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August 8, 2005

Should a Student Who Wants a Theology Degree Be Eligible for a State Scholarship? YES

by Becket Fund for Religious Liberty and the Catholic League

The Supreme Court is presently considering a case, Locke V. Davey, that raises questions about the history of American bigotry toward Catholics. Joshua Davey, a student in Washington State, sued when he was denied a scholarship to fund his theology degree. Washington denied the scholarship on the grounds that the state constitution forbids the mixing of church and state. When the case went to the ninth circuit court of appeals, the state lost.

Like dozens of other states, Washington's constitution includes a provision required by Congress as the price of admission to the union that forbids the use of public funds for sectarian purposes. The provision was modeled after an amendment to the Constitution sponsored by Senator James G. Blaine, a Republican candidate for president in the late nineteenth century.

Below is an excerpt from the brief filed in the case on behalf of Davey by historians and others associated with the Becket Fund for Religious Liberty and the Catholic League. Click here for the brief filed by Washington State.

The Washington State law at issue in this case disqualifies a student from an otherwise available government benefit, only because the student would use the benefit for a religious purpose. That is the core constitutional offense identified by the court below, and this Court may affirm on that basis alone.

But laws that single out the religious generally – or those of a particular religion – for exclusion from government educational benefits are widespread in this country and share a common and pernicious heritage. Though this tradition of religious discrimination is unfortunately long-standing, it does not originate with James Madison, Thomas Jefferson, or any other framers of the federal constitution. Instead, it emerged with force about a half-century later as part of a broader cultural movement reacting against a growing religious minority, whose controversial beliefs directly threatened the dominant religious ideology of the day. American nativism succeeded not only in backing its hostility to Catholic immigrants (and especially their schools) with the force of law, but in cloaking that hostility with the rhetoric of religious freedom and the authority of the founders. See generally PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (Harvard 2002).

This perversion of the great American tradition of religious freedom must end now. This case presents the Court with the opportunity to expose it and condemn it, once and for all – to tear out, root and branch, the state constitutional provisions that have enforced religious discrimination in the funding of education for well over a century.

Two amicus curiae briefs in support of Petitioners represent what should be the last gasps of this dying tradition. The first asks the Court to cast aside the historical conclusions of a majority of its sitting members – and the broad consensus of historians and legal scholars – regarding the nativist purpose of the federal Blaine Amendment, and its state forerunners and progeny, including the Washington Blaine Amendment. The second brief freely acknowledges that hostility to certain Catholic beliefs animated the Blaine Amendments but – astonishingly – asks this Court to legitimize that hostility. As set forth below, both arguments are untenable and should be rejected. ...

The recent historical conclusions of this Court merely summarize a long-established but growing historical record documenting the pervasive role of nativism in debates over the “School Question” in the United States. As set forth more fully below, the “common schools” were founded in substantial part to promote the teaching of – and to entrench the dominant position of – the “common religion” of “nonsectarian” Protestantism. When Catholics and other religious minorities threatened that dominance by growing in numbers and resisting religious assimilation, the result was a nativist movement that urged the passage of laws – including the federal Blaine Amendment and similar state laws that targeted “sectarian” schools for special disadvantage – to enforce the movement’s hostility to these religious newcomers. Washington State’s constitutional exclusion of “sectarian” schools from government educational funding is a classic example.

In the Northeastern States, the birthplace of the “common school,” there was an ongoing religious debate in the 19th Century between the Unitarian and Trinitarian divisions of the Congregational faith. See, e.g., Hale v. Everett, 53 N.H. 9, 111 (1868) (“the great mass of our people . . . were Congregationalists . . . . Such was their Christianity and their Protestantism, as was that of most of the New England states”). See also The Dublin Case, 38 N.H. 459 (1859) (describing history of the Congregational Church and conflicts between the Unitarians and Trinitarian/Orthodox in New England). A desire to make peace between these factions, together with the emerging principle of universal education, led to the creation of “nonsectarian common schools,” first in Massachusetts and then elsewhere.
But “nonsectarian” in this sense did not mean nonreligious. The term referred to schools that taught religious doctrine acceptable initially to all Congregationalists, and, later, to most Protestants.4 When Horace Mann developed his system of common, nonsectarian schools, the conflict he addressed was that between Trinitarian and Unitarian Congregationalists.5 E.I.F. WILLIAMS, HORACE MANN: EDUCATIONAL STATESMAN 266 (1937); see also R. MICHAELSEN, PIETY IN THE PUBLIC SCHOOL 69 (1970) (“Horace Mann scorned sectarianism. By that he meant chiefly the sectarianism of the evangelical Protestant denominations.”).

Between 1830 and 1870, the common-school movement coincided with a surge in Irish, German, and other European Catholic and Jewish immigrants, and a corresponding backlash – one that lasted well into the 20th Century – against those immigrants and their religions. This backlash formed the basis of organized nativist movements that thrived on Protestant fears of the immigrants’ cultures and faiths, and that expressed their hostility in law, including the Blaine Amendments.
One of the earliest and most prominent nativist groups was the Know-Nothing party, which “included in its platform daily Bible reading in the schools.” Lemon v. Kurtzman, 403 U.S. 602,629 (1971) (citation omitted). Abraham Lincoln wrote of that party:

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....

