogether require that human society be conducte d and governed without regard being had to religion any more than if it did not exist; or, at least, without any distinction being made between the true religion and false ones." From which totally false idea of social government they do not fear to foster that errone ous opinion that "liberty of conscience and worship is each man's personal right, which ought to be legally proclaimed and asserted in every rightly constituted society; and th at a right resides in the citizens to an absolute liberty, which should be restrained by no authority whether ecclesiastic al or civil, whereby they may be able openly and publicly to manifest and declare any of their ideas whatever, either by word of mouth, by the press, or in any other way." Pope Pius IX, Syllabus of Errors 8 December 1864 The following propositions are condemned Para. 15: Every man is free to embrace and profess that religion which, guided by the light of reason, he sh all consider true. Para. 18 :
186 Protestantism is nothing more th an another form of the same tr ue Christian religion, in which form it is given to please God equally as in the Catholic Church. Para. 22 : The obligation by which Catholic teachers and authors are strictly b ound is confined to those things only which are proposed to universal belief as dogmas of faith by the infallible judgment of the Church. Para. 24: The Church has not the power of using force, nor has she any tempor al power, direct or indirect. Para. 42 : In the case of conflicting laws enact ed by the two powers, the civil law prevails. Para. 45 : The entire government of public school s in which the youth of a Christian state is educated, except (to a certain extent) in th e case of episcopal seminaries, may and ought to appertain to the civil power, and belong to it so far that no othe r authority whatsoever shall be recognized as having any right to interfere in the discip line of the schools, the arrangement of the studies, the conferring of degrees, in th e choice or approval of the teachers. Para. 4: The best theory of civil society requires that popular scho ols open to children of every class of the people, and, generally, all public institutes intended for in struction in letters a nd philosophical sciences and for carrying on the education of youth, should be freed from all ecclesiastical authority, control and interference, and should be fully subjected to the civil and political power at the pleasure of the rulers, and according to the sta ndard of the prevalent opinions of the age. Para. 48: Catholics may approve of the system of educ ating youth unconnected w ith Catholic faith and the power of the Church, and which regards the k nowledge of merely natu ral things, and only, or at least primarily, the ends of earthly social lif e. Kings and princes are not only exempt from the jurisdiction of the Churc h, but are superior to the Church in deciding questions of jurisdiction. Para. 55 : The Church ought to be separated from th e State, and the State from the Church. Para. 57: The science of philosophical th ings and morals and also civil laws may and ought to keep aloof from divine and ec clesiastical authority. Para. 77 : In the present day it is no longer
187 expedient that the Cathol ic religion should be held as the on ly religion of the State, to the exclusion of all other forms of worship. Pope Leo XIII, On the Evils of Society, 21 April 1878 Para. 6 : Furthermore, that kind of civilization whic h conflicts with the doctrines and laws of holy Church is nothing but a worthle ss imitation and meaningless name Para. 13 : It is your duty, venerable brothers, sedulously to strive that the seed of heavenly doctrine be sown broadcast in the field of God, and that the teachings of the Cathol ic faith may be implanted early in the souls of the faithful, may strike deep root in them, and be kept free from the ruinous blight of error. The more the enemies of religion exer t themselves to offer the uninformed, especially the young, such instruction as darkens the mind and corrupts morals, th e more actively should we endeavor that not only a su itable and solid method of edu cation may flourish but above all that this education be wholly in harmony with the Catholic faith in its literature and system of training, and chiefly in philosophy, upon which the di rection of other scienc es in great measure depends. Pope Leo XIII, On Christians as Citizens 10 January 1890 Para. 7 : As to which should be preferred no one ought to balance for an in stant. It is a high crime indeed to withdraw allegiance from God in order to please men, an act of consummate wickedness to break the laws of Jesus Christ, in order to yield obedience to earthly rulers, or, under pretext of keeping the civil law, to ignore the rights of the Church; "we ought to obey God rather than men." Para. 10 : But, if the laws of the State are ma nifestly at variance with the divine law, containing enactments hurtful to the Churc h, or conveying injunctions adverse to the duties imposed by religion, or if they violate in the person of the supreme Pontiff the authority of Jesus Christ, then, truly, to resist becomes a positive duty, to obey, a crime; a crime, moreover, combined with misdemeanor against the State itse lf, inasmuch as every offense leveled against
