Constitutional Law, Education, National, Rob Natelson, Uncategorized

Natelson: Forthcoming case a chance for high court to strike down bigoted state constitution rules

On January 22 the Supreme Court will hear a religious freedom case. The outcome will determine whether states may manage their educational systems to discriminate against religion or favor some religions over others.

The case is Espinoza v. Montana Department of Revenue. The plaintiffs are religious families with children. The defendant is a state agency that claims the Montana constitution requires it to deny educational choice to those families.

The Supreme Court (SCOTUS) interprets the Constitution’s First Amendment to impose several rules governing how states treat religion. Two rules are central to the Espinoza case.

Rule #1 is that government may not discriminate against religion or religious people generally. The courts sometimes allow officials to bend this rule to avoid state “entanglement” with religion or religious institutions. For example, a state granting educational scholarships to students in most courses of study may deny support for purely devotional theology (such as for ministry courses), if the denial applies to all religions equally.

Rule #2 is much stricter: Government must treat all religions equally. A state may not prohibit aid to students studying for the Jewish rabbinate if it grants aid to students studying for the Christian ministry. The courts almost never allow government officials to play favorites among religions.

In light of these rules, it is surprising to learn that most state constitutions have provisions designed to favor some religions over others. They are anti-sectarian clauses, and they require or permit the state to support “non-sectarian” schools, but prohibit support for “sectarian” schools.

But what does “sectarian” mean? Today, many people use the word as a synonym for “religious.” If we adopt that meaning, then state constitutions with anti-sectarian clauses potentially violate Rule #1 by supporting secular schools but not religious ones. In defense, states argue this discrimination is permissible to avoid state “entanglement” with religion.

The Espinoza case serves as an example. The Montana legislature passed a law allowing taxpayers to take income tax credits of up to $150 if they donated to foundations granting K-12 scholarships. The Montana Supreme Court voided the law, claiming it breached the state constitution’s anti-sectarian clause because the law permitted scholarships for students in religious as well as in secular schools. For justification, the court cited the need to (a) support government schools and (b) avoid state entanglement with religion.

One wonders how protecting a state school monopoly can justify violating religious freedom. Also, SCOTUS has held that a single buffer between the state and a religious school—student choice—is sufficient to avoid “entanglement.” The Montana law actually created a triple buffer: the choice of the donor, the choice of the scholarship foundation, and the choice of the student or his or her family.

So in all probability, if we interpret the word “sectarian” to mean “religious,” then Montana has discriminated against religion generally, thereby violating Rule #1.

In fact, however, Montana also has violated Rule #2—the requirement that the state treat religions equally. This is because the history of anti-sectarian clauses shows that “sectarian” is not a synonym for “religious” and anti-sectarian clauses were not designed merely to discriminate against religion. Instead, they were designed to discriminate in favor of some religions and against others.

Here is the background: During the 19th and early 20th centuries, public schools usually were controlled by mainline Protestants, and school authorities promoted mainline Protestant theology. For example, teachers and textbooks often taught from the King James Version of the Bible—a version accepted by most Protestants, but rejected by Catholics and Jews.

The Protestant public school establishment wanted to protect its privileged access to state funds. So it convinced state constitution-writers to ban public aid to “sectarian” competitors.

“Sectarian” was a very convenient word for the Protestant public school establishment. Nineteenth and early 20th century dictionaries, newspapers, and other sources show that it encompassed all religions except mainline Protestantism. In the rhetoric of the time, Catholics were “sectarian.” So were Jews, Mormons, Muslims—and even those Protestant evangelicals the mainliners thought over-enthusiastic. The one group never called sectarian were mainline Protestants.

Anti-sectarian clauses were designed to permit public money to flow to Episcopal, Methodist, and Presbyterian schools while denying it to Jewish, Mormon, Muslim, and Catholic schools.

Constitutional commentators often call anti-sectarian clauses “Blaine Amendments,” after the 19th century statesman James G. Blaine. Supposedly they originated with a proposed amendment to the U.S. Constitution that Blaine sponsored in 1875, when a member of Congress. Allegedly Blaine did so in the cause of anti-Catholic bigotry.

But that story is both inaccurate and unfair to Blaine. Anti-sectarian clauses were inserted in some state constitutions well before Blaine’s 1875 proposal. Moreover, Blaine’s amendment, while of questionable wisdom, did not use the word “sectarian” and did not overtly discriminate among religions. Nor was Blaine anti-Catholic: He was devoted to his Catholic mother, he may well have been baptized in that faith, and throughout his political career he stoutly resisted the anti-Catholic rhetoric then favored by other Republican politicians. As U.S. Secretary of State, Blaine opened our historic Pan-American outreach to (Catholic) Latin America.

Anti-sectarian clauses were—and are—far worse than anything Blaine promoted. A state convention inserted one such clause into Montana’s first constitution at the height of the anti-Catholic furor. (By contrast, the word “nonsectarian” was used favorably one the convention floor.)

In 1972 Montana discarded its first constitution for a replacement. But the convention drafting the new document preserved the anti-sectarian clause. It did so even after the delegates were warned about the sordid history of such provisions. Moreover, supporters of the new constitution affirmed repeatedly—both during the convention and during the subsequent ratification campaign—that the new clause had the same meaning as the old. And they were right about that: Dictionaries circulating in 1972 confirm the insulting definition of “sectarian.”

There are several reasons for hoping the plaintiffs win the Espinoza case. First, the Montana Supreme Court overreached when it struck down the entire scholarship credit law, because only a narrower issue was before the court. The Montana justices have a history of overreach of which SCOTUS is well aware, having reversed them several times recently.

Second, SCOTUS already has served notice that anti-sectarian clauses are constitutionally suspect.

Third, the disgraceful history of anti-sectarian clauses is so evident that it is hard to ignore.

Finally, almost everyone recognizes that monopoly is not a good thing, particularly when it is propped up by the state. The problems afflicting public schools—high cost, impaired effectiveness, and political interference—are classic symptoms of government monopolies. Surely U.S. Supreme Court justices recognize that as well.

Rob Natelson served as a law professor for 25 years, and is nationally known as a constitutional scholar. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver, and author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2015).  A version of this article first appeared in The Epoch Times.

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