March 28, 2003

Separation of Church and States: An Examination of State Constitutional Limits on Government Funding for Religious Institutions

9:00 am-5:00 pm
Chapel Hill, NC

Due to technical difficulties, we are unable to provide the transcript from the Q&A of these panels.

Session 1: History of the Blaine Amendments
Session 2: Blaine Amendments and the First Amendment
Session 3: Blaine Amendments: Current Litigation and Legislation


Session One

 

JASON KAY: My name is Jason Kay. I’m the editor-in-chief of the First Amendment Law Review, formed a little over a year ago for the purpose of exploring ideas related to the First Amendment, which we regard as distinctly different from advocating ideas related to the First Amendment. That is a difficult task in a law school environment where advocacy and the law are both components of the curriculum. Yet we believe that is something that is very important. It is a need, and we are very glad to fill it. Toward that end, we are very pleased to provide a forum this morning for a number of very distinguished people to be able to come and share their ideas and research and maybe even, we hope, a little bit of their passions.

I would like to give a couple of quick thank yous. It’s very clear that a large amount of work has gone into this, and I would like very much to thank our advisor, Professor Arnold Loewy, who’s right up here in the front; Professor Bill Marshall, who is there somewhere, hiding in the back; and Dean Gene Nichol, who is right next to him. Also, the journal’s staff has put in a tremendous amount of effort for this. I’m very thankful to them. In particular, Angela Xenakis, who is hiding somewhere right now; she made me swear not to thank her – there she is over there – and I said that I would, and I winked at her, which meant I had no intention of not thanking her this morning. Angela’s mom and dad are also here; they’re back there now. Susan Brown has also spent a large amount of time on this. These two folks are particularly important because, if you have questions, they are the brain trust of this symposium, go to them; they know what’s going on. You can come to me, but I’m likely to say I don’t know what’s going on, please ask Angela or Sue. And Susan’s mom is also here this morning. We collected all of our relatives to come down and visit.

Thank you all very much for coming. On behalf of the law school, the First Amendment Law Review, the Pew Charitable Trusts and Melissa Rogers, who’s put in a tremendous amount of time on this as well, I’d like to welcome you to our symposium at this time. I’ll introduce the dean of this law school, Gene Nichol.

GENE NICHOL: Thanks, Jason. Let me just very quickly offer my welcome to you as well. It is great to have you here on a bright blue Friday morning. I wanted, too, to take just a second to say a word of congratulations to the First Amendment Law Review. Almost none of you have had the unfortunate experience of being a dean of a law school for a long period of time. I have, and one of the frequent occurrences is students coming and saying, I want to start a new law review; I had this idea that we should have a law review on the rights of dogs and cats, or the like. And one of the great difficulties with that is that it is usually comes from a temporary burst of enthusiasm from a few students, and it almost never works out to be the long term, committed, sustained effort that you need to do a first-rate law school publication.

Jason came to talk to me about this two years ago, and that was exactly the sinking feeling I had, that not much would come of this. But he and his colleagues were persistent, enthusiastic, committed to this set of ideas, committed to a subject-specific law review, which he thought could make a great contribution to the American scholarship. And I think that’s the way, in fact, it is working out and will continue to work out. So Jason and your colleagues, my hat is off to you. Congratulations.

I, too, want to thank Angela Xenakis and Susan Brown, who have done so much on this particular symposium, and I know that it wouldn’t have occurred without the work of Bill Marshall and Arnold Loewy. This will be a good day, and I hope you enjoy it.

I am delighted that you’ve chosen to explore these topics of separation of church and state. They are with us; they will always be with us. Having worked a little in this vineyard for many years, I now rest satisfied that we will never solve the tensions of the problems of separation of church and state in the United States, so this journal will always have issues to work on.

This country seems to me one which, on the one hand, is not apt to move towards a dramatic regime of strict separation, not when we see so many contrary examples in our public lives. As long as we still have courthouses that begin their sessions with, “God save this honorable court,” a regime of dramatic separation is probably not in the offing. On the other hand, I think we can hope that a regime of dramatic accommodation, with some of the threats to equality that that poses, will never be radically embraced here.

So if we move back and forth between these two poles, having a battleground which looks like one where ignorant armies have clashed by night and nothing much more, or a wall of separation which is certainly a vacillating and confusing structure, I think that we will have a lot of work to do, and today’s effort will be a strong example of that.

I want to begin by introducing to you Melissa Rogers from the Pew Forum on Religion and Public Life. Melissa and Pew have had a great deal to do with this meeting today, both in Pew’s financial support of it and Melissa’s intellectual contribution to it. Melissa, as you know, plays a powerful role with Pew in putting forward these issues. She is a graduate of Baylor University, close to where I grew up, and the University of Pennsylvania Law School. She brings her work here both as activist and litigator and scholar and organizer in this vineyard. She does a great deal of work, as you know, with one of my favorite authors, E.J. Dionne, and that must be a delight. So let me introduce to you Melissa Rogers to get us going. Melissa.

MELISSA ROGERS: Thank you very much. It’s great to be here this morning with you at UNC. I was especially encouraged this morning when I picked up the newspaper. I saw that we indeed had an auspicious day for this conference at UNC, because Duke narrowly lost to Kansas in the NCAA basketball tournament yesterday. So I thought that could only bode well for the conference today. I see some faces of Dukies here who are holding back their hisses and boos, and for that I’m grateful. But you’ll get your time at the mike a little later. I hope most of you are in a good mood this morning, and I appreciate you being here.

I, too, want to offer my profound thanks to the journal, especially to Angie Xenakis, to Jason Kay and to Susan Brown, and to Mary Elizabeth Hanchey for all of their very hard work. They have really dedicated themselves to this over the past few months. I have not had to worry about so many things because of their very good work, and I want to thank them for that. I also want to thank Professor Lowey, the journal’s sponsor, and Bill Marshall, a good friend, who have also worked very hard on this. And to the dean for hosting the conference, for making the space and all these resources available to us, thank you.

As you know, in one of the most anticipated church-state decisions in decades, the United States Supreme Court last year made clear that the First Amendment doesn’t prohibit the inclusion of religious schools in certain state-financed school voucher programs. Now, the casual observer who saw this in a newspaper might have assumed at that point that such voucher programs could be implemented nationwide immediately without a problem. But those who follow the issue, and I know that that’s most of you in this room, knew that that decision, while it closed one battleground – and that was a battleground over the federal Establishment Clause in the United States Constitution – it also threw the spotlight on a remaining battleground, and that is the battleground over state constitutional restrictions on government aid for religious institutions.

Now we are in that second phase of the battle. School voucher opponents are using state constitutional restrictions to attack voucher plans that include religious schools, because a number of these state restrictions provide more stringent restrictions than does the prevailing interpretation of the federal Constitution. And these restrictions can be interpreted to exclude religious schools from voucher programs in some instances. Meanwhile, school voucher proponents are waging a determined and coordinated attack on the state constitutional provisions themselves, saying that these state restrictions are unconstitutional under various provisions of the federal Constitution.

One of the most prominent lines of attack against these state constitutional restrictions has focused on a large number of amendments known as Blaine amendments. These amendments are so named because they were adopted around the time of a failed attempt by former speaker of the House, James G. Blaine, to amend the federal Constitution. You have in your packets a very brief biography of James G. Blaine, and that may help as we go along today.

Blaine offered his amendment to the federal Constitution in 1875, and in a minute we’ll have a bunch of scholars with us to talk about this particular period of our history, which is a very interesting period. It included some strong political movements against government funding for Catholic schools and, indeed, animus toward Catholics. The federal Blaine amendment ultimately failed, but many states passed their own versions of the Blaine amendment, placing restrictions on government aid to religious institutions. Depending on how you count these Blaine amendments (they can be defined in somewhat different ways), there are around 30 such state constitutional provisions.

As mentioned earlier, these Blaine amendments are at the crux of a very important battle over school vouchers. It’s also important to note that the battle over the Blaines won’t be limited to school vouchers. Some of these amendments, state constitutional restrictions, can be read to apply also to the government’s relationship to other religious institutions. So they could be applied, for example, in the context of what is now called faith-based initiatives. As you know, this is particularly important because we have a very strong push, led by President Bush principally, to implement faith-based initiatives, including charitable choice. I’m sure we’ll talk about that more as the day goes on. But you can see that in many cases outside the school voucher context, these state constitutional restrictions may become pivotal as the federal Establishment Clause is interpreted in a more relaxed fashion.

The battle over the Blaine amendments not only raises a lot of these very specific questions, but it also raises broader issues about the relationship of religion and government in America. Indeed, the phrase that inspired the title for this conference, “the separation of church and state,” is bound up in this debate currently. Recent scholarship suggests that the phrase, “separation of church and state,” is largely an anti-Catholic, anti-religious slogan. On the other side, many would argue that this scholarship ignores non-bigoted reasons for supporting what is often called the separation of church and state and tight restrictions on government funding for religion.

This debate also touches on some important issues related to federalism. It actually makes for some strange dynamics in the debate, because some of those who have normally been proponents of states’ rights end up attacking these state constitutional provisions, and some of those who have been more leery or reluctant to support states’ rights end up being very strong proponents of these particular state constitutional restrictions. As the Supreme Court relaxes its understanding of certain Establishment Clause limits on government funding for religious institutions, then the question becomes: What role can or should state constitutions that address this matter play in this debate? And, how will this affect our general understanding of our order of religious liberty in the United States?

Another important, broader issue is related to this relaxation of the rules regarding government funding for religious institutions. It has to do with the kinds of conditions that will follow the government funding to religious institutions. In other words, as increasing amounts of aid flow to a wider array of religious institutions, how will this change the relationship between church and state? What conditions will accompany the funding to these religious institutions, some of which have not been the recipients of any, or at least not any substantial, government funding in the past. And what, if any, exemptions from these conditions will be given to religions institutions precisely because they are religious institutions?

So these are some of the issues that we look forward to exploring today. We have a great list of scholars, activists and litigators to discuss these issues with us. You have in your packet a blue sheet that gives you the order of the day, so I won’t belabor that too much, but I will just remind you that we’re going to start out with a session on history this morning; then go to a lunchtime segment that will focus on some of the relevant federal constitutional issues, including evaluations of the federal attacks on and defenses of the Blaine amendments; then we will finish off the day with a session that will focus on litigation strategy related to these amendments and some of the arguments being made for and against them in that litigation, as well as a focus on how debates over faith-based initiatives and school vouchers are affected by these particular state constitutional restrictions.

So I’m really looking forward to each of these sessions. I should say that we’re not only fortunate to have great panelists, but we’re also really fortunate to have great moderators this morning. We have people moderating who are themselves nationally known experts on these issues. One of them, of course, is Bill Marshall, who needs no introduction here, but you know his work and his outstanding leadership in the area of First Amendment law. He will moderate our lunchtime session. In the last session, Marty Lederman will lead. He came down from Washington to join us. That was very kind of him. Marty formerly worked at the Office of Legal Counsel in the Justice Department and is a great expert on church-state issues. He is currently working with Professor Tribe on a range of constitutional matters, so you know he’ll be a sharp and good moderator for our last session.

I should also say another thing about the panelists: They are very broad in their knowledge. Many of them could have ably served on different panels in this conference. I want to leave each of them room not only to talk about what came before and after them in the program and respond to that, but also to be very involved in the questions and answers with regard to each panel. I hope you will join us in that question and answer period as well.

Let me just briefly call attention to one thing in your packet: a very informative report by Chip Lupu and Bob Tuttle of George Washington University Law School, that contains an appendix listing the text of all state constitutional provisions relating to the establishment of religion and the funding of religious organizations. You may find that a useful reference during the day. This appendix is drawn from a larger report by Chip and Bob on the state of the law regarding government partnerships with faith-based social service providers. Those of you who are interested in that topic may want to consult the very fine work that they do with the Roundtable on Religion and Social Welfare Policy.

I wanted to say a word about the Pew Forum quickly before I call on Professor Loewy to join us. The Pew Forum on Religion and Public Life is a grant project of The Pew Charitable Trusts. We seek to help people have a better understanding of the ways in which religion shapes American ideas and institutions. We serve as a town hall and clearinghouse of information on issues at the intersection of religion and public affairs. The Pew Forum itself takes no position on these issues. We try to serve as an honest broker on them. I’m sure it will be evident from the first panel onward that we’ve invited people with very different perspectives on these issues to try and bring them into common conversation. We welcome the opportunity to clarify areas of disagreement, as well as areas of agreement, in this area.

Let me call on Professor Loewy at this time to say a few words about the journal and a few more words about Supreme Court case law as it relates to this issue. As you know, Professor Loewy teaches here at the law school and is a sponsor of the journal, and we’re very grateful for his work in that regard. And after he speaks, we’ll launch into our first session. Professor Loewy.

ARNOLD LOEWY: Melissa, thank you and Pew very much. Quite simply, without you, we wouldn’t be here, and we are grateful. Now for the First Amendment Law Review. It was almost exactly a year ago at this time that Jason and Angela came to my office talking about wanting to start a First Amendment law review. Some of you may know this was not one of the most fiscally sound times in state or university history, and the ability to obtain funding for anything, especially a new law review, looked rather bleak. But it was pretty clear to me from their attitude that they were going to take the position that the difficult, they’d do immediately, and the impossible, frankly, wouldn’t take all that much longer. In fact, it’s taken less than a year, because here they are.

We were talking about maybe having a conference with some local talent. Possibly if we brought somebody in maybe they could sleep in my house, maybe we could have a little party. But we sure have exceeded our wildest expectations, and for that, the First Amendment Law Review, and particularly Jason and Angela and many others, I thank you. And as your advisor, I am really proud of you.

What I’d like to do is spend a few moments elaborating on some of what Melissa said about how we got to the position of where the question of state constitutional law has become so paramount. Initially, the question of government funding of parochial education arose in the case in 1947 called Everson v. The Board of Education. This was a case in which the state or municipality offered to pay for bus transportation for all students, including, but not limited to, students going to parochial schools. The challenge was made and the Court essentially had two fairly easy ways, two rule-oriented ways it could have resolved the question. One would be to say separation means separation; any government aid which significantly aids religious schools is constitutionally impermissible. Therefore, you can’t do it. An alternative methodology that it had, also rule-oriented, would be to say that so long as the government is getting its secular money’s worth – that is, so long as what the government is paying accomplishes a secular purpose, i.e. getting students to school where they learn secular subjects – it’s constitutionally okay. We might call those two positions the separationist position and the neutrality position.

The Court, in its language, seemed to come pretty close to the separationist position. It said, we must build a wall, high and impregnable. That sounds pretty separationist. But a few bucks to send the kids to school, keep them safe and all of that, that’s okay. Consequently, what we wound up with was neither the rule of separation nor the rule of neutrality, but kind of a muddled middle, if you will, where a whole bunch of factors were relevant.

For example, if the support went to a university, that was possibly okay, whereas if it went to an elementary school, probably not okay. If it was indirect aid, maybe okay. If it was direct aid, maybe not okay. If it aided the parent or the student, maybe okay. If it aided the school, probably not okay. If the lessons that were paid for took place off campus, maybe okay. If it took place on campus, probably not okay. If the bus was to take the child to school, okay. If the bus was to take the child on a field trip, not okay. If the state was lending students textbooks, okay. If it was lending them maps, not okay.

On that last point, I happened to be in the court the day that case, Wolman v. Walter, was argued back in the 1970s. I remember watching Justice Marshall. Justice Marshall asked counsel a question, “How big are the maps?” That took me aback. It took counsel aback too because he didn’t understand the question, and Justice Marshall explained, “Well, if they’re little maps, maybe the children will be taking them home and maybe they’re like books. But if they’re big maps, the chances are they’re going to stay in the school and it’s really a loan to the school.”

I remember what I thought about that. I said, I don’t know how this question should be answered. I’m really not sure whether we should take the neutrality position, I’m not sure whether we should take the separationist position, but I know that whatever the answer is, it can’t or shouldn’t depend on how big the maps are.

Eventually, it didn’t depend on how big the maps were, although it took a while. Finally, for good or ill – and that’s what we’ll talk about in this conference – as we entered a new millennium, the Court came very close to, if it didn’t embrace, the position of neutrality, the position Justice White had been arguing for years. That is, so long as the state got its secular money’s worth, it’s okay to give, say, computers to the school, undoubtedly to give maps to the school. So long as it was for secular purposes and not for religious purposes, it was okay. On the more significant question, it was okay to give vouchers for students to attend parochial schools or whatever. It was the students’ choice, and that was thought to be permissible.

Well, once you have that, Melissa rightly tells us, the federal remedy for those who support separation really is gone, and, consequently, what they’re left with is a state remedy, and it’s state remedies in the order that Melissa talks about that we will be discussing. Melissa, would you please come up and take over.

MS. ROGERS: If I could ask for the first panel to start moving up here, that would be great. Since you talked about the maps, I just can’t resist …. I’m sure you all remember Daniel Patrick Moynihan’s famous rejoinder. He said, “Well, books are okay; maps aren’t. What about an atlas, a book of maps?” Of course, he passed away just in recent days. I know we all miss Senator Moynihan’s incisive comments on so many issues. Thank you, Professor Loewy, so much.

Yes, let’s go ahead and turn to the first panel. I am not a historian, but I have read little bit about this, so I’ll just try to get us situated and then let the experts do their work up here. It may help to recall that the Blaine amendment, had it been adopted as a federal constitutional amendment, would have been the 16th amendment to our constitution. So it came in that period after the Reconstruction amendments, the 13th, 14th, and 15th amendments. This was a time of, as far as I can tell, very strong promotion of national culture. And the development and flourishing of common schools were to be one of the prime ways in which that national culture was achieved.

It was a time at which many believed that various Protestant faiths could be reduced to some kind of lowest common denominator and taught in the schools. And many believed that not only could we do that, but that we should do that to help morally form children who would lead in this more homogeneous nation. And this was a time when, for example, readings of the King James Version Bible were assumed to be part of that non-sectarianism and apparently did not trouble most people.

This was also a time of rapid growth in the number of Catholics in America, both in terms of sheer numbers and as a percentage of the population. I saw some figures that noted that in 1789, less than 1% of the population was made up of Catholics. In 1840, it was 3.3%. And in 1891-1921, 16.5% of the population were American Catholics. In light of some of the Protestant teachings in public schools, Catholics moved to form their own schools and sought government money to sustain them. This was met by very strong opposition by many Protestants, and thus explains part of the reason why the school question was a very explosive one at this time.

It’s also very important to recall that, after the Blaine amendment failed at the federal level, there were different prototypes for the amendments that were adopted by the various states thereafter. (I think Seamus Hasson will talk about some of the amendments that actually predate the introduction of the federal Blaine amendment and represent one wave of amendments.)

A wave of state amendments followed the failed federal Blaine amendment. And then there’s at least one other category, it seems to me, of situations in which territories were required to adopt Blaines as a condition of statehood within the Union. The stories from those states are very interesting. To make them more interesting still, some of the constitutional restrictions that were adopted during the 19th century have fairly recently been either re-adopted or been retained despite attacks against them. So that puts another layer of history on certain amendments from this time.