188 religion is also a sin against the State. Here an ew it becomes evident how unjust is the reproach of sedition; for the obedience due to rulers and le gislators is not refused, but there is a deviation from their will in those precepts only which they have no power to enjoin. Para. 42: It is, then, incumbent on parents to strain every nerve to ward off such an outrage, and to strive manfully to have and to hold exclusive authority to direct the education of their offspring, as is fitting, in a Christian manner, and first and fore most to keep them away from schools where there is risk of their drinki ng in the poison of impiety. Pope Leo XIII, Concerning New Opinions, Virtue, Na ture and Grace, with regard to Americanism, 22 January 1899 Para. 15-16: These dangers, viz., the confounding of license with liberty, the passion for discussing and pouring contempt upon any possible subject, the assumed right to hold whatever opinions one pleases upon any subject and to set them forth in print to the world, have so wrapped minds in darkness that there is now a gr eater need of the Church's teaching office than ever before, lest people become unmindful both of conscience and of duty. We, indeed, have no thought of rejecting everything th at modern industry and study has produced; so far from it that we welcome to the patrimony of truth and to an ever-widening scope of public well-being whatsoever helps toward the progress of learning and virtue. Yet all this, to be of any solid benefit, nay, to have a real existence and growth, can only be on the condition of recognizing the wisdom and authority of the Church. Para. 33 : From the foregoing it is manifest, beloved son, that we are not able to give approval to those views which, in their collective sense, ar e called by some "Americanism." But if by this name are to be understood certain endowments of mind which belong to the American people, just as other characteristics be long to various other nations, and if, moreover, by it is designated your political condition and the laws and cust oms by which you are governed, there is no reason
189 to take exception to the name. But if this is to be so understood that the doctrines which have been adverted to above are not only indicated, but exalted, there can be no manner of doubt that our venerable brethren, the bishops of America, w ould be the first to repudiate and condemn it as being most injurious to themselves and to their country. For it would give rise to the suspicion that there are among you some w ho conceive and would have th e Church in America to be different from what it is in the rest of the world.
190 APPENDIX D THE FLUSHING REMONSTRANCE Introductio n Written in 1657 by the English citizens of the Long Island village of Flushing, the Remonstrance asserted their right to freedom of conscience agains t the autocracy of the governor of their colony of New Netherland. The Flushing Remonstrance protested Gover nor Peter Stuyvesant's arrest, torture and expulsion of a Quaker preacher for defying hi s ban on all religions but Dutch Reformed Protestantism. The 30 signatories were also Dutc h Reformed Protestants, but demanded that in the new colony: If any persons Presbyterian, Independent, Baptist or Quaker come in love to us, we cannot in conscience lay violen t hands upon them; and that the law of love, peace and liberty [extends] to Jews, Turks and Egyptians. Furthermore, the citizens of Flushing wrote: Let every man st and or fall to his own Master. Stuyvesant replied by arresti ng and expelling John Bowne, a Flushing resident, who had allowed his house to be used by Quakers. Bowne th en appealed to the board of the Dutch West India Company in Holland and won their s upport. The company overruled Stuyvesant and asserted that there would be liberty of conscience in its American territories. When the Bill of Rights was adopted in 1791 the freedom of cons cience presented in the Flushing Remonstrance became a part of the American constitution.1 1 See also, The Flushing Remonstrance December 27, 1657. New York Yearly Meeting of the Religious Society of Friends, online at: http://www.nyym.org/flushing/history.html ; and Simon Jenkins, Remembering the Flushing Remonstrance, Times, Dec 16, 2007. Available online at http://www.ocnus.net/artman2/pub lish/Analyses_12/Remembering_the_Flushing_Remonstrance.shtml
191 Remonstrance of the Inhabitants of the Town of Flushing to Governor Stuyvesant, December 27, 16572 Right Honorable You have been pleased to send unto us a cer tain prohibition or command that we should not receive or entertain any of those people called Quakers becau se they are supposed to be, by some, seducers of the people. For our part we ca nnot condemn them in this case, neither can we stretch out our hands against them, for out of Chri st God is a consuming fire, and it is a fearful thing to fall into the hands of the living God. Wee desire therefore in this case not to judge least we be judged, neither to condemn least we be condemned, but rather let every man stand or fall to his own Master. Wee are bounde by the law to do good unto all men, especially to those of the household of faith. And though for the present we seem to be unsensible for the la w and the Law giver, yet when death and the Law assault us, if wee have our advocate to seeke, wh o shall plead for us in this case of conscience betwixt God and our own souls; the powers of this world can neither attach us, neither excuse us, for if God justifye who can condemn and if God condemn there is none can justifye. And for those jealousies and suspicions wh ich some have of them, that they are destructive unto Magistracy and Mi nisterye, that cannot bee, for th e Magistrate hath his sword in his hand and the Minister hath the sword in hi s hand, as witnesse those two great examples, which all Magistrates and Ministers are to fo llow, Moses and Christ, whom God raised up maintained and defended against all enemies both of flesh and spirit; and therefore that of God will stand, and that which is of man will come to nothing. And as the Lord hath taught Moses or the civil power to give an outward liberty in the state, by the law written in his heart designed for the good of all, and can truly judg e who is good, who is evil, who is true and who is false, and 2 Online at: http://www.nyym.org/flushing/remons.html
