Article Jun 27, 2017

How 19th century anti-Catholic bias affects 21st century religious liberty

The Supreme Court ruled yesterday that the state of Missouri violated the Free Exercise Clause when it excluded a church from a general program to purchase recycled tires and resurface its playground because it was a religious institution.

While that case, Trinity Lutheran Church of Columbia v. Comer, began only two years old, it’s based on an attempt to curb religious liberty that began 142 years ago.

When James Blaine introduced his ill-fated constitutional amendment in 1875, he probably never would have imagined the unintended consequences it would have almost a century and a half later. Blaine wanted to prohibit the use of state funds at “sectarian” schools (a code word at the time for Catholic parochial schools) in order to inhibit immigration. Since the public schools instilled a Protestant Christian view upon its students, public education was viewed as a way to stem the tide of Catholic influence.

While the federal amendment passed by a large majority in the House (180-7), it failed by a tiny margin in the Senate (4 votes). Supporters of the amendment, however, pressed the issue at the state level, often making it a prerequisite for statehood. The measure finally found its way into 37 state constitutions, including in Missouri.

In this brief video Notre Dame Law professor Richard Garnett explains how these Blaine Amendments affect religious liberty today.

Such an amendment is at the center of the Trinity Lutheran case, which involved a religious preschool that was rejected from a state program that provides reimbursement grants to purchase rubberized surface material (tire scraps) for children’s playgrounds. The Scrap Tire Grant Program is otherwise neutrally available to a variety of nonprofits and Trinity’s application was ranked fifth out of 44 applications (in total, 14 grants were awarded). But the preschool was ultimately denied the grant for its playground solely because the playground belongs to a religious organization.

Although the grant was for a secular use (i.e., making a playground safer), the state of Missouri halted the application process and denied Trinity’s attempt to participate in the program solely because Trinity is a church. The state based this exclusion from the program on Article I, § 7, of the Missouri Constitution, which states, “no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

As Alliance Defending Freedom, the legal firm that defended Trinity Lutheran, argued in their petition:

Article 1, § 7, of the Missouri Constitution, to which the DNR pointed in denying Trinity Lutheran’s application, has a credible connection to the bigotry of the federal Blaine Amendment. It was enacted in 1875—the exact same year the federal Blaine Amendment was proposed and debated. . . . Notably, Article I, § 7, is a strict no aid provision that shares the same grounding in “hostility to the Catholic Church and to Catholics in general” that this Court recognized in Mitchell, 530 U.S. at 828 (plurality opinion). And, Article I, § 7’s past connection to religious bigotry carries over to the present in the DNR’s application of that provision to categorically exclude religious preschools and daycares from the Scrap Tire Program, which constitutes religious status discrimination of the worst kind.

Unfortunately, while the Court’s ruling acknowledged Missouri’s policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” it doesn’t address the Blaine Amendments. The Court’s refusal to address the issue directly means the vestiges of this religious bias will remain in our state constitutions and in the dusty tomes of our nation’s law books.

The Trinity Case is the latest reminder of the strange legacy this former congressman from Maine has left us. As Blaine biographer Charles Russell said, “No man in our annals has filled so large a space and left it so empty.”