Let me go ahead and introduce the first speaker to you, who will give you much more detail about these matters. Our first speaker this morning is Dr. Ward McAfee. He’s a professor at California State University where he teaches history. He wrote Religion, Race and Reconstruction: The Public School and the Politics of the 1870’s. A very interesting read.He also has completed and edited a book called The Slave-holding Republic: An Account of the United States Government’s Relations to Slavery, and he’s currently working on a biography of Abraham Lincoln. He obviously has very deep knowledge in this area. For all of us who lament the wedge politics of the current age, we only have to read books like this to remember that wedge politics weren’t invented yesterday. So with that, I welcome Professor McAfee to open up this session.

WARD McAFEE: Thank you, Melissa.

We’re here because three-fourths of the states have so-called Blaine amendments in their state constitutions. These provisions pose a significant constitutional obstacle to voucher plans and other faith-based initiatives. A past major constitutional obstacle has apparently been overcome. That past obstacle to vouchers involved the establishment of religion clause in the First Amendment. In the past, it was the opponents of voucher plans who looked to the First Amendment as their ultimate protection. Now, voucher advocates look to the First Amendment in hopes of striking down the state-based Blaine amendments.

Voucher advocates claim that the anti-Catholicism underlying the original federal Blaine amendment, as well at the state-based versions, are sufficient reason that these state provisions should be judicially voided. As I understand their argument, it is this: The Blaine amendments have the effect of restricting the constitutionally protected rights of freedom of speech and the free exercise of religion protected in the 1st and 14th Amendments. As a historian of the federal Blaine amendment proposal of 1875-1876, I will tell you that anti-Catholicism was intimately connected to this proposal, which served as the model for many state-based Blaine amendments. But I question whether this history is telling for the modern voucher issue.

For example, historians have shown that anti-Catholicism was one of the forces in the American Revolution. Now, Melissa, just a few minutes ago, told you that in 1789 only 1% of the population in the United States was Roman Catholic. And the American Revolution was before 1789, so it might have been even less than that. But anti-Catholicism was very prevalent in the United States, even with a very small Catholic population. Massachusetts, which in the 1770’s was a hotbed of revolutionary activity, felt directly threatened by the British Quebec Act, which expanded Catholic Quebec, gave special privileges to the Roman Catholic Church and threatened Protestant hotheads in Massachusetts. Does this fact of past anti-Catholic bigotry negate the revolutionary legacies of freedom and equality? Of course not.

Allow me first to prove the anti-Catholic background of the Blaine amendment of 1875-1876, and then I’ll close with some additional thoughts on the modern vouchers.

The Blaine amendment came out of an era when anti-Catholicism was common and loud. Blaine wanted the Republican presidential nomination in 1876, and he wanted to cash in on widespread anti-Catholic and anti-Irish feeling that the Republican Party was then doing its best to generate. Some histories talk of this original Blaine amendment as if it were only one proposal. In reality, there were three different proposals called Blaine amendments in 1875-1876, and these different proposals had little in common with each other.

The original one was proposed by the former speaker of the House, Republican James G. Blaine himself, in December 1875. A Democratic Party-modified version was passed overwhelmingly by the House of Representatives in 1876. A Republican Party modified version was passed subsequently by a strict party vote in the Senate in 1876. In the Senate, every Republican voted for that version, and every Democrat in the Senate voted against it.

The major problem with Blaine’s original proposal was that it was written like a typical constitutional amendment and was too open to interpretation. Both Republicans and Democrats wanted it to be more specific, but in radically different ways. 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 schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or land so devoted be divided between religious sects or denominations.”

The Republicans wanted an amendment with many beefed up specific elements. They wanted not only to outlaw state aid to sectarian schools but federal aid as well. And they wanted to ensure that Bible reading in the public schools would not be threatened by the amendment. Republicans were motivated to inflame anti-Catholic feeling with their modified amendment that was voted on in the Senate. The Democrats wanted an amendment specifically designed to be as ineffective as possible. Democrats were motivated to neutralize a politically dangerous bigoted attack against them while appearing genuinely concerned about the issue of government funds going to religious schools.

Republican critics of Blaine’s original proposal had several problems with it. While Blaine’s original proposal would prevent state aid to sectarian schools, it was feared that it could also be used to drive Protestant practices out of public schools. Blaine’s proposal included a vague prohibition against an establishment of religion, and might not Protestant practices such as hymn singing and Bible reading in the public schools be interpreted as some to constitute an establishment of religion? Most Republicans wanted his proposal to be modified to ensure that Bible reading in the public schools would be specifically protected.

Another problem that Republicans had with Blaine’s amendment was that he had proposed it. Each one of his rivals for the nomination was motivated to embarrass him, and attacking his proposed constitutional amendment for not being specific enough was one way of doing this. Other Republicans were suspicious of his proposal because his mother was a Roman Catholic. Even though Blaine himself was a Presbyterian, there were concerns about his religious origins.

Ironically, James G. Blaine, the very person who intended to cash in politically on widespread anti-Catholic bigotry in 1876, was among the first to suffer politically from it. In 1876, Blaine did not get his party’s nomination.

He was then embroiled in a nasty scandal suggesting that he was on the take from railroad corporations. But the major reason Blaine was not nominated was that he had acquired too many enemies during his long tenure as speaker of the House. Ohio’s governor, Rutherford B. Hayes, who was then associated with the anti-Catholic crusade animating the Republican Party, became the Republican presidential nominee.

Now let’s get to the Democrats’ complaint with the original Blaine proposal.

Democrats knew that Blaine proposed the amendment to try to inflame anti-Catholic feeling for use in the presidential campaign of 1876. By that time, Reconstruction was dying. Northern voters had demonstrated their opposition to continuing civil rights in the mid-term elections two years before when the Democrats won back the House in a landslide. Ulysses S. Grant’s corruption-filled presidential administration was giving the Republican Party a bad name. Republicans desperately needed a hot-button issue having nothing to do with either civil rights or political corruption, so anti-Catholic nativism was turned to. It had been around for quite a while, but was especially electric after the Vatican’s first official proclamation of papal infallibility in 1870. Simultaneously, Otto von Bismarck was unifying a new German nation by attacking the Roman Catholic Church as an anti-national force. Republicans resonated to Bismarck’s “kulturkampf,” or culture struggle, against Roman Catholicism, and they wanted something similar here. They thought it might keep them in power.

The Democrats had reaped political benefits in branding Republicans the “Black Republicans.” Racial bigotry had helped them recapture the House in 1874. In 1875-1876, Republicans were intent on a bigoted appeal of their own, directed against Irish Catholics. Irish Catholics were then filling northern cities. They were prominent in every major bloody northern urban riot. They were over-represented in America’s prisons and, worst of all, they all voted for the Democratic Party. Republicans found it easy to be anti-Irish Catholic in the 1870s.

Democrats knew that the Blaine amendment was set as a trap for them. Republicans expected Democrats to oppose the Blaine amendment, thereby demonstrating that they were under the sway of the Roman Catholic Church’s desire to tap into state school funds. So Democrats decided to outflank the Republicans by supporting a watered down version of the Blaine amendment.

The Democratic House passed a revision of Blaine’s amendment that specially stated that Congress could never elaborate on it by enacting public policy, leaving the amendment to be used only in the courts on a case-by-case basis. The three preceding Reconstruction constitutional amendments, the 13th, the 14th, and the 15th Amendments, each had included specific provisions giving Congress power to elaborate upon each of these amendments. The House version of the Blaine amendment had an exact opposite provision, explicitly denying Congress any powers relating to the proposed amendment. In passing an emasculated version of the Blaine amendment in the branch of Congress under their own control, Democrats effectively destroyed it as a campaign issue in 1876.

Republicans then regrouped and voted on a Senate Blaine amendment that specifically guaranteed Bible reading in the public schools and expanded its prohibitions to ban federal aid to sectarian education as well as state aid. They also added a section empowering Congress to expand upon and enforce the amendment. The Democrat House had passed its version of the Blaine amendment by over the required two-thirds majority. The Republican Senate passed its version by a simple majority but lacked – (audio break)


– state constitution. Colorado entered the Union that year and so both houses of Congress had to approve or disapprove its new constitution. While the two parties had not been able to agree on the federal Blaine amendment, they did coalesce on Colorado’s constitution.

Colorado’s Blaine amendment reads as if it were written by a Republican. It in no way threatened Protestant practices in the public schools, but only specifically prohibited state aid to sectarian schools, which in those days was code for Roman Catholic schools. Democrats could go along with this because they didn’t care much what individual states did with this issue. What frightened Democrats, especially southern Protestant Democrats, was any entering wedge that Republicans might use to have the federal government take over American public education using supposed Roman Catholic aggressions in northern school districts as an excuse. Southern Democrats were just then getting rid of Reconstruction along with Yankee control of their public schools and they didn’t want education federalized over some presumed Catholic threat to take over public schools in northern big cities.

Colorado became, I think, the 21st state, as far as I can tell, to enact a so-called Blaine amendment. To my knowledge, the first state to do this was New Jersey, which in 1844 passed its Blaine amendment a generation before Blaine. Before the modern era, the last states to do this, so far as I can tell, were Arizona and New Mexico, both in 1912.

From 1844 to 1912, Catholic immigration rose steadily, as did extreme anti-Catholic prejudice. During this period, anti-Catholicism most probably played a prominent role in the enacting of each state’s Blaine amendment. But also involved in each instance was a legitimate, state police power’s concern that American culture not become Balkanized. Isn’t it ironic that today we see anti-voucher liberals touting the virtues of state police powers guaranteed by the 10th Amendment, while pro-voucher conservatives argue that rights protected by the First Amendment be incorporated into the vaguer language of the 14th Amendment? It’s fascinating to watch old adversaries switch constitutional positions.

So this is the historical background of the so-called Blaine amendments. How does it inform the current voucher controversy? It doesn’t tell us whether vouchers will produce better results in the public schools. In the 19th century, most Americans had a strong faith in what public education could accomplish. That older faith is now weakened, and this generation is wrestling with how best to meet this challenge. Part of the weakened faith in public schools concerns poor academic performance; part concerns the modern public school’s tendency to promote amoral education. In my own opinion, this latter tendency is the Achilles heel of public education, and it explains why I’m open, personally, to voucher plan experiments.

The Progressive reformer “Fighting Bob” LaFollette once described how public policy experiments may be tried out in various states to see if they work. LaFollette termed states, “greenhouses of reform.” The public school movement itself started in one state, Massachusetts, and it spread from there.

Today, nothing in either the U.S. Constitution or state constitutions is keeping the voucher movement from proving its worth in one or four or eight or 12 states. It will take years before the legal issues discussed in this forum will be finally settled. In the interim, will the American public be provided the necessary information based on many case studies to see if vouchers work? If no such evidence if forthcoming, then future court victories for the voucher cause will go down as a somewhat inconsequential episode in American constitutional history.

Thank you.

MS. ROGERS: Thank you so much, Professor McAfee. While we’re touching on the policy arguments about vouchers, it just reminded me that there’s also something in your packets that we worked on right after the Zelman decision. It includes not only a statement that Tom Berg and Bill Marshall and some others worked on about what Zelman means, but also some contrasting essays about whether vouchers are good policy. So you might find that interesting to consult as we launch into this more modern discussion as the day goes on. Thank you so much.

I want to call next on Seamus Hasson, Kevin Hasson, as the next panelist. Seamus did a very interesting thing, and a thing that I respect more now, having had to start our own organization. He launched his own organization, the Becket Fund for Religious Liberty. When was it founded? Nine years ago. The Becket Fund is a public interest, legal and educational institute dealing with church-state issues and religious liberty. And so he’s done really interesting and innovative work by founding the Becket Fund that does a lot of litigation, and also by founding recently the Becket Institute that is located at St. Hughes College at Oxford University, which hosts visiting scholars who can present lectures throughout the academic year. So those of you who want to spend a year at Oxford can consult with Seamus later. Not everyone at one time.

Anyway, before he established the Becket Fund, he worked at Williams and Connolly in Washington D.C., a very well respected law firm. He also worked with the Office of Legal Counsel at the Justice Department, where he advised Cabinet departments on church-state relations. He has a great mix of academic-activist-litigator credentials, and a great knowledge of the history of this particular era.

I’ll give his Web site a plug here: Blaineamendments.org. The Becket Fund runs its own Web site on the Blaine amendments and includes in that website some scholarly articles, links to the various state provisions, and decisions that have interpreted those amendments. For those of you interested in following up on this issue, that would be a great place for you to visit. So without further ado, I will welcome Seamus to make comments at this time.

MR. HASSON: Somewhere the Know-Nothings must be smiling. Wherever it is that Know-Nothings go when they die, and I venture no opinion on the subject, they must be happy at least about this, that after a generation or two or three have passed, their secret is still largely safe; people still know nothing about their agenda.

The Know-Nothings were a secret society in the 19th century, and they weren’t called Know-Nothings because they didn’t know anything. Well, in retrospect, they certainly knew a lot less than they thought they did, but they were called Know-Nothings because everyone was supposed to know nothing of their anti-Catholic, anti-immigrant activities. In 1855, Abraham Lincoln wrote of the Know-Nothings, “As a nation, we began by declaring that all men are created equal. We now practically read it, all men are created equal except Negroes. When the Know-Nothings get control, it will read, all men are created equal except Negroes and foreigners and Catholics. When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty.” He said that a year after the Know-Nothings had in fact gotten control of Massachusetts.

In the 1854 election, the Know-Nothings took the entire federal congressional delegation of Massachusetts, all 40 seats in the state Senate, all but three of the members of the House of Representatives, and the governor’s mansion. Now armed with this overwhelming mandate, they decided to do what the Know-Nothing governor, Henry Gardner, said was the mission, to “Americanize America.”

What did he mean by Americanizing America? The Catholic population of Massachusetts had tripled since the beginning of the preceding decade, at which time it had been only 10 years since the Congregational Church had been officially disestablished in Massachusetts. In the 1830s, Massachusetts still had an official church, the Congregational Church. It was still virgin territory not to have an official church by the time this wave of Catholic immigrants kept coming in.

So to Americanize America, the Know-Nothings decided they were going to do several things, some of them slapstick, some of them very serious. The first thing they did was to require the reading of the King James Bible in all the common schools. Why were the common schools called the common schools? Because they taught the common religion, which was the lowest common denominator version of Congregationalism. At that time, the Congregational Church was split between the Unitarian faction and the orthodox faction. The common schools would teach something that wouldn’t be offensive to either one of them, whatever that might be. What it certainly required was reading the King James Bible.

Why require reading the King James Bible? Because, for Catholics, reading the King James Bible was like eating meat on Friday in those days, or like eating pork today would be for an observant Jew or Muslim. It was something you couldn’t do, something you were going to force kids to do to violate their consciences.

They proposed constitutional amendments which passed both houses of the legislature – not surprisingly, since they were in control. They deprived Catholics of the right to hold public office and restricted office and the vote to male citizens who had resided in the country for no less than 21 years. Immigrants couldn’t vote if the amendments had passed.

Now to the slapstick. They removed the Latin inscription above the House speaker’s desk – who knows whether they could read it or not – and they established the Joint Special Committee on the Inspection of Nunneries and Convents. They were going to prove there really were dungeons underneath those things. They were set to stamp out “acts of villainy, injustice and wrong perpetrated with impunity within the walls of said institutions.”

Of particular interest here, they passed an amendment to the Massachusetts constitution that said, “Monies raised by taxation in the towns and cities for the support of public schools” – skipping ahead – “shall never be appropriated to any religious sect for the maintenance exclusively of its own schools.”

Why sect? Why not just religious schools? Because the common schools were religious schools, and they didn’t want to de-fund their own schools. The common schools taught the common religion. They were after those nasty sectarian schools. And by the way, there may have been a smarter motive behind their nunnery investigative committee than we give them credit for. It may well be that they were out to discredit the source of cheap labor for Catholic schools. It may have been another economic attack along with the anti-aid amendment. We can’t call it the Blaine amendment yet because Blaine hadn’t dreamed of this. In fact, he probably got the idea from New Jersey and Massachusetts in the first place. It’s important to recognize that not only is this not a Blaine amendment because it creates blame, but it creates a civil war. It creates all the politics that Professor McAfee so ably demonstrated had to do with the federal amendment. This was vintage, pure bigotry.

Fast forward to 1917-1918. You have another constitutional convention, and they want to strengthen the Blaine amendment. Someone has decided there’s a loophole in it that applies only to grammar schools, so they strengthen the Blaine amendment to say hospitals and colleges, and so forth. Why did they do that? Because in the intervening 60 years, the Catholic population has exploded in Massachusetts, and despite their best efforts, some of them are now reaching levels of society where they might actually have a little bit of influence.

They added another amendment to the constituent that was a citizen ballot initiative amendment, and it’s got an interesting clause to it, legalese. It says, “Neither the 18th Amendment of the Constitution as approved and ratified … nor this provision for its protection shall be the subject of an initiative amendment.” What it means is you can’t touch the anti-aid amendment, the pre-Blaine amendment, with a citizen ballot initiative, and you can’t use a citizen ballot initiative to attack this amendment, because, once again, these guys, the great unwashed from Rome, are achieving such numbers that, good heavens, they might actually get somewhere.

By the way, my organization is challenging both amendments in federal court and have been for several years.

Now the Know-Nothing power in Massachusetts was not unique to Massachusetts. It was a national movement, a national movement that Blaine, for a lot of political reasons and some other religious reasons, sought to ride. After the federal amendment failed, a state movement that had state versions of the Blaine Amendment, something called “baby Blaine amendments,” took hold, built up by exactly the same animus as was back there in 1854. So where the Know-Nothings left off, the American Protective Association took over.

Let me read you oath number four of the APA: “I do most solemnly promise and swear that I will always, to the utmost of my ability, labor, plead and wage a continuous warfare against ignorance and fanaticism. I will use my utmost power to strike the shackles and chains of blind obedience to the Roman Catholic Church and the hampered and bound conscience of a priest-ridden and Church-oppressed people, and I will never allow anyone, a member of the Roman Catholic Church, to become a member of this order, knowing him to be such, and that I will use my influence to promote the interests of all Protestants everywhere in the world that I may be, that I will not employ a Roman Catholic in any capacity that I can procure the services of a Protestant.”

These aren’t fringe groups, but there’s an enormous fringe. This was part and parcel of late 19th century America. Even the Harpers Weekly got into the act. A cartoonist – in fact, Nast himself – drew cover cartoons week after week after week on this issue. By our 21st century sensibilities, they’re shocking. They have a public school classroom and there’s a wolf at the door and the kids are valiantly holding the door against the wolf. The wolf has a collar on him – I don’t know why a wolf would have a collar – with the papal insignia on it, while Uncle Sam gets the gun down from over the fireplace to go fend off this papal wolf. We have a collection of these cartoons.

This was warp and woof of the American scene, and why the Know-Nothings should be so happy about it is so few people know anything about it. To the common understanding, it can’t happen here. Well, it did happen here, and happened not only in Massachusetts, it happened in New York. In 1842, again predating the Civil War and predating the political machinations, the Public School Society of New York, a harmless sounding thing, undertook to revise its textbooks and was shocked that Catholics objected. The textbooks described Martin Luther as “the great reformer. The cause of learning and religion and civil liberties is indebted to him more than any man since the apostles,” and they openly discourage popery.

Now, the elected board of education took over and hired a prominent nativist as superintendent of education and went back to the King James Bible readings. When the Catholics objected, the board ruled solemnly that reading the Bible did not constitute sectarianism. Of course it didn’t. It was the common religion. The sectarians were those crazy minority religions.