192 can pass definitive sentence of life or death against that man which arises up against the fundamental law of the States General; soe he ha th made his ministers a savor of life unto life and a savor of death unto death. The law of love, peace and liberty in the st ates extending to Jews, Turks and Egyptians, as they are considered sons of Adam, which is the glory of the outward state of Holland, soe love, peace and liberty, extending to all in Christ Jesus, cond emns hatred, war and bondage. And because our Saviour sayeth it is impossible bu t that offences will come, but woe unto him by whom they cometh, our desire is not to offend one of his little ones, in whatsoever form, name or title hee appears in, whether Pres byterian, Independent, Baptist or Quaker, but shall be glad to see anything of God in any of them, desiring to doe unto all men as we desire all men should doe unto us, which is the true law both of Church and St ate; for our Saviour saye th this is the law and the prophets. Therefore if any of these said persons come in love unto us we cannot in conscience lay violent hands upon them, but give them free egresse and regresse unto our Town, and houses, as God shall persuade our consciences, for we are bounde by the law of God and man to doe good unto all men and evil to noe man. And this is according to the pa tent and charter of our Towne, given unto us in the name of the States General, which we are not willing to infringe, and violate, but shall houlde to our patent and shall remaine, your humble subjects, the inhabitants of Vlishing.
193 APPENDIX E MEMORIAL AND REMONSTRANCE AGAINST RE LIGIOUS ASSESSMENTS, 20 JUNE 1785 1 To the Honorable the General As sembly of the Commonwealth of Virginia A Memorial and Remonstrance We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christ ian Religion," and conceiving that the same if finally armed with the sanctions of a law, w ill be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate ag ainst it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, 1. Because we hold it for a fundamental and und eniable truth, "that Religion or the duty which we owe to our Creator and the manner of di scharging it, can be directed only by reason and conviction, not by force or vi olence." [Virginia Decl aration of Rights, art. 16] The Religion then of every man must be left to the convicti on and conscience of every man; and it is the right of every man to exercise it as thes e may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of othe r men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is th e duty of every man to render to the Creator such homage and such only as he beli eves to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the cl aims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Ci vil Society, who enters into any 1 James Madison, The Papers of James Madison. William T. Hutchinson et al. Eds. Chicago and London: University of Chicago Press, 1962--77 (vols. 110), 8:298304. Available online at http://presspubs.uchicago.edu/founders/documents/amendI_religions43.html
194 subordinate Association, must always do it with a reservatio n of his duty to the General Authority; much more must ever y man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Univer sal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority. 2. Because if Religion be exempt from the aut hority of the Society at large, still less can it be subject to that of the Le gislative Body. The latte r are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the coordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained ; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the co mmission from which they derive their authority, and are Tyrants. The People who submit to it ar e governed by laws made neither by themselves nor by an authority derived from them, and are slaves. 3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first du ty of Citizens, and one of the nobl est characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the ques tion in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see th at the same authority which can establish
195 Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute th ree pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? 4. Because the Bill violates that equality whic h ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," [Virginia Declaration of Rights, art. 1] all men are to be considered as entering into Societ y on equal conditions; as relinquishing no more, and therefore retaining no less, one than anot her, of their natural rights. Above all are they to be considered as retaining an equal title to the free exercise of Religion according to the dictates of Conscience." [Virgini a Declaration of Rights, art. 16] Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to thos e whose minds have not yet yielded to the evidence which has convinced us If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to othe rs peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of thei r Religions unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary priv ileges by which proselytes may be enticed from all others? We think too favorab ly of the justice and good sens e of these denominations to believe that they either covet pre-eminences ove r their fellow citizens or that they will be seduced by them from the comm on opposition to the measure.
196 5. Because the Bill implies ei ther that the Civil Magistrate is a competent Judge of Religious Truth; or that he ma y employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Ru lers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation. 6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradi ction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and fl ourished, not only without the support of human laws, but in spite of every opposition from them and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by hu man policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence a nd the patronage of its Author; and to foster in those w ho still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits. 7. Because experience witnesseth that ecc lesiastical establishments, instead of maintaining the purity and efficacy of Religion, ha ve had a contrary operation. During almost fifteen centuries has the legal establishment of Ch ristianity been on trial. What have been its fruits? More or less in all places, pride and indol ence in the Clergy, ignoran ce and servility in the laity, in both, superstition, bigotry and persecutio n. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; thos e of every sect, point to the ages prior to its incorporation with Civil policy. Propose a rest oration of this primitive State in which its Teachers depended on the voluntary rewards of thei r flocks, many of them predict its downfall.
