FREEDOM OF RELIGION

Vol. 21 No. 4 (April, 2011) pp.226-230

FREEDOM OF RELIGION: LOCKE v. DAVEY AND STATE BLAINE AMENDMENTS, by Douglas F. Johnson. El Paso: LFB Scholarly Publishing, 2010. 220pp. Hardcover. $65.00. ISBN: 9781593324322.

Reviewed by Thomas M.J. Bateman, Department of the Political Science, St Thomas University. bateman [at] stu.ca.

Douglas Johnson’s book is at root an argument for comprehensive educational disestablishment. He laments the emergence of a Supreme Court jurisprudence allowing courts to uphold programs that involve the distribution of public moneys to institutions and persons with religious mandates and purposes. He is interested in advancing secular education and in rebuilding the strict wall of separation between church and state.

His particular interest is to defend the US Supreme Court’s 2004 decision in LOCKE v. DAVEY (2004). In 1999, the Washington State government established the Promise Scholarship Program, providing funds to academically gifted students to pursue post secondary educational programs at all nationally accredited state institutions – including those with religious mandates – in a professional, academic, or vocational area of their choice, except studies in “theology.” The parties in this case agreed that the term means “devotional” theology, suitable for pastoral ministry. Joshua Davey won the scholarship and planned to attend a Christian academy to study business administration and theology. Because of his choice to study theology, he was judged ineligible for the scholarship.

Washington’s constitutional protection of freedom of religion reads, in part: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.” Is the denial of the scholarship to Davey contrary to the First Amendment? Davey lost at trial but won on appeal.

To the surprise of many, a 7-2 majority of the Supreme Court granted Washington’s appeal and upheld the terms of the constitution and thus of the scholarship program. For the majority, Chief Justice Rehnquist held that the program’s interference with Davey’s free exercise was marginal. “The state has merely chosen not to fund a distinct category of instruction.” The state, he concluded, is not hostile to religion; it merely is acting in accordance with a long American tradition separating public funding from the practice of religious vocations. Further, the program was tailored to accommodate religion. Funding was tenable at accredited religious schools, and students holding scholarships could take theology courses, though they could not major in the subject. Rehnquist found in the program no animus against religion.

In dissent, Justice Scalia (Justice Thomas concurring) declared that the scholarship program facially discriminates against religion. “When the State makes a public benefit [*227] generally available,” Scalia wrote, “that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.” While the Founders were hostile to funding clergy specifically, that says nothing about whether the clergy were to be excluded from programs generally available to all. The state, he argued, merely pitted the conscientious freedom of taxpayers against the free exercise rights of persons like Davey, and opted to protect the taxpayers. Scalia laid it on thick, intoning that violations of the dignity of persons excluded from public programs due to one’s religious calling “can never be dismissed as insubstantial.” This, he concluded, is a clear case of discrimination against a religious minority.

Johnson tells a story that goes beyond the particular circumstances of LOCKE v. DAVEY. Washington’s religious freedom provision is among a host of other state constitutional provisions often called “Blaine Amendments.” In 1875, President Ulysses Grant urged the development of institutions of learning ensuring “a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family alter, the church and the private school, supported entirely by private contributions. Keep the church and state forever separate” (p.27). James Blaine, Republican Congressman from Maine and three-time Presidential aspirant, took up the challenge and proposed the following constitutional amendment:

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.” (p.28)

Given the sensibilities of the time, what with the advent of post-Civil War public schooling, increased Catholic immigration, and a growing nativist movement, the word “sect” in the proposed amendment was understood to refer to Catholic schools. Accordingly, the Blaine Amendment was considered to be motivated by anti-Catholic animus.

The amendment failed, but Congress subsequently required language like this in constitutions of states entering the Union. “Blaine Amendments” characterized many state constitutional regimes. State-level deprivations of state-level public funding for sectarian schools were associated not with First Amendment principles of non-establishment of religion but with religious prejudice and intolerance. The upshot for twentieth-century constitutional law is that state proscriptions on state funding for religious activities have been rendered illegitimate because of this invidious association with religious bigotry.

Curiously, Johnson assumes but does not demonstrate the link between Blaine Amendments and anti-Catholicism. He mainly relies on obiter dicta in two Supreme Court decisions in which, taken together, seven justices express concerns [*228] about the pedigree of Blaine Amendments. (See MITCHELL v. HELMS (2000) and ZELMAN v. SIMMONS-HARRIS (2004).) In these cases, justices questioned the legitimacy of the Blaine Amendments’ use of “sect,” arguing that it is “code” for Roman Catholic. The Court implied that the provisions should not control the disposition of cases.