Let me now ad lib a response to Professor McAfee on why it makes a difference today that things were bad back then. The Supreme Court said in Hunter v. Underwood – that was in roughly 1985 – that the state constitutional provision of Alabama was unconstitutional under the federal Constitution, the Equal Protection Clause in particular. Hunter v. Underwood concerned an amendment to disenfranchise people convicted of crimes of moral turpitude. Now, Mr. Hunter, or Mr. Underwood – I forget which petitioner it was – was undoubtedly convicted of a crime, and it was undoubtedly one of moral turpitude. There was really no doubt about it. He was disenfranchised under the provision. He challenged this disenfranchisement by saying this provision was aimed at African-Americans; it was designed to take advantage of the breakdown of African-American families that had occurred in the wake of slavery, so that basically everybody, every adult, could be charged with some kind of crime of moral turpitude and would lose the franchise. I am an African-American. This thing was targeted at my ancestors and it’s still working to my disadvantage. It’s unconstitutional.

Alabama defended by saying, Well, wait a minute. That was then, this is now. We don’t enforce it just against African-Americans; we enforce it against everybody. The Supreme Court said that didn’t make a difference. Under the Equal Protection Clause, if it was improperly motivated to disenfranchise a certain group and still worked to the disadvantage of the target group, it’s still unconstitutional. If that means what it says, the Blaine amendments are unconstitutional too. Thank you.

MS. ROGERS: The final person on our panel is Steve Green. He now teaches at Willamette School of Law in Oregon, but for many years Steve served as counsel and director of policy for Americans United for Separation of Church and State, so you can understand that you will get a somewhat different picture as he speaks. He has extensive litigation and appellate experience in First Amendment law. He participated most recently in the Zelman case in a significant way, and he has written widely about this subject. He is author of the article “The Blaine Amendment Reconsidered,” and he holds a Ph.D. and M.A. in American constitutional and religious history from the University of North Carolina, so he’s back at home today in that respect. So we welcome Steve at this time.

STEVEN GREEN: Thank you. It’s very nice to be here. It’s actually a little ironic for me to be here in that I did my masters and Ph.D. work on this issue and then left there to teach law school for a while, and then to go litigate. I litigated all the various voucher cases. I thought that my career would be over when it came to vouchers, and little did I know that I could go back and rely on the academic work that I did when I was working on my Ph.D. and my masters. So my wife keeps saying this is going to be a lifelong career, and I’m afraid it’s going to be. But anyway, it’s very nice to be here.

I think we’re going to do a kind of reverse chronological order because I’m going to talk about the Blaine amendment some, but I want to go back even further than that. I want to talk about the no-funding principle, some of the origins of that and some of the bases of that, and then how that manifested itself in the Blaine amendment.

Without question, I will disagree with some of the things that Seamus has said, and I will try to stick to history, because there will be some other people who can ably talk about the application of this in more modern contexts. I’m more concerned about the attacks that we’re seeing upon the Blaine amendment and its constitutional manifestation, which would be the pervasively sectarian doctrine, or the no-funding principle, and the arguments that it’s based not on legitimate constitutional values but instead on a legacy of religious bigotry.

According to Justice Thomas, according to an article I’d rather not acknowledge, he said the pervasively sectarian doctrine was a shameful pedigree that is tied to 19th century nativism. He said that opposition to sectarian schools really came about in the 1870s with the near-passage of the Blaine amendment that would have amended the Constitution, as we’ve mentioned, to prohibit aid to sectarian institutions. And he said, “Consideration of the amendment rose at the time of adverse hostility to the Catholic Church and to Catholics in general, and it was an open secret that sectarian was a code for Catholic.” And he says, in short, “Nothing in the Establishment Clause requires the exclusion of pervasively religious schools from otherwise permissible aid programs, and this doctrine born of bigotry should be buried now.”

This is no mere exercise in historical revisionism. The reason why this critique is so important today is because it attacks these fundamental assumptions of Establishment Clause jurisprudence. For more than 50 years, as Professor Loewy mentioned, the cardinal rule in the Establishment Clause was the government could not fund religious institutions, in particular religious parochial schools. So the question, of course, becomes how legitimate is the principle that was presumed to ensure non-favoritism toward religion, non-coercion, but instead perpetuates religious bigotry and inequality? Certainly with the Court’s slow retreat from the no-funding principles represented in the voucher decision, the stricter Blaine amendments at the state level serve as a remaining bar to greater public funding of religious schools.

I take issue with the growing rise of criticism about the no-funding principle, and in particular in the Blaine amendments. In particular, I disagree that anti-Catholicism was the sole or primary impulse behind the development of the no-funding principle, or to a certain extent even the Blaine amendment itself.

I’d like to make two points. First, the no-funding principle and its corollary, the non-sectarian education principle, the principle of non-sectarian education through the common schools, predate the 19th century influx of Catholic immigration, the advent of the parochial school system as a threat to common schools, and even the rise of organized nativism – not that nativism did not predate, of course, the organized movements. Rather than simply being a reaction to Catholic challenges to Protestant-oriented schooling and Catholic demands for a share of the public school fund, the impulse toward non-sectarian public education was based on noble Republican principles. The fact that the nativist groups hijacked the no-funding principle for their bigoted aims – which, of course, I think we all must acknowledge were, in fact, bigoted – does not invalidate the concept or mean that all advocates of the no-funding principle of the 19th century were bigots or supported nativist goals.

Second, more particular to the Blaine amendment, even though anti-Catholicism motivated many of the supporters of the Blaine amendment without doubt and unquestioningly colored the debates, that was not the only impulse that fueled the concern of the amendment. Instead, the Blaine amendment was the fulcrum of a century-long struggle over the propriety, the role, the character of universal public education in America, while at the same time it served as a capstone of a more immediate tenure controversy over the legitimacy of Protestant exercises in public schools. This was a controversy that ranked alongside the parochial school funding question. So, therefore, those who characterize the Blaine amendment as a singular exercise in Catholic bigotry, I think, give short shrift to the historical record and the dynamics of those times.

I’ll try and make four very quick points. First, the philosophical impetus for the no-funding principle; the development of that principle in conjunction with non-sectarian common school movement; the rise of that principle in a couple of state constitutions as examples; and then, the dynamics surrounding the Blaine amendment, although I think that has been covered to a certain extent.

The American principles of religious liberty, liberty of conscience and separation of church and state arose independent of and prior to the common school movement or the influx of immigration, such as Catholic immigration or creation of the Catholic parochial school system. As early as the 1770’s, in fact, Thomas Jefferson and James Madison were equating government financial support for religion with infringements on religious liberty and rights of conscience.

“To compel a man to furnish contributions of money for the propagation of opinions with which he disbelieved or abhors,” Thomas Jefferson said, “is sinful and tyrannical. Even forcing him to support that teacher of his own persuasion is depriving him of that comfortable liberty of giving his contributions to the particular pastor of who he would prefer.”

Jefferson and Madison – Madison made similar comments – they did not make these arguments solely in the abstract, but raised them in opposition to an effort by the Virginia Assembly to impose an assessment for the support of houses of worship and teachers of religion, including teachers in private schools. In fact, the way the assessment worked is that if you objected to your religious assessment going to a church, it would be allocated toward education at the common school level, to the extent that that existed.

Madison also applied this principle later when he served as president when he vetoed a bill that would have authorized the Episcopal Church in the District of Columbia to receive poor funds for the education and care of destitute children. Although Jefferson’s and Madison’s spacious conception of separation of church and state was possibly ahead of the time and not shared by all of their contemporaries, there was a greater consensus at the time over the issue of public funding of religion. At the time of the framing of the First Amendment, the belief that government assistance of religion, especially in the form of taxes, violated religious liberty had a very long history. Therefore, at least you had this initial strain within the framers that describe funding of religious activities, which includes the teaching, inculcation of religion as violating these principles, as I said, of rights of conscience and religious liberty.

Second, the no-funding principle also developed in conjunction with the rise of the common school movement. The common school movement has a long history and we don’t have time to go over it all at this particular point in time. But some of the same framers – Thomas Jefferson, Benjamin Franklin, Benjamin Rush, Noah Webster – were, at the same time that they were advocating for some type of universal education, criticizing the education system that existed at that point and time in America, which was, of course, very much oriented toward the teaching of sectarian doctrine. Noah Webster said, “The reliance on religious texts and teaching of these doctrines inhibited the ability of children to think critically.” And even though he supported the reading of selected passages of the Bible in the school, he encouraged relying on secular subjects such as geography, economics, law and government for education at this particular point in time.

In 1805, the Free School Society was created; it later became the Public School Society of New York. They created what we would consider the truly non-sectarian public education system in the country. They argued that their curriculum was appropriate for children of all faiths, of all traditions. Of course, at that particular point in time there was a very small Catholic population in New York. All faiths and all traditions meant all Protestant faiths and all Protestant traditions. So, as a result, they described the curriculum as teaching only those fundamental principles of the Christian religion, which of course to their mind was Protestantism, free from sectarian biases and based upon moral codes.

The point is that at this particular time, although the schools promoted Protestantism through Bible reading and catechisms, the Protestantism was not this militant juxtaposition to Catholicism in 1810, 1820’s et cetera. The New York Catholic population was relatively small. As I said, you did not have the creation of the parochial school system in that sense. Instead, the Free School Society’s non-sectarian program was designed to attract children from the city’s Presbyterian, Episcopal, Methodist, Dutch Reform schools. So their nonsectarian system represented a belief that schools could reflect those commonly shared values and practices without reverting to sectarianism. This type of Protestantism was an attempt to be inclusive, not exclusive, except to the extent that it basically excluded those sectarian differences that separated various Protestant denominations.

This is very evident in a couple of the earlier conflicts that occurred in New York during this period of time. In 1822, a Baptist Church tried to gain some of the public school funds. The Free School Society saw this as a threat to their nonsectarian program. They objected to this in petitions to the New York legislature, and here there are articulated some of these first principles we would consider to be the basis of the no-funding principle.

They argued that funding religious schools would cause competition and rivalry among faiths, that it imposed a direct tax on citizens and, therefore, it was compulsive support for religion, violated rights of conscience, and the Free School Society said that churches and the state would therefore be united. The state legislature agreed, and basically discontinued funding of these religious charity schools, saying it was a violation of this fundamental principle that allowed funds of the state raised by taxation of citizens designed for civil purposes to be controlled by any religious corporation.

That is important because this issue of sectarianism came out within a controversy about the funding of a Baptist school. In fact, it’s very clear from the society’s early petitions and documents that they asserted that the funding would promote sectarian interests. Protestant denominational schools were considered to be sectarian.

A second round occurred prior to the 1840s, when there was an attempt by a Roman Catholic orphan society and a Methodist charity school to receive some type of public school funding. Again, the Free School Society objected to this. They opposed this distribution. Interestingly enough, though, the assembly splitting the difference. They said that because the Roman Catholic school was in essence more of an orphanage, they were actually entitled to the funding; but because the Methodist school was a religious school, a sectarian school, they were not entitled to the funding.

Some of these early examples indicate that there were some principles that underlie this concept of non-funding of religious schools that were generic to all sectarian schools. They were not unique to the issue of funding of Catholic schools. In fact, in that last example I gave, the Catholic orphan asylum actually got the money, whereas the Methodist school, which was considered to be sectarian, was denied that type of funding.

So as a result of some of these episodes, the principle about not funding religious schools actually was incorporated and had received some type of grounding prior to the major influx of Catholics in the 1830s and 1840s. As a result, these principles were already embedded, to a certain extent, in the law. Quite clearly, after that period of time, the no-funding principle was at times appropriated, expropriated – however you want to put it – by certain nativist groups, in particular the Know-Nothing movement of the 1850s. To be sure, in a handful of instances, the Know-Nothings supported concepts of no funding as a way of advancing their bigoted goals; and in a handful of states, the Know-Nothings actually were able to sweep the state elections and get some state constitutional provisions enacted.

However, nativism can’t be held responsible for all these enactments. As Professor Ray Billington, who probably wrote the seminal work about antebellum nativism back in the 1830s, indicates, Know-Nothings were actually relatively ineffective in enacting their anti-Catholic legislation, even in the states where they actually held majorities. And even outside those states, it doesn’t explain some of the no-funding principles that we see arising in the pre-Blaine amendments. Actually, there were some of these amendments as early as 1835. In Michigan, in the 1835 constitution, they enacted a no-funding provision, even though the state lacked a significant number of Catholics or Catholic schools at the time, before the wave of Catholic immigration.

The Michigan constitution served as a model for many of the Midwest, or what we should really call the Old Northwest, constitutions: Wisconsin, Indiana and Minnesota, and, actually, the state of Oregon. And all these states passed similar type of provisions without significant conflicts over parochial school funding at the time. In fact, the primary historian for the state of Wisconsin has indicated that while there was tension between many German Lutherans and a few German Catholics, there was no indication that the Wisconsin lawmakers, when they enacted the constitution provision in 1848, did so with any prejudice toward any particular sect or attempt to advance non-Catholic principles.

So you have this basis for the nonsectarian education and the basis for the no-funding principle that exists prior to the Blaine amendment came into being.

There were many impulses that I think involved and affected the Blaine amendment. Certainly, to a large extent, the argument about the funding of Catholic schools and Catholic animus played a part in this, but it was not the only impulse that affected the times and the dynamic of the times. One of the impulses was the issue about Protestant school exercises in the public schools. In 1859, a controversy erupted in Cincinnati, Ohio, that involved the exclusion of the King James Bible and Bible reading and prayer from the public schools. This became highly controversial. Protestants got up in arms about this, saying that, basically, the schools would become godless.

This became highly controversial. You had many states following the lead of Ohio in prohibiting prayer and Bible reading in school (this was the non-sectarian prayer and Bible reading in schools, many times in response to Catholic complaint). So as a result from that climate, you had President Grant, first, and then James G. Blaine raise the issue about some type of constitutional amendment. Interestingly enough, as Professor McAfee mentioned, the issue was, of course, broader than just non-funding of religious schools. In President Grant’s speech, where he recommended a constitutional amendment, he recommended that states be required to have public school systems, that the states would actually have some type of imposition by the federal government on them for creating the public schools.

This became highly controversial, and even though it didn’t make its way into the final version of the Blaine amendment, you actually do see this continuing up through the debates of 1876 and through the Senate debates, when the vast majority of the debates took place. If you look at the debates of the Senate, this was really the primary issue that you see coming out of the debates there. Most of the debates that take place, that are reproduced in the congressional record, actually concentrate on these issues of federalism, on issues of states’ rights and whether the federal government can mandate public education, because a majority of the senators, on both sides, saw that this had the potential for requiring some type of federal control or federal mandate of public education. So, as I said, even though the Blaine amendment did not expressly provide for that, as had Grant’s proposal, it was still considered to be the natural implication.

A second issue, already mentioned, was that in between the House and the Senate votes, a very, very conservative Protestant group lobbied some of the senators to insert in the Blaine amendment a provision Blaine had not put in to guarantee that Protestant Bible reading would be protected. There’s a provision at the end of the Blaine amendment that now protects Protestant prayer and Bible reading, which of course was inconsistent with the provision in the Blaine amendment that seemed to suggest non-establishment of religion.

This also was controversial and came up in the debates – and the Democrats loved to pick at this inconsistency, that at one point the amendment said we aren’t going to have funding of religious schools, we need to have a separation of church and state or a non-establishment, but then at another point it constitutionalized prayer and Bible reading in the public schools. And Republicans had no good answer to that, because there was no way they could respond to that inconsistency.

A third point that also informed the debate to a certain extent was the issue about incorporation. All of you who are law students and lawyers understand this. The Blaine amendment contained not only the prohibition regarding funding of religious schools, but also the first clauses of the Blaine amendment basically incorporated those clauses from the First Amendment on states. Generally, what happened in 1947 was going to happen in 1876 by virtue of constitutional amendment. And again, many of the senators were concerned about the imposition of federal rule, empowering federal courts to come in and make decisions about religious issues that were taking place at the state level. So, you see, this also taking place in the congressional debates.

Outside of the Senate, too, you see within the literature many who are arguing back and forth about the legitimacy, the validity of universal public education. This was clearly a very controversial issue in 1876, with the federal government basically abandoning Reconstruction, and whether this would reinsert some type of federal control into Reconstruction. Even though many individuals, journalists and other observers advocated for some type of universal education, they said the federal government should not be involved in promoting universal education again. This should be something left to the states.

The point of all this is just to show some of the complexity of the times that existed here. Certainly, as was mentioned, the Republican Party wrapped itself in its own clothes of righteousness and tried to make the Catholic issue into a highly controversial issue, but it was not the only impulse surrounding the Blaine amendment. Many recognize the validity of this non-funding principle, a principle that clearly pre-dated the Blaine amendment and that had freestanding constitutional validity. As I said, that principle was, to a degree, expropriated by some of the nativist elements, but not all individuals who either opposed or supported the Blaine amendment took it only from just this one singular view – they saw the broader view that was at stake in the enactment of the Blaine amendment. Thank you.


Session Two

 

THOMAS C. BERG: (In progress) – as Steve Green said, the no-funding principle, a history of a stricter separation of church and state. Even if the state doesn’t have to deny funding to a school – which is what the Zelman decision says – the argument would be that a state should have discretion to adopt a stricter kind of separation than what Zelman requires. So one argument emphasizes states’ rights to adopt a stricter separation of church and state. The other countering theme is that the state should have control over how it spends its money. A state should be able to make decisions on how its money is spent, and that principle may be of considerable appeal to several of the justices.

I want to suggest here at the end a few reasons why I don’t think that those themes will prevail against the presumption that discrimination against religious entities is unconstitutional.

First, the Court has confronted arguments about states’ rights before in this context, and it has rejected them. It has said that a stricter separation of church and state cannot overcome the basic constitutional right of equal access and equal treatment for religious groups. That was specifically said in the Widmar case, the earliest one of the equal access decisions. In fact, in all of these cases involving clubs meeting on school grounds, the Court implicitly, if not explicitly, rejects the school’s ability to be more separationist than the Establishment Clause requires.

There are also, I think, some reasons not to allow the states to be so strictly separationist as to deny vouchers. Think about it in terms of some of the arguments against vouchers that were mentioned this morning, particularly by Steve Green, but others: For example, the argument that religious schools should be excluded in order to protect the taxpayer’s right not to fund religious schools. Well, that’s a principle that we simply don’t carry to its conclusion. If so, we wouldn’t have Pell Grants for youth at religious colleges; a Pell Grant or other kinds of federal scholarships would not be available for use at religious colleges.

The theory of Zelman, the principle of Zelman in the end, is that it is the individual making the choice about how to use the money. And what the taxpayer is funding, as I think somebody said this morning, is a secular education.

The argument that different religions will be competing for dollars and will be fighting it out in the legislature as to how much money they get – that’s an argument that makes some sense with respect to direct appropriations, where the legislature has to decide how much money goes to each school. It’s not an argument that applies to the individual decisions of lots of families, where the money ends up at a religious school on the basis of those decisions rather than a political fight in the legislature. I accept that political fights in the legislature over how much money different religious schools should get are constitutionally suspect.

But the arguments against the inclusion of religious schools in programs involving individual choice, I think, are not strong enough to overcome the presumption against discrimination.