197 On which Side ought their testimony to have grea test weight, when for or when against their interest? 8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the s upport of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within the c ognizance of Civil Governme nt how can its legal establishment be necessary to Ci vil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been se en to erect a spiritual tyranny on the ruins of the Civil authority; in many inst ances they have been seen upholding the thrones of political tyranny: in no instance have th ey been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to secu re & perpetuate it needs them not. Such a Government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which pr otects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another. 9. Because the proposed establishment is a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the num ber of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Inst ead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equa l rank of Citizens all t hose whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous suffe rer under this cruel scou rge in foreign Regions,
198 must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain repose from his Troubles. 10. Because it will have a like tendency to ba nish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they no w enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms. 11. Because it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wh erever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently de stroys its malignant influence on the health and prosperity of the State. If with the salutary eff ects of this system under our own eyes, we begin to contract the bounds of Relig ious freedom, we know no name th at will too severely reproach our folly. At least let warning be taken at the first fruits of the threaten ed innovation. The very appearance of the Bill has transformed "that Christ ian forbearance, love and charity," [Virginia Declaration of Rights, art. 16] which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law? 12. Because the policy of the Bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gi ft ought to be that it may be imparted to the whole race of mankind. Compare the number of t hose who have as yet received it with the
199 number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the dispr oportion? No; it at once di scourages those who are strangers to the light of revelation from co ming into the Region of it; and countenances by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of Levelling as far as possible, ev ery obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circumscribe it with a wall of defence against the encroachments of error. 13. Because attempts to enforce by lega l sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacke n the bands of Society. If it be difficult to execute any law which is no t generally deemed necessary or salutary, what must be the case, where it is deemed invalid a nd dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? 14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens, and no satisfactory method is yet proposed by which the voice of the ma jority in this case may be determined, or its influence secured. "The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly." But the representation must be made equal, before the voice either of the Representatives or of the Counties will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appe al to the latter will reverse the sentence against our liberties.
200 15. Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we wei gh its importance, it cannot be less dear to us; if we consult the "Declaration of those rights which pert ain to the good people of Virginia, as the basis and foundatio n of Government," it is enumer ated with equal solemnity, or rather studied emphasis. Either then, we must say, that the Will of the Legislature is the only measure of their authority; and that in the plen itude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may cont roul the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judi ciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enac t into law the Bill under consideration. We the Subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; ea rnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illu minating those to whom it is addressed, may on the one hand, turn their Councils from every ac t which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his blessing, may redound to their own praise, and may establish more firmly the liberties, the prosperity and th e happiness of the Commonwealth.
201 APPENDIX F JEFFERSONS BILL FOR ESTABLISHING R ELIGIOUS FREEDOM WHICH BECAME THE VIRGINIA STATUTE FO R RELIGIOUS FREEDOM, 1779 SECTION I. Well aware that the opinions and belief of men de pend not on their own will, but follow involuntarily the evidence propo sed to their minds; that Almighty God hath created the mind free, and manifested his supr eme will that free it shall remain by making it altogether insusceptible of restra int; that all attempts to influe nce it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocri sy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone; th at the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, bei ng themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time: That to compel a man to furnish contribu tions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasi on, is depriving him of the comfortable liberty of giving his contributions to the pa rticular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteo usness; and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremittin g labours for the instruction of mankind; that our civil rights have no dependa nce on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribi ng any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of tr ust and emolument, unless he
202 profess or renounce this or that re ligious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fello w citizens, he has a natural right; that it tends also to corrupt the principles of that very religion it is meant to encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally pr ofess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that the opi nions of men are not the object of civil government, nor under its jurisdiction; that to suff er the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous falacy, which at once destroys all relig ious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of othe rs only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil g overnment for its officers to interfere when principles break out into overt acts against p eace and good order; and finall y, that truth is great and will prevail if left to herself; that she is th e proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dange rous when it is permitted freely to contradict them. SECT. II. WE the General Assembly of Virg inia do enact that no man shall be compelled to frequent or support any reli gious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
203 SECT. III. AND though we well know that this Assembly, elected by the people for the ordinary purposes of legislat ion only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to ou r own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of manki nd, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, su ch act will be an infringement of natural right.
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BIOGRAPHICAL SKETCH Douglas Johnson is the Manager of e-Learning Support Services in the Office of Ac ademic Technology at the University of Florida. He has previously taken a B.A. in history from the University of Florida, a Master of Divinity fr om Emory University, and a Specialist in Education in social studies education from the University of Florida. Doug served as a United Methodist Minister for ten years, as a s econdary school teacher for fourt een years, and has worked in instructional design, system admini stration, user support, and I.T. management at the University of Florida for the last 8 years.