This was not a fringe movement. In Massachusetts, the Know-Nothing party swept the elections of 1854, gaining the governorship, the entire congressional delegation, all forty seats in the Senate, and all but 3 of the 379 members of the House of Representatives. JOHN R. MULKERN, THE KNOW-NOTHING PARTY IN MASSACHUSETTS 76 (1990). Armed with this overwhelming mandate, they turned quickly to what Governor Henry J. Gardner called the mission to “Americanize America.” Id. at 94. The Know-Nothings required the reading of the King James Bible in all “common” schools; they proposed constitutional amendments (which passed both houses of the legislature) that “would have deprived Roman Catholics of their right to hold public office and restricted office and the suffrage to male citizens who had resided in the country for no less than twenty-one years”; they dismissed Irish state-government workers; and they banned foreign-language instruction in the public schools. Id. at 102. The official bigotry is perhaps best—and comically—illustrated by the removal of a Latin inscription above the House Speaker’s desk, and the establishment by the legislature of a “Joint Special Committee on the Inspection of Nunneries and Convents.” Id. at 102-103. This Committee was charged with liberating women thought to be captive in convents and stamping out other “acts of villainy, injustice, and wrong . . . perpetrated with impunity within the walls of said institutions.” Id. at 103.

Of particular interest here is the fact that the Know-Nothings succeeded in adding an amendment to the Massachusetts Constitution which had been proposed and narrowly rejected by the people one year before: “[M]oneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the state for the support of common schools . . . shall never be appropriated to any religious sect for the maintenance exclusively of its own schools.” MASS. CONST. amend. art. XVIII (superseded by MASS. CONST. amend. art. XLVI). See MULKERN, at 54-56, 79, 105-106. The amendment’s proponents were open about their motives. See, e.g., OFFICIAL REPORT OF THE DEBATES AND PROCEEDINGS IN THE STATE CONVENTION ASSEMBLED MAY 4, 1853 TO REVISE AND AMEND THE CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS, Vol. II, at 630 (“[I]f gentlemen say that the resolution has a strong leaning towards the Catholics, and is intended to have special reference to them, I am not disposed to deny that it admits of such interpretation.”) (Mr. Lothrop).

Nor were nativist sentiments and outbursts confined to Massachusetts. The understanding of “nonsectarianism” as “lowest common denominator” Protestantism also led, for example, to a telling battle in Cincinnati between the “common religionists” and a group of Catholics, Jews, and freethinkers that opposed Protestant devotional Bible reading. See Board of Educ. v. Minor, 23 Ohio St. 211 (1872). Protestant opposition to the removal of “their” Bible from the public schools was fierce and virulently anti-Catholic. See MICHAELSEN, supra, at 118 (“[T]he Dutch Reformed Christian Intelligencer denounced the Cincinnati board’s action as a move to ‘hand the public schools over to Pope, Pagan, and Satan.’”).

Resistance to religious assimilation through the “common schools” gave rise to a similarly hostile reaction elsewhere as well, including deadly riots in Philadelphia, where nativist mobs burned Catholics’ homes, churches and seminaries. JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM 40 (Norton 2003); MARTIN E. MARTY, PILGRIMS IN THEIR OWN LAND: 500 YEARS OF RELIGION IN AMERICA 275-76 (Penguin 1985).

Soon enough, the movement to exclude Catholics from educational funding using the legal term “sectarian” appeared on the national stage in the form of the federal “Blaine Amendment.” Blaine Amendments take their name from Representative James G. Blaine, who in 1875, introduced in the U.S. House of Representatives a proposed constitutional amendment that would have barred states from giving school funds to “sectarian” schools.6 Although the Blaine language narrowly failed as a federal constitutional amendment,7 it had gained enough support that Congress thereafter required new states – including Washington State – to adopt similar language in their state constitutions as a condition of admittance to the Union.8 Other states voluntarily adopted constitutional amendments containing similar language as part of the same movement. See HAMBURGER, at 335 (“Nativist Protestants also failed to obtain a federal constitutional amendment but, because of the strength of anti-Catholic feeling, managed to secure local versions of the Blaine amendment in the vast majority of the states.”); VITERITTI, at 153. See also Stephen K. Green, The Blaine Amendment Reconsidered, 36 AM. J. LEGAL HIST. 38, 43 (1992) (by 1876 fourteen states had enacted legislation prohibiting the use of public school funds for religious schools; by 1890 twenty-nine states had adopted constitutional requirements along the same lines).

Many prominent people threw their weight behind the effort. Calling for an end to all funding for “sectarian” schools in 1875, President Grant referred to the Catholic Church as a source of “superstition, ambition and ignorance.” President Ulysses S. Grant, Address to the Army of Tennessee at Des Moines, Iowa (quoted in Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L.J. 43, 51 (1997)). See MCGREEVY, at 91-92 (discussing importance of Grant’s speech launching federal Blaine Amendment); VITERITTI, at 152-53 (same).

Institutions were formed to fight Catholic interference with the Protestant public school system. See, e.g., Derry Council, No. 40, Junior Order United American Mechanics v. State Council of Penn., 47 A. 208, 209 (Pa. 1900) (among purposes of the Junior Order of United American Mechanics were “to maintain the public-school system of the United States, and to prevent sectarian interference therewith; to uphold the reading of the Holy Bible therein”). A succession of anti-Catholic organizations continued efforts to oppose Catholic education and influence using the various tools of the state legislature, Congress, and the judiciary. In the 1890s, the “American Protective Association” was politically successful in inciting anti-Catholic hatred....