A couple of other points, then, here at the end. Even if a state does have discretion to say, “we’re not going to fund religion because we don’t want to have the taxpayers supporting religious teachings,” it’s important to realize that the exclusion of religious schools from a voucher program goes far beyond the state refusing to fund religious teaching. Religious schools provide an education, that is of secular value to the state, as well as the religious education. And the denial of a voucher to a family that wishes to use it at a religious school is a denial of that family’s benefit for the secular education that it receives.

The state is going beyond refusing to fund religion, and in terms of the Court’s case law on conditions on funding, the state is imposing a penalty on the choice of religious education – because you not only lose your funding for the religious component of a religious school, you also lose your funding for the education altogether. I think that makes it an unconstitutional condition, in the Court’s term, and makes it likely to be struck down.

Finally, there is a religion-neutral way for the state to accomplish its purposes. If the state is concerned with providing aid to religious schools, even in the attenuated form of a voucher program, it has the option to decide not to have a private school voucher program at all. And I think that, as Seamus Hasson said this morning, at least for the foreseeable future, such a decision (to fund only public schools) is not open to constitutional challenge. If that’s open to constitutional challenge, well, then the world of education funding is radically changed, and we won’t be talking about religious school vouchers.

But, at least under current law, the state can make a distinction between schools that it operates and private schools. And that is a religiously nondiscriminatory way of achieving the goals of separation that the state might have. It’s also a goal that doesn’t undermine the state’s other interests in quality education very much, because, as some others have remarked, a large percentage of private schools are religious. The incremental amount of schools that the state won’t fund, if it decides not to fund any private schools, is not that great compared to the number of religious schools. So withholding funding from all private schools does not greatly affect the state’s other interests in education, and the state can still achieve its goals of separation of church and state.

I think for all those reasons, the case against excluding religious schools from a voucher program open to other private schools is very strong in doctrinal terms. And I’ll leave it there. Thank you.
(Applause.)


LAURA S. UNDERKUFFLER: The question before us, to my mind, is whether states must be forced to fund religious schools. I think there are more narrow questions one might frame, but that is, in fact, the large question before us.

In my view, there is no viable federal constitutional argument that states are required to fund religious institutions, including religious schools. In addition, there are excellent reasons why the funding of religious institutions, including religious schools, is a very bad and dangerous policy.

The core claim of those who support the use of vouchers, or even direct funding of religious schools, is that if a state funds secular schools, it must fund religious schools as well. Indeed – the argument goes – to fail to do so discriminates against religious institutions and individuals in violation of the Free Exercise Clause and the Establishment Clause. They cite broad statements of equality that the Supreme Court has enunciated, such as that government must favor “neither one religion over others nor religious adherents collectively over nonadherents.” Statements of this kind are cited as evidence that religious and nonreligious institutions must be equally treated – and equally funded – by government. It is my belief that any reflection on such statements indicates that they cannot have the sweeping and acontextual meaning that these advocates imply.

Never has the Supreme Court held that religion and nonreligion must be treated equally for all purposes under the Constitution. In fact, such a proposition is completely implausible. The Free Exercise and Establishment Clauses are themselves testaments to the fact under the Constitution, religion is the beneficiary of certain privileges and subject to certain disabilities. Cases dealing with religious exercise, religious conscience, public funding of religion, and endorsement of religion by government are all premised on the obvious assumption that religion is subject to special constitutional treatment.

Indeed, I believe that most individuals who are proponents of the idea of equal funding of religious schools do not, truly, want equality in that sense. There is no desire on their part that religion lose its special privileges. Rather, they want religion to remain different when it comes to privileges, but lose its difference when it comes to disabilities. It is my argument that this is impossible. It is the same characteristics – the same powers that religion has in individual lives – which generate both its benefits and its dangers. Obviously, a more nuanced understanding of equality in this context is required.

There are three doctrinal settings in which the Court has implemented ideas of religion and equality, and which “equal funding” advocates cite for their conclusion that such funding is required.


The first one is that religious individuals cannot be subject to discrimination because of their status or identity as religious persons. For example, there is the case of McDaniel v. Paty, which dealt with a state law which explicitly prohibited a “minister” or “priest” from holding public office “because of his status as a ‘minister’ or ‘priest'” (emphasis in original). It is my argument is this that kind of discrimination is not what a general refusal to fund religious activities or religious institutions involves. McDaniel held that government cannot deny a civil right or other benefit, otherwise afforded to all, because an individual is a Catholic, Mormon, Muslim, priest, or has no religious affiliation at all. This injunction is clear and unequivocal. It is not, however, what state refusal to fund religious schools or other religions institutions involves. In these cases, individuals are not unable to secure state funding because of their identity or status as religious persons – they are unable to secure this money because of the use to which that money would be put. This is not denial on the basis of religious affiliation or identity – it is not the same kind of religious status claim.

Those who advocate religious institutional funding respond that “religious status” must be understood more broadly – it must include not only “status” in the sense of identity, or religious affiliation, but also to include practices and activities that the religion in question involves. In other words, if one is a religious person, and if being a religious person involves attending religious schools, then the ineligibility of religious schools for public funding is a religious “status” claim.

My question here is: what, exactly, are the limits of such an idea? If the ability to attend religious schools is part of religious “status”, why not the ability to attend religious worship services? Why not the ability to involve oneself in religious cultural activities? Why not the ability to engage in religious governance? Indeed, why isn’t the religious counterpart of every funded secular activity by government a part of this claim? Clearly, the Free Exercise Clause does not go this far.

The second doctrinal principle that advocates of religious funding raise is the idea that public fora cannot discriminate against the religious viewpoint. This principle can be found in Rosenberger and other similar cases. My response here is that the Supreme Court has never held that religious schools are – themselves – “public fora” (demanding equal treatment and equal funding) in this sense. In addition, what are the limits of this doctrine? If religious schools are such “fora”, why stop there? Why aren’t churches, mosques, synagogues – indeed, all religious institutions – “public fora” as well? Because if – indeed – they are, then any state funding of secular institutions, and not all religious ones, would be discrimination against the religious viewpoint.

The third setting that involves the equality principle and religion is represented by the Hialeah case. This is the case in which the Court held that if the object or the purpose of a law is the suppression of religion or religious conduct, that is, in fact, in violation of the Constitution. Again, that is not the situation in the question before us. The purpose of prohibitions on the funding of religion by government is not to suppress religion or religious conduct – it is to avoid the divisiveness, strife, and violations of conscience that forced taxpayer funding of religious institutions has been associated in this country for more than 200 years.

The fact that existing Supreme Court jurisprudence fails to support a requirement that states fund religious institutions still leaves us with a fundamental, underlying question. Should that law be changed? Perhaps our prohibition on the funding of religious institutions really some anachronism left over from the 18th century, as some have suggested? In this day and age, in the United States, are we – in fact – the beneficiaries of such religious tolerance, that the reasons that underlie these prohibitions are no longer compelling?

Advocates of religious funding will often cite the U.K. and Europe as examples of countries where there is pervasive funding of religious schools with no apparent ill effect. These countries are cited to us as reassuring models of such funding in liberal democracies much like ours.

Interestingly, about a year and a half ago, I was contacted by a professor at Oxford University who was putting together a symposium issue for a journal published by Oxford dealing with this precise issue. Why was this project undertaken? Because – it turns out – the funding of religious schools has become an incredibly divisive, difficult and politically inflammatory issue in both the U.K. and Europe.

How has this happened? The problem is rooted in the fact that these countries are now facing true religious diversity. In both the U.K. and Europe, there has been a dramatic rise in the number of schools run by new, immigrant religious groups. Those schools are now making their rightful claim for equal funding. With these demands, a problem has arisen. While the citizens of these countries are very willing to publicly fund mainstream Christian and Jewish schools, they are not prepared to fund religious schools which advance ideas that the majority finds contrary to their conceptions of mainstream British or European values.

As the result of this conflict, the former chairman of the U.K.’s Commission for Racial Equality has stated that people’s attitudes “appear to be hardening and intolerance to religious differences is growing.” The social divisiveness of this issue has prompted one English advisor on interfaith relations to write that “[i]f we were starting today with a completely if implausibly clean slate, we would make all schools ‘secular’, teach all pupils about all faiths, and leave religious inculcation to the religious establishment outside schools.” The problem that they face, however, is that they are not starting with a clean slate. And, given their experience, the people there with whom I spoke were frankly stunned that we, in the United States, are simply hurtling down the funding road with very little thought about it.

Indeed, public sentiments about “acceptable” and “unacceptable” religions are as prevalent in this country as they are in the U.K. and Europe. When people in this country were asked in a New York Times/CBS News poll about a year and a half ago whether it would be “a good idea for the federal government to give money to religious organizations to provide social services like job training and drug treatment counseling,” 56% of the respondents answered affirmatively. However, when asked if this would be true ” if … the government would be giving money to religious organizations like the Nation of Islam, the Church of Scientology, and the Hari Krishnas,” the approval rate dropped to 29%. One can only wonder what the percentage would be if we included the Branch Davidians, the Children of God, Wiccans and so on.

What will we do with taxpayer funding of religious schools that teach racial prejudice, or that girls are by nature inferior to boys, or that it is the duty of women to submit to their husbands? What will we do with taxpayer funding of religious schools that teach that the religions of others are misguided or worse? In fact, the vaunted religious tolerance in this country is very thin. After the events of September 11th, 2001, I think that we all witnessed the religious backlash against some of our citizens – it was very obvious and very painful.

To forestall such divisive and bitter battles over public funding of religion, many states have either flatly prohibited taxpayer funding of religious institutions, or prohibited it implicitly by simply restricting funding to public institutions and public schools. Indeed, it’s my view that to the extent we have achieved religious tolerance in this country, it is precisely because we have enforced institutional separation of church and state, particularly in areas as divisive and controversial as elementary and secondary education. We simply have not forced taxpayers, religious groups, and citizens generally to approve of particular religious practices, and we have not forced them to fund particular groups, activities and beliefs with which they disagree.

Those who are in favor of religious school funding have several answers to what I have just said. First, they say that these dangers can be controlled by monitoring the practices and teaching of participating schools, denying funding to particularly offensive groups outright, enumerating the particular practices or teachings that are unacceptable in participating schools, and so forth. For instance, schools that would be run by religious “cults” that lack particular institutional credentials could be excluded, or schools that engage in discriminatory practices or that engage in teachings that citizens find offensive could be disqualified.

It’s my view that all of these efforts either would prove to be incredibly superficial or – if not – would be constitutionally invalid and practically unworkable. I don’t believe that the government is in the business – or should be in the business – of determining acceptable or unacceptable religious groups. Indeed, such determinations would be classic violations of the Establishment Clause.

When one moves to the content of religious teaching in schools, I think that the constitutional and practical problems become well nigh impossible. Any effort by the state to directly censure or control the content of teaching by religious schools would be rightly seen as an infringement on the constitutional guarantee of free exercise of religion.

Moreover, the idea that government could stipulate the content of what is taught in religious schools in this matter is, in fact, contrary to the very argument that the voucher proponents are making. Their point is that religious persons must be afforded a religious education. They can’t have it both ways. They can’t say – on the one hand – that the religious option must be provided because it is different, and – at the same time – that to avoid the problem of divisiveness, we will simply allow the state to determine which religious teachings are acceptable and which are not. The core problem here is that religion (because it is religion) claims exemption, and I think rightly claims exemption, from the very controls to which those schools would be subjected.

Second, voucher advocates argue that although these problems might be real when religious schools are directly funded by government, they aren’t real when we are dealing with funding that is directed by “parental choice.” This argument echoes the Supreme Court’s Zelman rationale. This isn’t funding of religious institutions; this is funding parents who then make independent choices of the religious institutions.

This particular theory is, of course, not new in constitutional litigation. The Court adopted it in Zelman, but this adoption has not been across the board in the Supreme Court’s history. Indeed, in Norwood v. Harrison, decided about two decades ago, the Supreme Court was confronted with a state funding scheme in which textbooks were purchased by the state and lent to students in both private and public schools, including all-white private academies. This lending program was established to “enhance educational choice” and to circumvent the prohibition on direct funding of racially discriminatory schools. In Norwood, the Supreme Court rejected this theory and instead chose to see the transaction for what it was.

In my view, the decision in Norwood captures the nature of such transactions far more accurately than does the Zelman rationale. When we have an individual who is authorized by the state to, in fact, transfer this money – when it is anticipated by the state that, in fact, this individual transfer will occur – when the activity that is being funded is, in fact, one in which the state maintains a vital interest and which the state would otherwise be required to provide (education) – I do not think that this is a situation where we can truly say there is no state involvement in the ultimate religious result. Furthermore, even if we say – yes – Zelman is something by which we are now bound, with no doubt about it, it’s my argument that states are clearly free to conclude that in the public mind, substantial funding of schools through vouchers will be seen as the public funding of religious schools.

Indeed, voucher advocates acknowledge this reality. Although they insist – on the one hand – that there is no connection between the state and the voucher funded schools, they simultaneously stipulate – on the other hand – that racially discriminatory or other undesirable schools need not or should not be funded under these programs. They recognize that there is and will be a clear connection in the public mind between the state program and the religious result. So, in sum, I would say that there are excellent reasons why states might want to prohibit the funding of religious schools through voucher programs.

Finally, there is the remaining issue religious bigotry underlying anti-funding state laws, which we talked about quite at length this morning. I won’t go into all of that again here. I will just note that whether or not dark motives of legislators impact the legal validity of a particular enactment is a very complicated constitutional question.

I would also note that if we take the position that bigotry, racism, sexism or other dark motives invalidate enacted legislation, we will have a very difficult time supporting our own federal Constitution. The Constitution was adopted in a world in which the vast majority of people accepted and wished to preserve slavery, the disenfranchisement of women, disenfranchisement of the poor, and all forms of religious bigotry. In fact, the vaunted First Amendment clauses were themselves, for the vast majority of drafters and ratifiers, not some grand statements of individual religious freedom but guarantors that state religious establishments would not be threatened by a federal religious establishment. Those state establishments included such features as criminal prosecution of Quakers, Baptists, Jews, Catholics, Lutherans, Muslims, atheists and others; the restriction of citizenship and the ability to hold office to particular Protestant groups; the funding of some religious groups to the exclusion of others; and so on. In other words, the truth of the matter is that religious intolerance and bigotry has always been with us. We need, I agree, to be very aware of this history of religious intolerance. The difference is, in my mind, where we go from there. My conclusion is that this history should make us more sensitive to the need to separate church and state, rather than less so.
Thank you.

(Applause.)


FREDERICK M. GEDICKS: I’d like to thank the Law School, the First Amendment Law Review, and the Pew Forum for the opportunity to be here. As I listened to Tom and then to Laura, I thought that I could just say that I’m in a position halfway between both of them. But then as I started thinking about it, I think my position bounces back and forth between both of them, which is not quite the same thing and reflects, I think, a little more of the conflict that I experienced in thinking about this issue.

I want to begin by talking about what I think are a couple of distracting issues, perhaps even red herrings. I think one of them is the anti-Catholic origin of the Blaine amendments. I don’t want to suggest that it’s irrelevant, and I don’t want to suggest that it wasn’t real, but I think what’s more important is the social meaning of these amendments today, not their social meaning 125 years ago. I think Bill Marshall mentioned the anti-polygamy laws, both the federal laws and the ones that now exist in the state of Utah. These have gone through several permutations of contemporary social meaning. Clearly, 100 years ago, they were seen as instruments to force the Mormon church to conform to the Victorian morality of the times. Several decades ago, they were seen as perhaps pro-feminist statutes, striking against patriarchy. Now they are considered child protection statutes. I think there are very few people today who see them as anti-Mormon statutes. In fact, the Mormon church itself is now heavily invested in portraying itself as a mainstream American Christian church, and the last thing the church wants is a return of polygamy. In Utah the church’s only regret is that the secular authorities are not more vigorous in prosecuting polygamy.

And so, if we think about the Blaine amendments from that point of view, the fact that think you’d have to read three books and four law review articles and some monographs to figure out if they’re anti-Catholic maybe suggests to us that most people don’t react to the amendments in that way any longer. Perhaps they’re anti-religious. It may be that that’s part of their social meaning, but another part of their social meaning clearly is that they’re simply pro-separation of church and state. And whatever might have been the origins of separationism, I think that doctrine today is well within the intellectual and cultural mainstream in the United States.

So let’s suppose that all of the Blaine amendments were struck down tomorrow, as violations of the Establishment Clause or the Equal Protection Clause or the Speech Clause, or some other clause – there are lots of choices. I think a number of states-Oregon and Washington come to mind-might well reenact Blaine-type restrictions. I think there may even be states that don’t immediately come to mind – it’s possible Utah might reenact them as a reaction to the perception that vouchers threaten public education; the anti-voucher forces might see themselves as worried about the state of public education rather than portraying themselves as anti-religious. Utah is a state in which there is great concern about the funding level of public education. After many decades of strenuous effort, we have finally reached the bottom; we’re now number 50 among the 50 states in per-pupil funding.

And so, things like vouchers, which risk upsetting the funding of public education and otherwise look to upset the status quo of public schools, are perceived as threats to public education rather than as efforts by religions to get money.

At any rate, if we were to have these reenacted “sons of Blaine” or “daughters of Blaine” amendments, I think they’d raise the same issues that we should be focused on without this distraction of their religiously hostile origin, and that is, what is the meaning of the neutrality that the Establishment Clause imposes on government action?

I do agree with Tom Berg that the Smith case, and particularly the Lukumi case, make it clear that you cannot impose religious classifications on government funding decisions. You can’t fund everybody in a certain class except the religious folks. I think, though, that this is perhaps another red herring, that doesn’t really describe where the action is going to be in the next five or 10 or 15 years. Perhaps it doesn’t even describe where the action is now. Nobody is much worried about state legislatures enacting laws which single out particular denominations or even religions in general. Legislation is generally much more sophisticated than that. This is not how these issues typically arise. Now, you do have the Lukumi case, things do happen, but if you were to try and choose the greatest threat to religious liberty in the United States, it would not be state laws that single out particular religious denominations for persecutions on their face. That just doesn’t happen very often.

I think the action is going to be about the extent to which government can impose more general secular conditions on the receipt of voucher funds. And so I want to defend the following proposition: It is constitutional for states to condition a religious school’s receipt of voucher money on the school’s adherence to important state policies, as long as those policies are secular and constitute an incidental burden on the school’s religious commitments.

Let me just skip through some other material that I have here, which I think has already been adequately covered by the first two speakers.

It’s clear that in government funding decisions, neutrality, after a trail of 20 years worth of cases, has finally eclipsed separation as the doctrinal rule for distributing funds and benefits, and that’s a significant victory for the forces of conservative religion. For a long time, the separation of church and state constituted a serious obstacle to full participation by religious organizations in the contemporary American social welfare state. The separation doctrine denied government funds and benefits to religious groups and individuals who were otherwise fully qualified to receive them, simply because of their religious commitments and religious orientation. Zelman is really only the latest statement that religious neutrality doesn’t require this. It’s clearly the most definitive.

That still leaves us, though, with the question how much protection does Establishment Clause neutrality extend to religion? And I think the distinction between offensive and defensive rights offers one way to think more clearly about this question. It’s well established under the Press Clause, for example, that the Clause protects the defensive right of the press not to be restricted in its newsgathering activities anymore than the general public. On the other hand, the Clause does not protect an offensive right of the press to a preferred status or access to information above that enjoyed by the general public.