Johnson adamantly opposes this conventional wisdom. He attempts to rescue the so-called Blaine Amendments from disrepute. He does not merely ask the reader to forget or excuse the historical anti-Catholic bigotry; he wants to demonstrate that many no-funding clauses predate late nineteenth-century nativism, and that, even in cases of amendments ratified in that period, arguments for state neutrality were as prominent as those rooted in bigotry.

His method includes a detailed and comprehensive parsing of all state constitutional provisions (and amendments thereto). What he finds is that many such provisions bar public funding not just of “sects” but also of “denominations,” these latter generally understood to cover Protestant churches. He also finds that many amendments predate and postdate the anti-Catholic period of 1875-1900. Case law from the period also suggests that sect and denomination were considered synonymous. His conclusion: “the entire concept of the ‘Blaine Amendment’, as currently used, is fundamentally flawed” (p.126). He prefers that we bury the name altogether and refer to the Blaine-like state amendments as “No Compulsory Support Clauses,” stressing that they are properly understood as outgrowth of the concern for separation of church and state rather than anti-Catholic animus. Thus, state constitutions barring public funding of religion in education and other activities are consistent with the spirit of a secular, liberal state (p.91).

Does this dispose of the issue? If “sect” is alleged to be code for “Catholic,” the law books would not be the place to look to prove or disprove the point. The law books are where the code would operate; the real meaning is described elsewhere – in informal conversations, newspapers, letters, perhaps assembly debates. Johnson does not look in these places. Accordingly we do not know for sure if “sect” is or is not code for “Catholic.” We have only the opinions of Justices Scalia and Thomas to go on.

Johnson makes much of the inclusion in many amendments of both “sect” and “denomination.” He considers them to be used as equivalents. And this is a good argument for him to make in pursuit of his thesis. However, amendments typically proscribe the control of education of education by sects and denominations. They say little about the use of general, vague, non-denominational Protestant religious observances in public schools. Some amendments indeed contain Christian theological language (See p.122). So one can support the prohibition on denominational control of a school but nonetheless support general Protestant observances like Scripture reading, prayer, and holiday rituals.

Johnson considers the implications of LOCKE v. DAVEY. While the Court did accept the existence of Blaine Amendments, it declared that the provision in this case was not one of [*229] them. Accordingly, it rendered the future use of this rhetorical category difficult. Now each litigant will have to undertake historical research to prove that a particular state constitutional provision was motivated by anti-Catholic bias as opposed to a desire for secular education untainted by religious dogma.

This is an interesting analysis on a timely topic. Several implications leap from the pages. The first is the effect of the redistributive state on constitutional law. The wall of separation between church and state Johnson supports is easiest to maintain when reinforced by a wall of separation between state and society. In the negative state of early America, governments are prevented from acting on society and individuals. Constitutions generally prevented state action; they did not require positive state action. The modern administrative state complicates all this. Now the state is entangled in the most intimate of individual decisions, and the occasions for its collision with religious decisions and practices have multiplied. Now, when the state does act on society and distributes various benefits (like scholarships), on what terms must it do so? Scalia in LOCKE argued that when the state distributes benefits, it must do so without regard to religious belief. The other school of thought is that when the state does entangle itself with religion when distributing benefits, it is conscripting taxpayers’ money for religious purposes with which they might not agree, thus violating their freedom of conscience. Still another school would argue that whatever disability Davey experienced by having been denied the scholarship, it was a disability stemming from his private religious choices, not government policy. Which is the correct position?

The fundamental issue resting just below the surface of the debate about the Blaine Amendments and Johnson’s argument is the role of religion in American liberal democracy. From Tocqueville comes the view that American democracy is endangered if its robust pluralism is flattened. Consider PIERCE v. SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND MARY (1925), in which Justice McReynolds for the Court wrote that “The fundamental theory of liberty upon which all government in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not a mere creature of the state.” This, philosophically at any rate, is at odds with the thrust of the book’s argument. The issues are difficult and go beyond bigotry.

For specialists in American constitutional law of religious freedom, as well as for students of comparative state constitutional law and politics, this book ought to be of value. Unfortunately, it suffers from poor copy-editing: it is repetitive and contains several typographical and grammatical errors. And for a book concerned about historical origins and meaning, it leaves certain steps in the historical argument unexamined. [*230]

REFERENCES:

LOCKE v. DAVEY 540 U.S. 712, (2004).

MITCHELL v. HELMS 530 U.S. 793, (2000).

PIERCE v. SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND MARY, 268 U.S. 510, (1925).

ZELMAN v. SIMMONS-HARRIS, 536 U.S. 639, (2004).

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