And so I think that Establishment Clause neutrality can be understood as protecting precisely this kind of defensive right, the right of religious organizations to participate in social welfare programs on the same terms and conditions as any other organization, but not an offensive right of such organizations to participate on some privileged or special basis that’s peculiar to them.I think this distinction is important because to say that Establishment Clause neutrality protects religious groups and individuals from exclusion on the basis of religion is not to say that those groups are protected from exclusion on some other basis. I don’t think there’s any doubt that a state could exclude racially discriminatory schools from participating in the voucher program. In addition to the Norwood case, which Professor Underkuffler discussed, you also have the Bob Jones case in which the Supreme Court upheld the Internal Revenue Service’s revocation of Bob Jones University’s federal tax exemption because of the University’s racially discriminatory policies. Racial discrimination in education is a social evil whose eradication may override the group and associational right of those who continue to hold those beliefs. Religious organizations that engage in racial discrimination can, of course, continue to implement that discrimination within their organizations, but they’re not constitutionally entitled to get government funding to do so.

In principle, then, while religious organizations and individuals can’t be disqualified from receiving state aid on the basis of their religious beliefs, it’s certainly constitutionally legitimate to disqualify them on the basis of important social policies that extend to similarly situated secular groups as well as religious groups.

In this regard, I’d just like to discuss briefly three kinds or groups of policies that might condition the receipt of voucher benefits, in ascending order of controversy: anti-discrimination laws, restrictions on hate speech or hate teaching, and perhaps one that goes to the very purpose of public education, education itself.

Anti-discrimination laws. Beyond racial discrimination, you get onto less firm ground very quickly. States might condition receipt of voucher funds on a school’s refraining from gender or sexual orientation discrimination, as well as racial discrimination. I don’t think it’s enough simply to say that the decision where to spend voucher funds is the parents’ decision. And I don’t think Tom really believes that either. I mean, voucher funds are not like a fire-and-forget missile. If you’ve been watching television, you know the military has these weapons that onto the target upon firing, and then after firing the pilot can forget about the missile and fly off after something else. The sense I got from listening to Tom was the vouchers are sort of like that. You send out the voucher; you don’t need to worry about what it does, because that is determined by private actors–parents–rather than the government.

But the state is providing vouchers because it has a significant interest in education. And it has a significant interest in education for a variety of reasons. And so, it seems to me, that it’s at least plausible for the state to decide that it wants people to be educated for certain reasons and that there are certain kinds of education that don’t satisfy these reasons. And it may well be that an education influenced by gender or sexual orientation discrimination or those sorts of things doesn’t fulfill the state’s educational goals.

Now, it is true that this is imposing a certain kind of pressure on religious groups to conform. And if we were talking about direct regulation – that religious schools could not exist if they engaged in racial discrimination or gender discrimination or sexual orientation discrimination-then that would be a serious problem. That’s not what we have here. I don’t think that religious schools have a right to maintain a distinctive identity, especially a distinctive identity that is dramatically at odds with important state policies, at state expense. If religious schools are going to deviate from those policies, it may be that they have to do it at their own expense.

Hate speech. This actually is a provision of the voucher program in Zelman, which apparently didn’t bother the majority at all, although it did bother at least one of the dissenters. Now, this sounds in familiar political correctness themes. Gender discrimination is not quite the same as gender stereotyping. Professor Underkuffler mentioned this. Could the state condition receipt of voucher funds on a school’s eliminating stereotypical gender roles from its education curriculum? Could it condition voucher funding on a school’s teaching that the great internal conflict we had in the 1860s was, in fact, a “civil war,” and not a “war between the states” or a “war of northern aggression”? Must a religious school teach the Holocaust in a particular way? Can a religious school teach that nonbelievers go to hell and are condemned and, therefore, implicitly condemn a different sort of person than those who believe in the only true religion? You can also see some of these themes from the right. Could a state condition receipt of voucher funds upon display of the flag and recitation of the Pledge of Allegiance? We might call that the growing phenomenon of patriotic correctness as against political correctness.

We do have a Supreme Court case on point, Rust v. Sullivan, which says that when the government is speaking, when the government is implementing a program, it can decide what it’s going to say and not going to say, or the speech that it’s going to fund and the speech that it’s not going to fund. Now, as Professor Berg pointed out, the Zelman theory is that the state’s not speaking at all here; parents are speaking. But again, I think that ignores what’s really going on when we’re talking about education. It’s not a fire-and-forget missile. The state has significant interest in what goes on in every religious school where state education funds come to rest.

Again, to take another what I think would be uncontroversial condition, surely the state could refuse to allow voucher monies to be used at religious schools that are not certified or accredited in some way, and so that pulls one right back into the state programming. Maybe it’s not the state speaking, but it surely is the state participating in a legitimate way in the educational process.

Lastly, and I think most controversially, why do we have public schools at all? Why do we make children go to school? At least in the United States, there is this tradition that public schools are a good thing in terms of tolerance and diversity, that it’s one of the few places where Americans of different races, ethnicities, religions, and politics come together and interact with each other. Now, that may really be the optimist’s tale of public education. I’m not sure if it’s true or not, but it’s certainly plausible. And we’re not talking here about what the states must do; we’re talking here about what is rational for the states to choose to do. And a state may decide that it wants only to fund education that contributes to or helps students to learn how to deal with difference and diversity in a pluralist society–education that habituates one, you could say, to difference.

You can ask, does a state have the option of excluding from funding those groups, religious or secular, that tear the social fabric rather than merely stretching it? In the wake of 9/11 – again Professor Underkuffler mentioned this, about funding certain kinds of fundamentalist Muslim schools–this is a front-burner issue. I don’t think it is just a function of religions that the majority is comfortable with and religions that it’s not comfortable with. I think it’s a function of ideas and attitudes that majorities are comfortable with and not comfortable with. Racial discrimination, again, is the easiest example. We have finally reached a consensus in the United States that racial discrimination is bad. There’s still lots and lots of work to do about exactly what it means to discriminate. The affirmative action cases I think will give us some additional insight on that. But you don’t get elected to office these days by running around arguing that you want to resegregate the schools on the basis of race, or if you do you have to speak in code, and if you have too much to drink, as Trent Lott did, and you slip out of your code, then you get into trouble. And that is, I think, a measure of some of the progress that we have achieved in that area.

And so it may be that there are other aspects of the social where we simply can’t afford, or at least the state could plausibly and rationally decide that it can’t afford a rift. We can stretch it, but we can’t rip it, and the state may well condition voucher funds on a school’s avoiding such rifts.

I think with that I’ll simply sit down and leave the rest of the time to Professor Garnett.

(Applause.)


RICHARD W. GARNETT: When I was a law clerk, my judge – who was very patient and respectful, and who believed strongly in the right of claimants to make their case before the court – used to listen attentively, asking respectful questions, and then tell the young prosecutor, “I think we’ve heard all we need to hear about that.” Now, normally these over-eager lawyers would not take the advice and they’d ramble on anyway. It appears that I’m about to do the same thing. (Laughter.) Certainly, it is tempting to say, “I will now limit my remarks to things that have not been touched upon . . . , thank you very much.” (Laughter.) But I will try to earn my lunch.

What brings us here today is the Zelman decision: the questions it answered and the questions that it left unanswered. I think it is important to identify, or to remind ourselves of, the matters that Zelman did not resolve. Zelman, as we all know, held that voucher programs may include otherwise eligible religious schools; it did not say, though, that they must. It had no occasion to consider that question.

This unanswered question points to an under-remarked feature of Zelman, one that I think is really worth celebrating: Zelman wasn’t Roe. That is, Zelman didn’t end the conversation. Zelman said, in effect, “carry on amongst yourselves; decide whether or not you think school choice is a good idea.” And that is a good thing. Whether, in the end, we “like” the Establishment Clause analysis that Zelman employed, I’d like to think that most of us agree that, by leaving it up to us to continue to debate the wisdom of school choice, the Supreme Court did a good thing.

Well, immediately after Zelman, as we all know, the talk shows and the law-professor list-servs were abuzz with warnings that the game was far from over and that significant obstacles remained to the implementation of school-choice programs. Those obstacles – the so-called Blaine amendments – are what we’re gathered to talk about today. We are trying to decide what we as lawyers, and as citizens, should do with these provisions, how should we think about them, and what, if anything, we can learn from them.

Now, we might ask whether the Blaine amendments are simply another example of federalism at work. There’s a lot of talk swirling around constitutional-law circles about “federalism” these days – perhaps the Blaine amendments should be situated within that conversation.

But then we might go further and ask, what kind of federalism do the Blaine amendments represent? Do they exemplify the kind of federalism that Justice Brennan celebrated in his famous 1977 article [State Constitutions and the Protection of Individual Right] urging States to correct the Supreme Court’s conservative turn by using their own constitutions to set the bar higher in the individual-rights context? Relatedly, we might view the Blaine amendments as an early example of what Justice Brandeis celebrated as experiments in the laboratories of democracy, or in – as Professor McAfee put it this morning – the “greenhouses of reform.” The Blaine amendments might also represent, though, another kind of federalism: they might be precisely the kind of provisions that the Bill of Rights and the Fourteenth Amendment removed from the menu of local legislative experiment options.

Put differently, should we be looking at the Blaine amendments as efforts by particular communities to provide greater protection for religious freedom, by or through sharper separation of church and state? Or, should we regard them both morally and constitutionally as the failures of particular communities at particular times fully to appreciate the nature, demands, and implications of religious freedom and of liberal democracy?

“Well,” you might be thinking now, “these abstract questions are fine for law school conferences. But what’s the point?” There are, as Professor Berg discussed, a number of very practical, timely, “real world” questions about the Blaine amendments that are being fought out in the courts. We’re going to learn more about those this afternoon. To be candid, on these matters, I have very little add to what my colleagues have said. With all due respect to Laura, I tend to agree with Tom. It seems correct to say that, given current doctrine, it violates the Constitution for a state, using a provision of state law, to exclude otherwise eligible religious institutions from otherwise generally applicable funding programs.

Again, this issue is being fought out in the courts, and I take it as given that reasonable people can and will disagree about it. I’d like to put aside, for now, this and other doctrinal questions, and go back to our discussions this morning about the alleged anti-Catholicism of the Blaine Amendments. I take Professor Gedicks’ point that our focus should be on their present-day “social meaning.” At the same time, we cannot understand the Blaine Amendments, or learn from them, unless we understand the ideology that inspired them.

In my view, it’s difficult to avoid the conclusion that these provisions are inextricably tied up with the Nineteenth Century’s most virulent, Know-Nothing, Maria Monk-style hostility to Roman Catholicism. The conclusion is unfortunate, but – in my view – unavoidable. We should accept it, and then try to work out what this conclusion means for present day Establishment Clause doctrine.
It is worth pausing here to emphasize a point about the doctrinal case that the Blaine amendments violate the federal Constitution: The success of these arguments does not depend on the Amendments’ anti-Catholic roots. That is, we do not have to solve the difficult doctrinal problem posed by long-gone actors’ bad motives. Tom is right, and present-day doctrine, applied in a fairly straightforward way, yields the conclusion that the Amendments are invalid.

That said, I do want to offer a few more reflections about the anti-Catholicism charge. I want to suggest, perhaps to the surprise of some, that it might be a danger to focus on that too much.

For starters, I worry that, by focusing on the anti-Catholicism underlying the Blaine amendments, we might miss the fact that hostility and suspicion toward the Roman Catholic Church and its teachings shaped our law and culture well before, and long after, the late Nineteenth Century controversies surrounding those amendments. As Arthur Schlesinger Sr. once quipped, “anti-Catholicism is at the same time our Nation’s oldest and one of its most enduring prejudices.” Fears of Spanish Armadas and Popish Plots were part of the cultural air that our Founders breathed. American anti-Cathlolicism was not simply a reaction to Irish immigration. It came over on the Mayflower; it came over with Milton, Locke, and Rousseau; it flowered in the Common School movement and in McGuffey’s Readers.

On the other hand, as Philip Hamburger and my colleague John McGreevy have demonstrated, concerns about Catholics remained powerful in American life, particularly in the circles of the political, legal, and cultural elites, well after Blaine left the political stage. In the 1920s, observers from the Ku Klux Klan to the Progressives writing for the New Republic worried about the “Catholic question,” and about the fitness of Catholics for democratic citizenship. In the late 1940s, Paul Blanchard’s warning, American Freedom and Catholic Power, was a runaway best seller and was widely acclaimed by the leading lights of the time. In 1960, John Kennedy was made to promise in Dallas that he would not, in fact, sell out the Nation to the Vatican. Throughout the 1960s and 70s – and still today, in fact – the image of a greedy, power-hungry Bishop was a staple of editorial-page treatment of school-funding controversies.

A second, related, and more specific problem with focusing too closely on the anti-Catholicism underlying the Blaine amendments is that we might fail to think also about the extent to which opposition to the perceived agenda and supposed teachings of the Catholic Church have shaped the incorporation and interpretation of the Establishment Clause itself. The story has been told elsewhere, but we should remember that Everson and McCollum – the fountainheads of constitutionalized separationalism – were handed down in the heat of the enthusiasm over Blanchard’s work. Justices Black, Frankfurter, and Rutledge made no secret of their admiration for Blanchard and of their sympathy with his concerns. Later, in cases like Allen and Lemon, the antipathy of Justices Black and Douglas toward political Catholicism is palpable. And, as four Justices recently acknowledged in Mitchell, an entire line of cases, dealing with the constitutional significance of “pervasive sectarianism” appears now to have been little more than the laundering of anti-Catholic polemics.
Finally, a too-close focus on Blaine and his biases could cause us to miss the importance of, and to fail to engage, his arguments. It is too easy and, in a way, quite misleading, when talking about Blaine and his ideological descendants, to use terms like “prejudice” and “bigotry.” I am reminded here of a point made by Peter Steinfels in the New York Times, in the midst of all the controversy about Gov. George Bush’s visit to Bob Jones University. Steinfels noted that there was something strange about the fact that right-thinking people everywhere quickly and loudly condemned the University for its alleged anti-Catholicism, when in fact “opposing anti-Catholicism in the United States by denouncing Bob Jones is about as relevant to today’s reality as combating medical error by condemning leeches and snake oil. The Catholic Church takes more nasty hits weekly on cable television than yearly from Bob Jones.”

My point is, we should not forget that James Blaine, John Dewey, George Santayana, Hugo Black, and so on were not simply bigots or fellow traveling Klansmen with an irrational, knee jerk dislike for Irish and German immigrants or for Pope Pius X. Rather, the Common School Movement, the Blaine Amendments, and a group then known as “Protestants and Other Americans United for the Separation of Church and State” also reflected the views and visions of many decent and intelligent people. For many, laws like the Blaine amendments and decisions like McCollum were not just expressions of what the Justices in Romer unhelpfully dismissed as “animus.” They were also efforts to translate into law certain philosophical arguments and political commitments regarding the nature and meaning of citizenship, democracy, freedom, and education.

And so, at this and similar gatherings, we should not only engage the question whether the prejudices of long-dead-legislators should be outcome-determinative in litigation over efforts to use the Blaine amendments to exclude religious schools from voucher programs. We should also be thinking about these legislators’ arguments, about the demands that political liberalism is thought to make on religious education, and about the alleged conflict between religious authority and political freedom. When talking and thinking about the Blaine Amendments, we should focus not only on the prejudices and biases of Nineteenth Century Brahmins, Radical Republicans, and Klansmen, but also on the ongoing arguments of which these Amendments are a part: about education, citizenship, tolerance and pluralism in a secular, liberal state.
Of course, I cannot possibly do justice to these arguments here, but I would like to flag one particular theme, a theme that one hears in the background of the Blaine amendments, in the thinking of John Dewey and other educational progressives, in any number of Supreme Court decisions, in the contemporary work of Gutmann, Macedo, and others, and of course in the work of theorists from Plato to Rousseeau: What should be the purpose and content of education in a liberal democracy? It strikes me that this question – along with, of course, various irrational fears, mistakes, biases, and conspiracy theories – was at the heart of the Blaine Amendment controversies, and remains a central problem of political morality today.

What, in other words, is education for? Is the “point” of education to produce citizens equipped with the attitudes and assumptions thought necessary for participation in, and service to, the liberal state, so as to make possible what Amy Gutmann calls the “reproduction” of that state and its values? Should education be constructed and regulated so as to produce and empower a certain kind of agent, an autonomous and unencumbered self who is capable, in Justice Kennedy’s words, “of determining for himself the meaning of life and the mystery of the Universe?” Or something else? Perhaps, as John Paul II has argued, education should strive to enable the authentic flourishing of the human person through a relationship with Truth?

The partisans in the school wars of a century ago had a vision of Roman Catholicism, and a vision of American democracy. In their view, the two were not compatible. As it turns out, these partisans were mistaken about a great many things. They misunderstood the Church and, in my judgment, they misunderstood America. They were, however, prescient in their concerns, which live on in contemporary debates about the role of religious expression and believers in the public square, about the compatibility of religious commitment with the virtues of liberal citizenship, about the meaning and demands of political and value pluralism, and about the nature and purpose of education.

I appreciate the work of the Pew Forum, and of The First Amendment Law Review, in providing us with an opportunity to wrestle with these debates and, perhaps, to move a little closer to resolving them.

Thank you very much.


Session Three

 

MARTY LEDERMAN: I thank everyone who has sustained and gotten here for the third panel. And I want to thank Melissa, in particular, and Bill and the others who have put this together for inviting me. It’s been a wonderful session. And thanks to Professor Loewy for encouraging the students to create this journal, and to the students for doing this remarkable job; it really is quite extraordinary.

We have the toughest burden here, which is to keep people interested at 3:00 on a Friday afternoon, on one of the first spring days of the year after a hard winter. And Melissa has set it up in a way that we might be able to accomplish that, because we’re going to try to make this a little more wide ranging and spin off into, if the panelists wish or if the audience members wish, into broader discussions of the charitable choice movement, of the conditions that Professor Gedicks was talking about, which I do think will become more and more the focus of this debate.

My personal prediction is that, whereas I don’t think the anti-Catholic animus will be despositive in these cases, I suspect that, in general, the federal courts will start to, and the Supreme Court will eventually, invalidate most of the Blaine amendments. And I’d like our panelists and the audience to speak to the following issue, in particular, if they can, if it fits in with what they were going to say. The issue is this: It strikes me that the difficulty here is not one of explaining the bad motives of the Blaine amendments and why they were enacted in the first place; the challenge for the states who are defending these amendments is to articulate a governmental interest that is legitimate, rational, and will be somewhat compelling to, especially, this Supreme Court. It strikes me that that’s what’s been truly lacking in the litigation thus far, at least among the state litigators, the AGs’ offices that have litigated these cases, not necessarily the private parties.

What you hear a lot of is the states want the right for cleaner separation, for more dramatic separation of church and state, Jefferson’s three intrinsic principles, taxpayer conscience – a lot of notions that are going to have no salience at all with this Supreme Court, it strikes me, and a lot of very broad, general ideas about why one would want more separation than the federal Establishment Clause is now understood to provide.

And I think the real challenge for those who would try to sustain the Blaine amendments – I don’t know if we have any state government litigators here – is to be able to articulate, in more detail, what the state interest is in not allowing students to go to these schools. And I think Professor Underkuffler has begun to articulate that here today, and Melissa last night, better than anything I’ve seen in the case law, where it’s all these very broad generalities that the states are coming up with. And I think that will be the challenge for the states.

I’d also like to take Professor Gedicks up and encourage the panelists, to the extent that it’s consistent with what they’d like to say, to talk about the conditions questions, because I agree, that’s going to become the focus of a lot of the litigation and a great deal of the legislation. The charitable choice debate going on in Congress right now is predominantly, at least on its face, obsessed with religious exemptions, that is to say, the question that the last panel discussed at great length, whether religion is treated equally for purposes of receiving funds, whether they should be, must be, or can be subject to the same conditions, particularly in the form of employment discrimination.

But I think in the school context, it’s going to become more and more whether they can be subject to curricular requirements and prohibitions, whether it be teaching evolution or not teaching hatred, or things such as that. And these are very salient concerns in the legislative processes that are going on now, and not so much in the litigation right now, but I think they will be as time goes on.

We’re going to start with Dick Komer, who is a senior litigator at the Institute for Justice. And you can read more about all of our wonderful panelists in the pamphlet. I would just like to commend their Web site, which is a wonderful resource on these issues. And I know they’ve been doing a lot of very interesting litigation and other work, for a long time, on the Blaine amendments. And now, finally, they’re getting the attention they probably deserve as these issues are coming to the fore after Zelman.

So we’ll start with Dick Komer.

RICHARD KOMER: Thanks very much for inviting me, Melissa, and the law review. This is a real treat for me; because I’m neither a historian nor an academic, I don’t get to go to law schools very much, except in the Washington area. I’ve never been to Chapel Hill before. I have been through North Carolina and to the outer banks before, but it couldn’t be more beautiful.

I’d like to start by making a generalized comment, especially for those of you who are law students, because being here brings back my law student days a long time ago, at a competing institution slightly farther to the north, but still in the South, founded by someone we all refer to with affection, but I, quite frankly, found it annoying as hell up there, attending Mr. Jefferson’s university. And that is that you need to cultivate a sense of irony, because what we were talking about, particularly in the first session today, was about the history of the Blaine amendment in the mid-1870s. That happens to be the Congress that passed the three Reconstruction post-Civil War amendments to the U.S. Constitution, the 13th, 14th, and 15th. They passed 42.U.S.C.-1983, 42.U.S.C.-1981. These are the civil rights amendments, which basically are relied on in civil rights cases, including those under the First Amendment religious clauses, every day.

And the irony in this particular discussion, of course, is that in 1947, in Everson, as everyone has pointed out, the First Amendment was applied against the states, despite the language of the First Amendment that says it applies to Congress. And the entire historical discussion this morning is, to me, ironic, because it shows that the people who passed the 14th Amendment, which was then incorporated against the states, in fact, had no idea that’s what they were doing.

They were not intending to apply the First Amendment to the states. And as someone else pointed out, the First Amendment itself had a dual purpose: To protect against a federal establishment of religion and to protect the states’ current establishments of religion, or even a future establishment of religion, if a state wanted to. North Carolina was Presbyterian. Until the 1780s, Virginia was what’s now called Episcopalian. And almost all of New England was Congregationalist.

Virtually all of the original 13 states had an established religion, with the exception of Pennsylvania, because it was more religiously pluralistic at that time. So the irony here is that the Supreme Court applies the U.S. Constitution to the states, and now we are trying to use that application to essentially overrule or cutback interpretations of state constitutions’ religion clauses. I am sure that all of the justices from the 1947 Everson court would be turning in their graves if they realized that was how we were proceeding.

But my next suggestion and irony that is necessary to law is, Seamus Hasson referred to the Thomas Nast cartoons about the school question in New York City. And I just happen to have a book with me that has a cover of a Thomas Nast cartoon, which you really ought to see, because it’s just wonderful. It shows the ruins of a building with the American flag flying on it upside down, indicating distress, and it’s labeled “U.S. Public School.” And there’s all these pathetic schoolchildren on the bank of a river, and they’re being attacked by alligators, which are basically Catholic bishops, because the alligators’ mouths and teeth are the bishops’ miters that they wear. And protecting the little children is this little classic American figure here, and who, according to Steven Green, is protecting the non-denominational public school. However, you can see tucked into his jacket a book entitled the Holy Bible. So he is basically – and this is the only criticism I would have of Professor Green’s talk – he’s protecting the non-denominationally Protestant schools from attacks by the Catholics.

Now, I have a very simplified history about the Blaine amendments, which has to do with the fact that because the general public school approach at that time was, in fact, to be non-denominational, but non-denominationally Protestant, the Catholics created their own school system. And the Blaine amendments are a response to their efforts to get equal funding, equal direct funding. Just as the Protestant public schools were being funded directly by the state, they wanted direct funding of their schools.

Undoubtedly, the Lutherans, who, as one of the Protestant sects, refused to go along with the general non-denominational approach of the public schools, they’d have liked it too. The point is that the Blaine amendments’ language, especially the federal, in all the versions, is directly responsive to that question. And there’s no question that in interpreting them, that’s what you want to focus on, that, in fact, they wanted a big state handout, and the Blaine amendments were written to say, “No, you can’t have them,” to preserve the public school monopoly of the Protestant denominations, hence the Holy Bible, which is the King James Bible, and not the Catholic Douay-Rheims Bible.

I work at the Institute for Justice, and, like Mark and Steven, we’ve been litigating these school choice cases for about 12 years now, starting in Milwaukee. And the Blaine amendments are not something new to us, because it comes up in every one of these cases. Naturally, the opponents of a school choice program prefer to have it struck down on state grounds rather than federal, because it makes it that much harder to get the federal Supreme Court to review it – independent state grounds.

The only reason that we haven’t seen more on this is that we’ve been generally successful, in the state courts, in getting the Blaine amendments interpreted in a fairly narrow fashion, parallel to the Establishment Clause decision in the United States Supreme Court in Zelman, which came later.

So we have been working on this for about 12 years, which has allowed me to create our other little visual aid, which is my map. This could be really scary, because, as you can see, with the exception of Maine – ironically, James G. Blaine’s state – North Carolina and Louisiana, everybody’s got a Blaine amendment, or a compelled support clause, or both.

I want to talk about the compelled clauses for a second, because they also can be interpreted to be a problem for school choice programs. In fact, two school choice programs have been struck down on state constitutional grounds – state being broadly construed. The inclusion in Vermont of religious schools was struck down in 1999, in the Chittenden case, by the Vermont Supreme Court, which had earlier ruled that the inclusion of religious schools would not violate the federal Establishment Clause. They predated Zelman by about six years there and got it right, which, with the Vermont Supreme Court, is a minor miracle.

The other program was struck down under the commonwealth constitution of Puerto Rico, which had an innovative school choice program before anybody here, with the exception of Milwaukee, Vermont, and Maine, and was struck down under this commonwealth constitution because it had a Blaine amendment in it. And that Blaine amendment was imposed on Puerto Rice in the 1917 Jones Act, which gave commonwealth status to Puerto Rico.

So this isn’t an academic question for us. We are a little different from the Becket Foundation in that we don’t have a general First Amendment religion mission. We come to the First Amendment religion clauses from a parental choice perspective, which is one of our missions, to encourage the empowerment of parents, particularly low-income parents, to exercise the sorts of school choices that we exercise every day, in where we live, by choosing schools – I mean, choosing where we live on the basis of whether they have good schools – or by sending our kids to private schools. We can afford to do that. That’s a form of school choice that we just take for granted because we can afford to do it.

From our perspective, the religion issues are vital, because where school choice has the most potential policy benefit is in America’s inner cities, where the public schools range from mediocre to wretched, and where school reform has been going on for some 30 years, with no visible effect. In fact, they have deteriorated considerably over that period of time. To provide them with an alternative requires the inclusion of religious schools, because that is the vast majority, like in Cleveland and Milwaukee, of schools that exist currently in those areas. School choice programs can generate the creation of new private schools, many of which will be non-religious. But as far as the initial program, the schools that are there and the schools that are working are frequently religious schools.

The parents we represent in our litigation know about those schools. They know that those schools take the same kids from the same neighborhoods and help them succeed where the public schools fail. Many of our clients, most of the people making use of these programs in Milwaukee and Cleveland, are low income and non-Catholic. Yet, for them, the Catholic schools represent a positive and better choice.

So we come at these issues from a perspective of trying to promote parental choice programs, and that has resulted in us having to address state and federal religion clause issues. As you can see from the map, most of the states, in fact, all of the states where we have litigated to date, have one or the other of these sorts of provisions. The compelled support provisions predate the Blaine amendments by a long time and are basically intended to disestablish religion in the states that adopt them.

The compelled support clauses – and here, I paraphrase – basically say that no one shall be compelled to support or attend or erect a church without his consent. There is, as with the Blaine amendments, a lot of variation in the language. But the basic idea here is to eliminate the original practice of establishing a state church, paying the ministers state salaries, and providing, through tax money, for the erection of churches.

In almost all of these states in the 1700s, church attendance was originally mandatory. In Jamestown, in the less religious Virginia Colony, as opposed to the Massachusetts Bay Colony with the Puritans, you were expected to go to church five times a day, and people kept record. And if you didn’t, you got into a lot of trouble.

It changed a little bit by the time Virginia disestablishes the Anglican Church in the 1780s. But you can see that establishing a religion was a common practice. It’s the context in which these things arise. Now, Pennsylvania has the first of these compelled support clauses in its 1776 constitution, which was followed, shortly thereafter, by Vermont, in 1777.

But as with the Blaine amendments, as I said, these can be construed – they don’t have to be, and frequently have not been, but they can be construed – in just the same way that the opponents of parental choice programs wanted the federal Establishment Clause construed, and would like the Blaine amendments construed, namely, to apply to assistance to families that use that assistance to attend a religious school, in a free and independent choice.

So that’s the problem, which is that these things can lend themselves to a broad versus a narrow construction. Now, as was mentioned earlier, only about 16 of these states with Blaine amendments represent really serious problems. Why? Because not every one of them has been construed, in this broad fashion, to apply to what we call sometimes “indirect assistance.” It’s really incidental assistance, but it’s assistance that has been provided to a family, which has used that to select a school.

And when that school is a religious school, 16 states, we think, would interpret their language to say that’s the same as providing aid the religious institution. That is certainly what the Puerto Rico Supreme Court said about its Blaine Amendment, and it is how the Vermont Supreme Court in Chittenden interpreted their state compelled support clause.

This is an ongoing issue. It’s not an academic issue for us. It’s a litigation issue for us. We are currently helping to defend the Florida parental choice program, the opportunity scholarship program there, which was enacted by the Florida legislature at the behest of Governor Jeb Bush and served as the model for the No Child Left Behind federal legislation, except that the voucher part was taken out of that one. It is currently on appeal at the Court of Appeals in Florida, because the trial judge interpreted Florida’s Blaine Amendment to preclude providing assistance to the parents who used it to go to four religious schools and one non-religious school, to send their children there.

We have initiated litigation in Washington State, which has another Blaine Amendment, and has interpreted it in a very restrictive fashion, most notably in the Witters case, where Mr. Witters won a unanimous United States Supreme Court decision, and it would not violate the federal Establishment Clause for him to use state and federal vocational rehabilitation funds to attend a private religious college to become a religious worker. They said it was okay, unanimously. Sent it back to Washington State – which, for some reason that escapes me, had not considered it under the state Blaine Amendment – which ruled four to three that Mr. Witters could not use his money for that purpose. Three dissenters believed it violated his free exercise of religion rights under the federal Constitution, but when they sought cert again, the Supreme Court denied it.

We are suing there on behalf of student teachers, who are attending public universities, who wish to teach, ultimately, in private schools, and who are forbidden, by actions of the state universities, from student teaching in religious schools. They must do it in either private non-religious schools or in public schools.

In Vermont, we have just filed another lawsuit, this time in federal court, since we’ve exhausted the Vermont court system, alleging that the Vermont exclusion by the Supreme Court’s action in Chittenden, the statute includes the religious school, and has, since it was first enacted in 1874, that their interpretation of their state constitution violates free exercise, free speech, establishment, and equal protection. So we’re looking for a federal court decision there saying the state court was wrong.

Finally, we have, or will be shortly, filing an amicus brief supporting granting of cert in another Washington case, Davie v. Locke, which some of you may be familiar with. It’s kind of weird, because the Ninth Circuit got it right, which can happen at a panel level, and gives the Supreme Court of the United States, if they took it, the occasion to prove that they just don’t reflexively reverse the Ninth Circuit.

The issue there is that Mr. Davie, who was attending a private religious college on a Promise scholarship, which is both means tested and merit based, declared a major, when he became a sophomore, that he wanted to study business administration and religion, because he wants to be a pastor. At that point, Washington State took away his Promise scholarship on the basis of state regulations deriving from their interpretation of their Blaine Amendment.

Just briefly, Melissa talked about three categories of Blaine amendments. There’s what I call the proto-Blaine amendments, which are those passed by states before James Blaine even got the idea. He, of course, took those amendments which had already been put into state constitutions and modeled his activities on those, either New Jersey or Massachusetts being the earliest.

There may be one or two states in this middle category, after the Blaine amendment went down. And I appreciate Professor McAfee’s discussion that it was not narrowly defeated, since I’ve been parroting Steven Green about that for a while now, and apparently, it was never going to pass. But that doesn’t explain why it’s in, you know, 37 state constitutions, or similar language.

What it does is that it’s mostly the third category, which is, although they didn’t get it in the Constitution, the enabling legislation, whereby virtually all states that came in after 1875 were required to have it in their state constitution. For those state constitutions, the issue of whether they had an independent bias against Catholics is kind of academic, because if you wanted to be a state, you had to have it.

Puerto Rico had to have it, and virtually all of the states west of the Mississippi have Blaine amendments, not necessarily because they wanted to, but because they wanted to be states. Utah, of course, got it in the neck, because they took over 30 years to become a state, not so much because of rejecting the Blaine amendment, but because until the head of the Mormon Church had a revelation that polygamy was not a good idea, it had always been a tenet of their faith that it was. But proving that even religions can accommodate crass political desires, they outlawed polygamy and became a state, I think it was about 1896. Without the polygamy, they probably would have been a state in the 1860s. But they were required to have it, and they did.

Finally, I would just like to make two very quick observations. One, I think the role played by the parents in these sorts of programs of making free and independent choices is more than just some sort of academic issue. I believe that it is, as the Supreme Court said in Zelman, a critical factor in determining the constitutionality of these programs. And I think it will be a critical factor, in these later lawsuits, addressing the Free Exercise Clause, because they do, in fact, make choices. And it’s not, as our opponents sometimes like to characterize them, that they are being inconsequential conduits for the religious schools. In fact, the religious schools act as contractors. They get paid for their service, just like I paid for services: I sent one child to a non-religious private school, one to a private religious school. In both cases, I paid tuition, and in exchange, they educate my child. I make that choice, and I’m the one, not the state, who is endorsing whatever education they are providing to my child.

Those of you who are here on guaranteed student loans, or attending college on a Pell Grant, made those same sorts of choices. Our higher education system, at the federal level, is characterized by student assistance. We very rarely, except in a couple of peculiar areas, provide almost all of our higher education assistance to families and to individuals, who use those, as Pell Grants, to attend whatever kind of institution they would like.

And consequently, we have a very good higher education system, characterized by a considerable amount of competition between public and private colleges, and it’s the opposite of what characterizes our elementary and secondary system. Finally, because the Utah constitutional provisions are in your packet of state constitutional provisions, this issue is just one of the state constitutional issues that involve parental choice programs.

In Utah, there will never be a voucher program, but not because of any of those provisions – because a different provision of the Utah constitution requires that all money raised by their state and corporate income taxes go to the public schools. Similarly, Alaska has provisions in its state constitution that prohibit the use of money for any non-public school.

Therefore, the inhibitions presented by state constitutions are by no means limited to the state religion clauses. And I just wanted those of you, whom I have misled, to bear that in mind. That’s why, in Utah, the legislature keeps considering tax credit legislation, another form of parental choice, because, strangely enough, you can have tax credits for non-public school purposes under the Utah constitution. You just can’t spend the money directly from the Utah treasury on a voucher type program.

I really have very little to say about charitable choice, because we don’t do charitable choice. But I would suggest that to the extent that the charitable choice provision follows assistance to individuals model, which is, I believe, already incorporated into things like TANF – and don’t ask me what that is – but it’s welfare reform money. Typically, there, the individual is given the choice of a provider. And under that provision, if they choose a religious provider, who has religious components in the program, that’s not a problem under the federal legislation. I think that that kind of approach jibes very neatly, provided you have an array of providers with the federal Establishment Clause, and how we would interpret state Blaine amendments.

Thank you.

MR. LEDERMAN: Just to follow up on the last point, until now, the charitable choice movement in the federal government has not included voucherized programs. It’s included mostly direct aid programs. And the limitation on that is that even this administration concedes that the direct aid money cannot be used for inherently religious purposes, in all of the programs, which has been quite a stumbling block. And until they can get an appointment to replace Justice O’Connor, it will continue to be a stumbling block.

So the new tack that the president announced in his State of the Union, and interestingly enough, the first program that he identified that would be voucherized, was the drug treatment program, in which he’s proposing to allow individual choice among drug addicts to go to different sorts of providers, some of which would be not just faith motivated, but very strongly faith-based, and not using the typical forms of treatment that have characterized direct aid programs for drug treatment. I haven’t seen any legislation like that yet, but I don’t know if it’s been introduced. But certainly, that’s going to be the next round of charitable choice.

It’s a great pleasure to be able to introduce Marc Stern. I wanted to take this opportunity, in introducing Marc, to note that although Bill said correctly that Melissa and the Pew Forum are to be commended for bringing true diversity and great, wonderful debates to their forums, and they do, the other remarkable thing is that Melissa and the Pew Forum, perhaps more than any other group I know, are able to bring together people of widely disparate temperaments, beliefs, and ideas, and find extraordinary common ground among them, and really to be able to parcel out the things that divide us and identify the common ground.

And Bill already said this, but I can’t recommend enough the statement of the eight scholars that Melissa commissioned, that Tom Berg largely drafted, and that Bill and others worked on. It is a remarkably balanced, fair, helpful, and descriptive statement on the state of the law post-Zelman. And it’s the sort of thing that only Melissa and the Pew Forum would have ever gotten together to do. I think it’s in your pamphlets, right? It’s very much worth reading.

All of which is to say that when I was in the Clinton Administration and Bill was, we did a lot of such work, with Melissa’s help and with Marc’s help, putting together a religious coalition that was extraordinarily vast and broad, and coming together on a lot of things, with people who would be at each other’s throats on many other issues, from an extraordinary range of organizations.

And Marc Stern was largely responsible for a lot of the hard work that went into keeping those coalitions together and creating the president’s guidelines on prayer in the schools and on religious expression in the workplace, and many other projects that we were quite happy to work with him on, that I think played a really constructive role at bringing the sides together, who aren’t as far apart as they think they are.

There’s hardly anyone around who knows more about the litigation and legislation on these issues than Marc Stern. And I’ll introduce him now.

MARC STERN: One of the difficulties of coming last is either you have nothing to say or you’re in the Sisyphean stables, and you’re cleaning up, depending on your point of view. I’d like to make a couple points.

First of all, it’s very important to distinguish between voucher proponents; they don’t all look alike. The first and leading voucher proponent was, of course, Milton Friedman, whose interest was not religion, but was dual. One was in diffusing the school segregation crisis of the ’50s, essentially giving everybody a voucher and letting them choose whatever school they wanted. And the second was ideological, about markets. It’s about the role of government – I think Fred was talking about it before – whether there ought to be such a thing as public schools, whether that ought to be the primary vehicle for educating the next generation towards citizenship, not only in a political context, but in a sense of having the skills to proceed to carry on our society.

And there are those who come to the voucher argument because they regard the Blaine amendments, and the older version of the Establishment Clause, as a form of hostility and discrimination against religion, but who are not opposed to public education. Those of us who follow these things too closely have noticed that the Catholic Church has not been as visible on this issue as it was on earlier parochial school arguments.

I am told, and I believe authoritatively, that, in fact, the Catholic Church is of two minds about vouchers. While they believe, in theory, there ought to be vouchers, that parental choice is a good idea, that there has been discrimination against religion, they’re perfectly cognizant of the fact that many voucher advocates are really less concerned with the well being of religious education as they are with dismantling, disestablishing, literally, the public schools from their preferred place in American life.

And that brings me to a second point, which I think came out in some of the questions that I asked earlier in the day, which is that some of the arguments that were made in favor of abolishing the Blaine amendments are applicable not only to a statute or a constitutional provision that excludes religion from participation in a government program, but that would affirmatively say, if, in effect, you fund public education, which we regard as secular and hostile to religion, you must constitutionally fund alternative choices for parents.

What that argument is about, you hear it, it is, as somebody said earlier this morning, not yet the first round of litigation, post-Zelman, but it is out there. If you read Zelman carefully, it is very unclear, from Chief Justice Rehnquist’s opinion, whether he thinks the relevant choice is between public and private education or between types of private education.

There are pieces of the opinion that would sustain a voucher program, simply on the basis of the choice between public education and religious education. There are other places – this is vintage Rehnquist, he never quite tells you what he means – that would require not only public choices, but other non-sectarian private choices. That’s not an insignificant difference, both for the point I’ve just made, and because it makes a real difference in places like Vermont and Maine.

The voucher programs in places like Vermont and Maine are based on the fact that many of the towns are too small to have their own high school. So what they do, instead of going to the expense of providing a public high school, is they give everybody a voucher. Well, if the nearest high school, maybe the only high school, in commuting distance is Catholic, you may theoretically have a choice.

You can go 75 or 100 miles a day, to some town that is big enough to have a public high, but in practical terms, there won’t be much of a choice. Well, depending on which theory of vouchers you take, that’s going to be constitutional or not, and the choices are either going to be real or not real, based on those details.

Another point that I’m praying, if I may use that phrase in this context, that nobody would raise, and fortunately did not – so now I have something to say – is that we have assumed all morning that the anti-Catholic origins of the Blaine amendments is reducible to sheer bigotry. And since I don’t have a dog in the fight between Catholics and Protestants, I can say this. That’s an anachronism.

What people have in their head is the Catholic Church post Vatican II, which has adopted, accepted, and promulgated notions of religious liberty. The Catholic Church of the 19th century was actively engaged in Europe in suppressing every republican revolt and every effort at liberalization of the old autocratic regimes. And if you read papal encyclicals, as I have spent much of the last week redoing, Pope Gregory the 13th regards separation of church and state, or religious liberty, as lunacy, variously translated.

The notion of separation of church and state ends up, in Pope Pius the Ninth’s encyclical about modernist eras, and ends up on the famous Syllabus of Errors, as a harmful doctrine, which needs to be suppressed, along with such ideas as people ought to make their own choices about religion, that all religions are entitled to equal protection from the state, that a tax on the Catholic Church should not be punished, and the like.

And if you read some of the Protestant rejoinders to this, they’re cognizant of the Syllabus. It appeared in The New York Times within a few months of the time that it was promulgated. And remember, they didn’t have C-SPAN sitting there in Baghdad or the Vatican at the time, so a couple of months is not bad. They were entirely cognizant of what the Catholic Church was teaching.

And just a book I picked at random – a Protestant pastor has a book called Romanism in the Republic, which I picked up, by the way, in a Catholic history of the period. In the encyclical and Syllabus of 1864, the Pope denounces some of the dearest rights of man because they were opposed to Romish absolutism.

To those of you who are not familiar with the terms that he describes in the encyclical, do not forget that these definitions of the pope, by his own definition, and the definition of the Romish Council – this is the time of the declaration of papal infallibility – have the form of infallible authority and dogma, to dispute them, to make a Roman Catholic a heretic, and to put them under the ban of excommunication.

And then, he goes on to list a series of liberties that Americans, in the 19th century, for purely secular reasons, held dear. So when we say that – and we take it for granted, and there clearly was lots of bigotry in 19th century Protestant America – when we assume that the Blaine amendments are simply anti-Catholic, that seems to me to be a gross oversimplification, at least in terms of the sort of discrimination that gets you to constitutional invalidity.

A current example, I think, illustrates the point. If Nigeria were to now adopt a provision in its constitution which prohibited the imposition of religious law on unwilling people, there’s absolutely no question at all what that would be aimed at. That would be aimed at those states in Nigeria that impose sharia law and, for instance, stone adulterers. There would be no question at all that that would be the purpose.

It would be anti-Islamic, in a particular sense. If that were to come before our Supreme Court under Underwood, would it, therefore, be unconstitutional? I suggest to you the answer to that question has to be no. The separation of church and state, as Steve Green pointed out earlier, is a doctrine that’s at least sustainable in its own right. You don’t have to agree with it, but it’s at least sustainable in its own right.

And the fact that political opponents use the excesses of a particular religion to illustrate the need for that doctrine seems to me hardly to be the sort of bigotry that motivates the decision in Underwood. I don’t want to go into the intricacies of unconditional conditions. I’m always amazed at how well law professors think that this makes sense.

Those of us who are practicing lawyers know perfectly well the Supreme Court hasn’t got a clue as to what’s an unconstitutional condition and what is not. The one rule I can tell you is that if you impose it on doctors, it’s constitutional; if you impose it on lawyers, it’s unconstitutional. That much we can say from the cases. Beyond that, I think there is great confusion. I don’t know how anybody can say with any certainty, one way or the other, what the Supreme Court would do with unconstitutional conditions.

I’ve already indicated that I don’t think the bias argument is any good – aside from all the arguments that Steve Green made earlier. I think it’s much more complicated, because the Catholic Church was, in fact, a threat to religious liberty in the 19th century, or at least Protestants had every reason to think so.

So I think it’s less clear what will happen with those things on examination. And Free Exercise Clause law may be, but that turns around American history in ways that I’m not sure even the current Supreme Court can get away with. That is, until very recently, the debates about church-state were, can we fund it, or are we prohibited from funding it?

And if the arguments of the anti-Blaine forces prevail, the argument turns 180 degrees, and it’s – are we forbidden to fund it, or must we fund it? And that’s just a very hard leap to make. I point out here there’s hypocrisy on both sides – somebody made this point already this morning quickly – that conservatives are, all of the sudden, anti-federalists, and liberals are, all of the sudden, federalists, and liberals are now urging the federal courts to layoff, and conservatives are egging on the federal courts.

But I guess that sort of washes out for everybody. Finally, to me, this is the most important and compelling point. I think that religious advocates of – let me say that I have no use, frankly, for the secular advocates of the market. I think the denigration of government is a huge mistake. I think it sometimes borders on the immoral, even though we were told this morning that people shouldn’t hold strong views about good and evil.

The denigration of government for market forces, it seems to me, comes very close. But from a religious point of view, I guess there’s a judgment to be made here, whether religious forces or secular forces are ultimately going to prove more powerful in our society. As you look around the Western world, at any rate, it’s a rout, and religious forces have lost badly. I think it’s irretrievably lost.

If you look around the world at the things we take for granted in the United States that can be said and taught in religious schools, and churches, and the like, are banned as hate speech. Canada has, for instance, required a Catholic school to admit a gay couple to its prom. It’s fined a minister for printing the verses of Leviticus that call homosexuality an abomination.

Europe is just a total disaster. Melissa was telling me about having a conversation with a reporter from France, who couldn’t understand how we could have separation of church and state and allow the president to mention God. This is the world around us. Americans tend to think that they’re immune from these things.

Well, if that’s what’s coming here, the notion of equality as the centerpiece of Establishment Clause thinking is inevitably going to lead to equality thinking in Free Exercise Clause. It’s already happened. In fact, if you look at the justices who are the strongest advocates of equal treatment in the Establishment Clause, they are by and large the same, with the exception of Justice Stevens, who just hates organized religion, they’re exactly parallel to those justices who’ve eliminated Free Exercise Clause protection.

And the opposite is true, that those justices who’ve had the most vigorous conception of the Establishment Clause have also had the most vigorous conception of the Free Exercise Clause. I don’t think it is possible, theoretically, to distinguish between Free Exercise and Establishment. I don’t think it is possible in the real world. I think those will inevitably go hand in hand.

Either you’re going to be equal or you’re not equal. You can’t be a little bit pregnant; you can’t be a little bit equal. And as far as I’m concerned, it’s true that I’m not on welfare, and we have struggled, we have put five kids through parochial schools, I think religion has much more to lose, given what I see as the trends in Western society that I think are irreversible, at least in the next half century.

I don’t think that’s a hard question at all. And I think that religious forces ought to be concentrating as much as they can in protecting their right to be different rather than insisting on the right to be treated the same. There’s a wonderful folk saying about be careful what you wish for, you may get it. And I think that’s already happening.

And finally, I must say, one of the nice things about being with law professors is the fact that there is a Davie v. Locke, which Dave finally mentioned, at the end of five hours of discussion, is already in the Supreme Court; a petition for cert has been filed. The opponent lawyers are good; they’ve gotten an extension already on the time to respond.

But we may know by the end of June whether the Supreme Court is going to take this and put it to bed. So I must say, notice that it’s two practicing lawyers that talk about this little detail about a case that’s already in the Supreme Court, and the law professors only talk about the theory. But there you have it.

MR. LEDERMAN: I’d be curious, during the discussion, to see what the State of Washington is articulating as the state interest in denying the use of the funds.

Krista Kafer was just telling me that she was recently on Hardball with Chris Matthews. And I don’t want to disappoint her, but I’m afraid this is probably not going to be the same sort of thing. But I’ll try to be Chris Matthews if someone else will be on the other split screen. We’ll have to have quick and sharp exchanges.

But that’s not been the Pew Forum tradition. And Krista has also recently left the government for greener pastures, perhaps, and is doing a lot of work on education related issues, having largely drafted, and defended, and explained the No Child Left Behind Act, which first included a voucher component, which was politically unpalatable, and thus, was taken out.

I’d be curious to know whether that’s on the horizon as a possible amendment in the federal system. Anyway, without further ado, Krista Kafer.

KRISTA KAFER: Wow, it sure is great to be here. Thank you so much for inviting me. I turned to Holly right before the panel, and I said, “What can a generalist add to a panel of really highly esteemed experts?” It is kind of difficult, considering the wealth of knowledge, experience, and thoughtfulness that we have seen in the last couple of panels, of what I personally can add to that as a generalist.

And I think one thing I can add is context. We have looked at school choice through the lens of the Blaine amendment, and I’d like us to step back and look at the school choice movement and how Blaine amendments have fit into that, how First Amendment issues have fit into that. We’ve heard a number of names mentioned, a number of events, cases.

So I’d like to walk you through a timeline of what these look like in the school choice movement and where we’re headed. As I have looked over this, I am in the process of writing a book on the subject of school choice in the states, what’s happened in the 50 states. I also published a paper two days ago called “Progress on School Choice in the States.” It’s a 20-page paper that looks at litigation, looks at history, looks at research, is a snapshot for all of you that have an enduring interest in school choice. The book will be something like it.

When I talk about school choice, I’m looking at a broader movement. I’m looking at vouchers and tax credits, but really, I’m looking at anything that enables a parent to enroll a child in a school other than their assigned neighborhood school. So this could be public school choice within the district. It could be public school choice outside of the district, often known as open enrollment laws. It could be charter schools. It could be home schooling. It could be virtual schooling. It could be vouchers or tuition programs, as we see in Vermont and Maine. It could be education contracting, which is what Houston calls its very small voucher program. It could be tax credits, which are provided to the parents or provided to donors, who then give to scholarship organizations, and out of those scholarship organizations come a scholarship or a voucher for poor parents.

We see a diversity of ways to enable parents to exercise school choice. So when I’m talking about school choice, I’m talking about this full movement. Now, there have been litigation efforts having to do with charter schools and home schooling, and I will not, obviously, be focusing on those. But that definitely has occurred.

Just to give you a sense of where I stand, and where the Heritage Foundation stands – as their prime analyst on it, I guess it really is kind of where I stand on it – but I went to public schools – don’t mind the person behind the curtain – I went to public schools, kindergarten all through higher education, and will be the first to defend my public high school, Columbine High School, of Littleton, Colorado, as being a fine institution, despite the tragedy that it has, only a few years ago, endured.

I will say this, that 15 years ago, when I attended school there, I flourished. I actually had some classes that were better than my college classes. My AP classes were phenomenal. But I also knew people who were falling through the cracks, people who were not flourishing, even in this good school. And I think they would have been better served in a private institution or another public school, perhaps a charter school.

And that is really what choice is about. We keep using the phrase, “I don’t have a dog in that fight.” I really don’t care where people go to school. They can take a public option, private option, home schooling. I think that parents are, for the most part, competent to make those decisions.

The question that was raised earlier about Muslim schools is an important one that every school choice reformer needs to ask themselves. I am comfortable with Catholic schools and Protestant schools, or secular private schools. But am I comfortable with Buddhist schools, Mormon schools, Muslim schools? How comfortable? Every school reformer needs to ask themselves that question, because there is, in fact, perhaps, a small bit of hypocrisy if the answer to that question is no.

I am comfortable with parents choosing a Muslim school, because I believe that most Muslim parents will choose a good school for their child. There are going to be people who choose a fringe school, whether it be a Wiccan school or a racist school, or a hardcore Muslim school. There are going to be parents who make poor decisions. We see parents making poor decisions with public schools as well.

I’ve heard of people switching schools not for academic reasons, but because they had a better sports team. You know, you do occasionally hear of people switching schools to be part of a school that is ethnically similar to them. I would say those are poor choices, but they are in the minority.

And I think we can appreciate the saying that “Hard cases make for bad law.” We cannot base our programs on the fact that some people will make poor decisions. We can, instead, look at those poor decisions on a case-by-case basis, and decide then what we should do about them.

I will start my timeline back in the early 1800s. We see not only the rise of nativism with the Know-Nothing Party in the 1840s and 1850s, we also see at this time the formation of the common school, particularly in the Northeast. At times, these two movements seem to be intertwined. I look here at a quote by Horace Mann, who’s sort of the father of public schooling, and in 1848 he said, “Sectarian books and sectarian institutions, if their encroachment were not resisted, would prove the overthrow of the schools…Our system earnestly inculcates all Christian morals. It founds its morals on the basis of religion. It welcomes the religion of the Bible, and in receiving the Bible, it allows it to do what it is allowed to do in no other system: to speak for itself.” So as you can see, there is an intertwining of the common school with this desire to Americanize the unwashed masses with the nativism.

I thought this was an interesting quote. The Massachusetts Teacher, it’s a publication, 1851, says that all children of immigrants, quote, “must be taught as our own children are taught. We say must be because in many cases, this can only be accomplished by coercion. The children must be gathered up and forced into school. And those who resist or impede this plan, whether parents or priests, must be held accountable and punished.”

Which isn’t to say that the growth of the common school is – I mean, there’s an intertwining there – but out of the common school, we see some truly wonderful institutions, as I have complimented on my own institution of high school, and other schools around this country that are really producing great citizens.

Back to the timeline. In 1869, Vermont passes a law, which is the forerunner of today’s town tuitioning program. Just a few years later, in 1874, 1873, Maine starts its own tuitioning program. These are two of the oldest – no, they are the oldest voucher programs in the country. And up until 20 or 30 years ago, in the case of one, and up until more recently, the case of the other, public schools, or citizens were able to choose religious schools in addition to secular schools.

This was kind of interesting. In 1869, John Stuart Mill concluded that in light of the controversies of what should be taught and how it should be taught, he believed that states should, quote, “leave to parents to obtain the education of where and how they please and to content itself with helping to buy the school fees of the poor classes of children and defraying the entire school expenses of those who have no one else for them.”

It sounds suspiciously like vouchers, articulated back in 1869. And it is possible that he was looking at some of the divisiveness of the religious issues in his day. But when I read his full statement, I couldn’t help but think of the divisive issues which we encounter in today’s schools. It isn’t just a question of moral issues, things like sex education, evolution, prayer in school. There are other divisive issues, which have nothing to do with education.

You have the sort of progressive versus traditional learning styles debate that has occupied our country, in one way or another, for 100 years. We’ve got whole language versus phonics. We’ve got the new math versus the old math. We have just different kinds of teaching methods that some people hate and some people love.

I’m of the opinion that, let parents choose what they would like for their children, rather than forcing upon them my chosen method of teaching. Many of you may have read or heard from Alfie Cohn, who’s sort of a spokesman for progressive education. I would never force his children to endure a traditional classroom. If anything, school choice goes beyond these religious issues to other areas of preference. People expect and demand different things from schools. And I think that in many cases, it is less divisive to enable them to make that decision.

In 1875, we’ve got Blaine proposing his amendment. We’ve had much discussion on that. I’ll jump up a few years to 1925, Pierce v. Society of Sisters, in which the court upholds the parents’ right to send their children to private schools. In Oregon, they had decided that children should not be able to go to private schools, that, in fact, all should have to go to the state school. This was, obviously, struck down by the court, and they relied upon an earlier decision, Meyer v. Nebraska, that also supports the rights of parents to direct their schooling.

I think that the court’s opinion describing that, in the majority opinion from Justice McReynolds, is an interesting statement. “Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of their children under their control…The child is not a mere creature of the state. Those who nourish him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

I’ll fast-forward a few more years. In 1947, we have the Everson decision, as it was mentioned several times today – is a rather mixed decision upholding the policy of allowing bus reimbursement for parents whose children attend private school, but also some precedents within that law that have become difficult for those who have supported state aid of parents or of private institutions.

In 1954, we have Brown v. the Board of Education. And what’s interesting, if you do a LexisNexis search, or West Law, and take a look at some of the articles that came out, or go to some of the different Web sites and look at some of their press releases, you’ll see many of the reformers, when they talk about Zelman, right after the Zelman decision, really taking the Brown decision and saying that Zelman had completed it.

What they’re talking about is the fact that there are so many African-American kids in our inner cities that are deprived of a good education in the public schools. I live about 12 blocks from the Capitol, right on the edge of, sometimes I call it “hood lite,” or the “frontier area.” One block over, it becomes a rather dangerous neighborhood.

These schools, if you were to look at their test scores on the National Assessment of Educational Progress, which is kind of like a national test, seven percent of the students are proficient – seven. Over half of the students are below the basic level in every subject, reading, math, science, history. Only about 56 percent of the students will graduate.

Many of these students – I don’t know which is more tragic, those that don’t graduate or those that graduate with the illusion that they are prepared for college, have As and Bs, were on the honor roll, show up for their first year of college and are simply unable to do the work. It really is tragic. And I have been befriended by a couple of fourth grade girls, and it breaks my heart, frankly, when they bring me their report cards and they’ve got As and Bs, but I see their standardized test scores, and they are scoring below the basic level on their scoring – or, actually, it’s not a criterion, it’s another kind of test, which shows that they are scoring at the 40th percentile, which is 10 percentile points below the average.

And they don’t tell me, “I want to grow up and be a janitor. I want to grow up and be on welfare like my mom.” They don’t say that. Not that there’s anything wrong with being a janitor, but they really think they’re going to become lawyers. They tell me that. Lawyers are actually one of the things they want to do. And without a pretty serious intervention, they won’t become lawyers, and I know this.

So anyway, I seriously digressed. So we go back, shortly after Brown v. the Board of Education, about 10 years later, we’ve got Minnesota passing a law giving tax deductions. It will be the first of its kind to give tax deductions to parents using private schools. Also in 1955, economist Milton Friedman proposes vouchers in an article.

In 1965, we have the Elementary and Secondary Education Act, which passes. It gives compensatory education or extra funds to schools that serve poor children. These Title One funds will become important later on.

In 1970, we have a federal subsidized voucher program in Alumrock, California, that becomes very limited and sort of fizzles out.

In 1971, the Lemon decision strikes down a program giving salary supplements to private school teachers who teach secular subjects. Out of that, we get the Lemon Test, that in order for a program to be constitutional, it must have a secular purpose, a primary effect that does not advance religion and does not produce an excessive entanglement between government and religion.

In 1973, Nyquist strikes down direct subsidies to private schools.

In 1978, we’ve got a couple of popular referenda proposed for vouchers in Michigan and Maryland. Both go down. They will be the first of about 10 that go down. And I would say that it’s specifically because the movement was not ripe for such things to pass by popular referendum. And I don’t think times are quite ripe for them now, but they have been kind of an ongoing effort.

In 1983, the Mueller decision upholds the Minnesota tax deduction, saying that the benefit to the school was not a direct benefit.

In 1983, also the same year, we get The Nation at Risk, a report that exposes some of the deficiencies in the public school system.

In 1986, the Witters decision, deciding that a blind student using a state scholarship to attend a religious school is, in fact, okay, and that the state cannot prevent that. The case emphasizes neutrality, shows that there are both secular and religious options, and that parents and children choose. This is one of the decisions that Chief Justice Rehnquist will look to in the Zelman decision.

In 1987, Iowa passes a law giving a tax credit – tax credit and deductions – for education. This law has not yet been challenged. It is fairly small in the scheme of things and probably will never be challenged.

Also in the late ’80s, we start to see open enrollment laws, allowing students to transfer from one public school to another. What’s interesting, again, if you go back and look at articles, you’ll see people saying the same things about those programs that they now say about vouchers. You’ll find the union representatives saying, “Oh, this will drain one school of money, and we’ll get Balkanization, and it will be horrible. It will be the death of public schools.” And you can actually (inaudible) that quote out and put it really anywhere else, whether it be charter schools, vouchers, tax credits. It’s the same song sheet that they’re reading from, even now.

In 1990, Wisconsin’s Milwaukee Parental Choice Program is established. It’s fairly small at that point. Five years later, it would be enlarged to become the program that it is now today.

In 1993, the Zobrest decision allows a deaf child with a publicly paid interpreter in a private school.

In 1995, the Wisconsin program expands, and the Cleveland program is established.

In 1997, Arizona establishes a tax credit plan, the first of the nation, in that it allows people, anybody really, to get a tax credit for a donation to a charitable scholarship organization. It will become a model that is then replicated by several other states. And, in fact, you could go online and look at some federal legislation right now that is replicating that program. It is really held up as a model.

Also in 1997, Augustini overturns Aguilar to allow public Title One teachers in private schools. Also in 1997, Minnesota expands their tax credit program. Also that year, Congress passes a D.C. voucher bill, which is then vetoed by President Clinton.

All during this time, the late ’80s, but then, actually, in the ’90s, we see the rise of charter schools. We now have 39 states and the District of Columbia with a charter school law. These are privately managed public schools. We also see the home schooling movement expanding to, possibly even 2 million children. It has expanded pretty substantially.

In 1998, in Jackson v. Benton the Wisconsin Supreme Court upholds the Milwaukee program in spite of the Blaine Amendment.

In 1999, Florida adopts the A-Plus Program. In this program, schools that fail to meet state benchmarks two out of four years must then allow kids to go to another public school or a private school with a voucher. That is the program that is now under the cloud, or has been under a cloud of litigation, but is on appeal in Florida, and something that I.J. has been instrumental in – hopefully to overturn it and hold up the program.

Also in 1999, in Simmons-Harris v. Gough the Ohio Supreme Court upholds the Cleveland voucher program. This, in the end, of course, does go before the U.S. Supreme Court. They, even then, focused on the independent decisions of parents, a theme that we see in the Rehnquist decision, that this is truly a neutral program with regard to religion, and that it is, in fact, by the private decisions of parents that we actually see a voucher used.

And also in 1999, Cotterman v. Killian, that’s when the Arizona Supreme Court upholds the tax credit. They actually condemn the Blaine Amendment in the majority opinion, calling it a clear manifestation of religious bigotry.

In 1999, Illinois starts its own tax credit program. It will later be upheld against two lawsuits in two separate decisions.

Also in 1999, the McKay Scholarship program in Florida – many of you may not be aware, but there are actually three choice programs in Florida, both a tax credit program that allows people to, I think it’s corporations, to give to private scholarship organizations. We also have a voucher program for disabled children, and then also the A-Plus program. The McKay Scholarship program later expanded in 2001, but it was, in fact, established in 1999.

In 2000, in Bush v. Holmes, the Florida Appeals Court upholds the A-Plus program, and their Florida Supreme Court denies cert. So it ends up going back to the trial court for continuing issues, and we’re seeing a second round of litigation.

I’d hate to interrupt myself, but how much more time do I have? I feel like I could talk forever. I guess a walk through two centuries could take a while. Actually, we are ending up now with Mitchell and then, lastly, with Zelman. I will conclude by saying that there are a number of states that are in the midst of passing legislation.

And, again, if you were to do an article search, you’ll notice that Blaine amendments do come up, and we do see the question of, will this pass state scrutiny? And there’s the I.J. guy saying, “We’re ready to fight,” and also the Teachers’ Union saying, “We’re ready to fight on this as well.” And with that, I apologize for going over and conclude my speech.

Thank you.

(Audio break.)

MR. LEDERMAN: (In progress of introducing Holly Holman) – probably has the most difficult job of anybody in this room, in that she succeeded Melissa at the Baptist Joint Committee as general counsel, something that many of us thought could not be done. But Holly has filled in and picked up right where Melissa left off, and has been one of the most articulate and thoughtful voices in Washington on these issues.

The Baptist Joint Committee has long been a voice of compromise and a somewhat unique voice. And maybe Holly will speak to some of that now.

Holly.

K. HOLLYN HOLLMAN: Thank you to the Pew Forum, and to the law school and the journal for inviting me. This is wonderful. And thank you to all of you who stayed this long, because it’s been a long day and there’s been a lot of ground covered, and I’m just so happy to be here. If you can’t already tell by my accent, coming to North Carolina was not a big stretch for me. Even though I live in D.C. now, it was a pleasure to drive south.

I actually went to college at Wake Forest, down the road, and all my friends at home, down in Mississippi, thought I had gone way up north, going to North Carolina. But I’m very happy to be here and really do appreciate all of your interest. Because it’s impossible now to talk about only things that we haven’t covered, I’m going to stick to my outline, and hope that this will be like a good sermon, where the repetition is looked at as a positive thing, because it helps you remember, as opposed to being a bad thing, sort of redundant.

Generally, I want to give a quick overview of the perspective that I hope to present today, some comments about the Baptist Joint Committee, and comment a little bit on the litigation that’s been talked about in the Blaine amendment context, and then spend most of my time sort of responding to this campaign of rhetoric about the Blaine amendments and what they mean, and what that history’s about, and what it means for us today.

The mission of the Baptist Joint Committee – as Marty said, it’s been around a long time, about 68 years – our mission is to defend and extend religious liberty for all people. We represent a traditional Baptist view that holds church-state separation as a fundamental value, something that protects religion. We believe that the nation’s religious endeavors should remain as they have been traditionally, that is, independent, financially supported, and governed by voluntary adherence.

Church-state separation, we believe, is the best means of protecting religious liberty, in order to protect the practice of religion according to the dictates of conscience and not according to what the government says about religion, or how that should be practiced. I think that that separation we have enjoyed because of our constitutional provisions has resulted in a great deal of freedom and has had a great benefit for religious institutions, benefits for the autonomous nature of how institutions operate, and relative freedom from government interference as well.

In the policy debates about school vouchers and so-called faith-based initiatives, the principle of church-state separation is under attack. I think that this conference is a useful exploration of just one line of attack. The Baptist Joint Committee’s interest in the so-called Blaine amendments is insofar that the litigation and the policy debates about them influence the relationship between church and state.

The Baptist Joint Committee is not directly involved in any Blaine amendment litigation. The litigation, obviously, typically follows successful passage of voucher programs in the states, and so far, there are just a handful, but we’re hearing about the litigation proceeding there.

I agree, as we’ve talked about earlier, that post-Zelman, federal challenges are not so likely for voucher programs, and that the emphasis, of course, will move to the state provisions. The design, I think, of voucher programs continues to be improved, to the extent that they have become really focused on this choice provision. I think Krista did a good job of really articulating what that choice argument is.

To the extent that voucher proposals look a lot like free choice, I think that those who support vouchers will try to get a similar analysis that they got in the Zelman case at the state level, under the state constitutions. And I just think that the success is yet to be seen. I think we’ve heard a little bit about it being mixed at this point.

I want to say just a word about some of the discussion of, during lunchtime today – it was very fascinating how the law professors talked about the different possible, the kind of next line of litigation, and the possible federal challenges to Blaine amendments. I think the boldest theory that I keep hearing is that there is a federal free exercise interest that is going to overcome the Blaine amendments.

It seems to me – and I had the word written, “leap,” and I think that’s the same thing that Marc Stern said – it seems to me a big leap from Zelman, which said that a voucher program that allowed money to go to religious schools was acceptable, did not violate the Establishment Clause. It’s a big leap, then, to say that the Free Exercise Clause demands that government support religious schools.

In this is this theory of equal treatment that we’ve begun the discussion on. I think the doctrine – or theory, or rhetorical tool, whatever you want to call it – of equal treatment, is where this debate about vouchers and indirect funding parallels and – maybe parallels, maybe connects – but somehow, it’s consistent with what’s happening with the charitable choice debate, and what people are saying about direct funding of religion.

So I think it’s important to recognize that this equal treatment idea does have impacts for the direct funding issue, which, as Marty mentioned, is ongoing in Congress, about how religious institutions can receive government funding, under what conditions, and so forth. I would say that the Blaine amendments should be recognized and maintained as barriers to direct funding of religion, and that includes those religious institutions that cannot separate their religious mission, religious activity, from their secular functions.

That is not just a barrier, but this is a safeguard for church-state separation, as I said. That is a value that promotes religious liberty. And I think it’s important that religion is treated differently. It’s treated differently in the constitution, and I think religion, we all know that there’s something different about religion. It’s always interesting to me, when you try and look at these equal treatment arguments, it seems hard to make them fit.

Of course, the Zelman decision did not diminish the ban on direct funding of religion. So we know that the courts will still see that there is something different about religion, and Zelman did not, in any way, say that it could be treated equally in all funding aspects.

So why do we care about church-state separation? It’s because it protects other important values, values that don’t come up when you’re looking at it just from a choice analysis, as we just heard. And those are values of protecting church autonomy, avoiding religious divisiveness, and avoiding endorsement, the appearance of favoritism to certain religious faiths.

The downside of the equal treatment, of course, is that regulations will follow that will hurt religious institutions. And I think that’s evident in the voucher context, but it’s even more so in the direct funding debates about charitable choice, and maybe we’ll have some time to get to that in the Q&A.

So now, I want to go ahead and focus on responding to this sort of rhetoric in current political debates, relating to the Blaine amendments, the argument that these Blaine amendments should be discredited because of the history. As the day has progressed, it seems to me that there has been a growing consensus that the bigotry in the history, that part of the history, is not determinative of the legal issues.

I think that adds some force to what I think we should talk about, which is, what relevance do they have, and what does this mean for the policy debates? In my view, I think many critics of the Blaine amendments have gone too far in their public campaign against the Blaine amendments. Voucher proponents charge that state constitutional provisions banning the use of government funding for parochial schools, quote, “enshrine religious bigotry.”

I know not all of them do this, but I’m out there in these debates, see them on Capitol Hill, and people take them and they run with them. And that label sticks on numerous issues, and so I’m not sure if that’s purposeful, but without looking at that, let’s just look at some of this language.

Following the Zelman decision, there were a lot of editorials that talked about this anti-Catholic bigotry. And among many inflammatory quotes, let me give you the classic, I think a classic from an editorial titled, “The Next Voucher Battleground.” It was in The Wall Street Journal. It says, “Meanwhile, it is worth stressing the spectacle of reform opponents, good liberals all, invoking a century-old relic of religious bigotry in order to keep children shackled to our nation’s worst schools. Their methods evoke the poll taxes and grandfather clauses that were hastily employed by states after Reconstruction to deny blacks suffrage guaranteed them by the U.S. Constitution. What lovely moral company the NAACP and the teachers’ unions now keep.” Well, does the moral company of those who oppose funding religious institutions that do not separate their religious mission and their religious activities from their secular ones include 19th century bigots?

We answered that one earlier today. Yes, they do. But the moral company also includes some of our founders, and I hope also to show today, and as others have mentioned, it also includes the principled people of faith that come from many different religious traditions. But now everybody’s familiar with the context of the kind of rhetoric that I’m talking about.

It was after the Zelman case where voucher proponents declared a campaign to discredit and, eventually, dismantle state constitutional provisions that provided a larger barrier to funding religious institutions than the First Amendment. And they depicted these provisions as remnants of religious bigotry, tainted by the times in which they were passed.

No one disputes that prominent supporters of the so-called Blaine amendments were motivated by anti-Catholic bias. We all agree on that. So while ugly episodes in our country’s history should not be ignored, the relevance of sectarian strikes and nativists campaigns in the mid 19th century, to the current debates about school vouchers, and other important policy debates relating to the relationship between church and state, is highly suspect, I think, for several reasons. I’m going to briefly touch on four reasons.

First, the concept of church-state separation, including the notion that religious institutions should be self-supporting and self-regulating, predates, and in no way is diminished by the anti-Catholic sentiments of some who supported the concept during the 1870s, and during other times. It was Roger Williams, the 17th century founder of Rhode Island, and founder of First Baptist Church in America, who first advocated a, quote, “wall of separation between the garden of the Church and the wilderness of the world.”

The legal provisions that promote church-state separation, which were championed by founders such as James Madison and Thomas Jefferson, have been good for both government and for religion. The sweeping attack on legal impediments to voucher programs, as sullied by anti-Catholic history, promotes a partial and misleading history. And I appreciate the in-depth discussion the historians gave this morning about that history. I think it was very informative. And as we all agreed about the very negative, sad history, I was also glad to hear people say, as a matter of historical record, that was not just it, and so, there is something to think about here.

Let me skip through some of this, because we went over it a lot. But I’d say instead of saying that church-state separation is just part of this bigoted history, it was an amalgam of many factors, including the vision of the founders and the implementation of that in the founders’ visions, in the states, gradually, over the next century. To reduce those provisions to anti-Catholicism or anti-immigration, I think, is to limit the historical picture to one aspect that, of course, is most helpful to a particular policy agenda, one that has a lot of different factors to it, and it’s one that is at odds with other important values.

Secondly, many Baptists and other people of faith, as you heard from Marc Stern, cling to these laws as a best way – these laws that have the concept of church-state separation in them – as the best way to promote religious liberty, which has allowed so many religious communities, diverse religious communities, to flourish in America. Motivated by deeply held theological concerns, these share a sincere conviction that tax dollars should not be used to finance the teaching of any religion, including their own, because we believe that autonomy from the state is good for all religions, not because we oppose any particular religion.

This principled stance, I believe, is the enemy of discrimination, not the product of it. It is simply not bigotry, pursuing a prejudiced view, to oppose any and all taxpayer funding of religious education. Those who persistently assert that bigotry is somehow central to this issue and this debate, I think, threaten to inflame passions and undermine meaningful debate about important policy concerns.

Third, it is well-known that politics makes strange bedfellows. I bet everyone here has advocated for some position, at a time, and looked to your left or right, someone who’s also with you, and think, “I wish he or she wasn’t on my side,” or, “I don’t quite see it that way.” And I think that’s just a reality.

I think there’s something wrong with trying to tar an idea because of some of those who are associated with it. If laws and institutions are to be evaluated in the present, based upon those who supported them in the past, of course, many targets could be next. There’s a fundamental problem with trying to discredit important, useful laws and institutions by recounting the negative facts associated with their establishment.

Now, I’m talking about the rhetoric in the debate here. I’m not getting into the whole equal protection analysis. But the emphasis on that, the anti-Catholic history, as a reason to do away with the Blaine amendments raises other questions, like should we dismantle public schools entirely, because some early proponents of universal public education were anti-Catholic?

Should we repeal Title Seven’s ban on sex discrimination, because it was originally proposed as a poison pill, proposed by segregationists seeking to defeat civil rights legislation? Some of you, I’m sure, have heard that story about the representative from Virginia who added sex as a protected category to Title Seven in order to defeat it.

While we’re at it, maybe we should close any private schools, whatever their racial composition today, that were initially established as segregation academies when public schools began to integrate. No, I don’t think these are the answers. The principal test of an institution’s viability should be its current contribution to society, not its historical origins.

And I think church-state separation has long served our nation well, and continues to do so, and I would argue is becoming even more important as our nation becomes more and more religiously diverse.

Finally, I think it’s ironic that some voucher proponents attack the Blaine amendments as remnants of bigotry, when the primary effect of church-state separation, over time, has been to reduce sectarian strife. Unable to see the forest for the trees, we’re seeing some that emphasize an anomalous period of religious conflict that ended, in part, thanks to our founding constitutional principles.

Yet, it requires little imagination to envision the kind of strife that will result when government chooses which religions to fund. As Justices Breyer and Stevens noted, history is replete with dismal examples, most of them beyond our borders. After all, what is more likely to produce animus toward and among religious institutions than to make the government a collection agency for particular religious institutions?

If anything, I think that voucher proposals threaten to spark renewed religious dissention, not just voucher proposals, but, of course, these other kind of funding proposals that we see.

So while the emphasis on little known historical facts 120 years ago may be of great interest, it may be a great educational endeavor, and it may be some kind of strategy, given the great debate that we’re in about the proper relationship between church and state, I believe that some of the rhetoric threatens to mislead Americans about the historical origins and the contemporary importance of church-state separation, an ideal that I believe promises religious liberty for all of us.

More on school vouchers