Blaine Amendments and Religious Liberty

Blaine Amendments and Religious Liberty Testimony Presented Before the Missouri Senate General Laws Committee on February 14, 2012

by Dave Roland Chairman Cunningham, Vice-Chairman Nieves, and members of the committee, I thank you for the opportunity to offer this testimony. My name is Dave Roland and I am the Director of Litigation and co-founder of the Freedom Center of Missouri, a non-profit, non-partisan law firm dedicated to research, litigation, and education in defense of state and federal constitutional principles. I have spent my entire career focusing on constitutional law while working with groups such as the Freedom Forum’s First Amendment Center, the Becket Fund for Religious Liberty, the Institute for Justice, and, just prior to founding the Freedom Center, with the ShowMe Institute. This testimony is being offered for informational purposes so that legislators may have a better understanding of the broader historical context regarding Blaine Amendments and the issue of religious liberty at the state and national level.

Catholic Immigrants and Nativist Hostility In 1776, only about one-percent of the population of the United States was Catholic, but the early Nineteenth Century saw the United States inundated with waves of immigrants, many of whom were members of the Roman Catholic Church. By 1840, the nation had 17 million Catholics; by 1860 Catholics had become the single largest denomination in the country,

Roland SJR 47 Testimony 1

accounting for 37 percent of the religious population. Many Americans feared that this influx of Catholics would challenge the religious orthodoxy and that they would look to Rome for political instruction. The very idea was more than many Protestants were willing to tolerate. In response to the burgeoning “threat” of Catholicism, Nativist societies emerged whose purpose was to limit the volume of immigration and to regulate the nationality and class of persons allowed to enter the United States. These anti-immigrant attitudes eventually coalesced into support for the American Party, formed in 1843, which was also called the “Know-Nothings.”1 By the middle of the century, the Know-Nothings had realized significant political success, winning more than a hundred Congressional seats and coming to dominate several state governments. Their most notable success was in Massachusetts, in which the election of 1854 saw the Know-Nothings win the governorship, the entire congressional delegation, forty seats in the state Senate, and all but three of the 379 seats in the state House of Representatives.2

Public Schools, Protestants, and Papists At the same time that these Nativist attitudes were fermenting, activists such as Horace Mann3 were pushing for the growth of “common schools” in which the youth of the nation could be instructed in matters of faith, as well as in the fundamental courses of study. These educators sought to find a sort of moral “common denominator,” a set of basic Christian principles to which all Protestant denominations could agree and which would then be used as part of the curriculum.4 These activists considered such a system to be “non-sectarian” because no one Protestant denomination would be permitted to exert any peculiar authority for its doctrines and 1

“The Grand Finale is Just the Beginning: School Choice and the Coming Battle Over Blaine Amendments” by Eric W. Treene, at 6. (hereafter, Grand Finale) 2 Id. at 7.

3 Massachusetts’ Secretary of Education, 1837-1849.

4 Joseph P. Viteritti, “Blaine’s Wake: School Choice, the First Amendment, and State Constitutional Law”, 21 Harv.

J.L. & Pub. Pol’y 657, 666 (1998). (hereafter, Blaine’s Wake)

Roland SJR 47 Testimony 2

the resulting program “earnestly inculcates all Christian morals; it founds its morals on the basis of religion; it welcomes the religion of the Bible; it allows it to do what it is allowed in no other system, to speak for itself.”5 To be sure, Mann’s schools required daily reading of the King James Bible, but he viewed this as no more than neutrally presenting the text and allowing the students to draw their own conclusions from it.6 In the minds of the Protestant majority, the absence of denominational teaching distinguished the educational practice of the common schools from “sectarianism,” in which a preacher or some other religious authority would indoctrinate the students by exegeting the text for them.

The groundswell of Catholic students posed a serious problem for the common schools, however, because the religious convictions the immigrants brought with them from Europe were not necessarily compatible with the standardized version of Christianity advanced by the schools.

The conflict is exemplified by the situation New York faced in 1842. As was the case in Mann’s Massachusetts, it was the policy of the New York Public School Society to have the King James Version of the Bible (a translation forbidden by the Catholic Church) read in their classrooms, and certain of the schools’ textbooks also included historical characterizations that were repugnant to Catholics.7 The Catholics, under the guidance of Bishop Hughes, demanded that because they could not in good conscience attend the public schools, part of the public school fund ought to be diverted to the support of their own schools.8 They initially won some concessions from the Public School Society, but ultimately the legislature created a City Board of Education to establish new public schools and acted to bar any public funding of “sectarian” schools.9 5

Horace Mann’s Report to the Board of Education in 1848, quoted in “The Grand Finale is Just the Beginning: School Choice and the Coming Battle Over Blaine Amendments” by Eric W. Treene, pp. 5-6.

6 Blaine’s Wake at 666.

7 Grand Finale. at 6.

8 Blaine’s Wake at 669. At one point after making this suggestion, Hughes would have his house burned down.

9 Grand Finale at 6.

Roland SJR 47 Testimony 3

The Know-Nothings Strike Back A decade later, Protestants in other states would label similar Catholic efforts attempts to “destroy public education” or “subvert basic American principles.”10 These accusations coincided with the rise of the Know-Nothing Party in the election of 1854, whose action against Catholic interests was wide-ranging and swift in states where the party had gained the necessary authority. After their sweeping victory in Massachusetts, the Know-Nothings proposed constitutional amendments that would have denied Roman Catholics the right to hold public office and limited the franchise to males who had lived at least twenty-one years in the United States.11 They dismissed Irish state-government workers, banned foreign-language instruction in the public schools, and established a special committee charged with the task of liberating women believed to be held captive in convents and nunneries, targeting as well “acts of villainy, injustice, and wrong… perpetrated with impunity within the walls of said institutions.”12

James Blaine and His Proposed Amendment The anti-Catholic sentiment carried on beyond the eventual demise of the Know-Nothing party, although it was not quite as pronounced during the Civil War and Reconstruction eras.13 James G. Blaine arrived on the national political scene in 1863, having ridden a wave of antiCatholic, Nativist support from his home in Maine to a seat in the House of Representatives. He served in the House for thirteen years, acting as the Speaker of the House from 1869-1875.14 True to his base of support, Congressman Blaine made it a personal quest to see that the doors of 10

Blaine’s Wake at 669.

Grand Finale at 7.

12 Id. (quoting John R. Mulkern, The Know Nothing Party In Massachusetts, 76 (1990)) 13 Id. at 8.

14 Office of the Clerk, United States House of Representatives – “Speakers of the House (1789-Present)” http://clerk.house.gov/histHigh/Congressional_History/speakers.php 11

Roland SJR 47 Testimony 4

the public treasury were finally and unquestionably closed to Catholics who wanted money to establish tolerable alternatives to the Protestant-dominated public school system. When, in September 1875, President Ulysses S. Grant called for the passage of constitutional amendment that would deny public funds to religious organizations, Blaine responded by proposing the constitutional amendment that would come to bear his name and which he hoped would catapult him to the Republican Party’s presidential nomination in 1876.15 It read: No state shall make any law respecting an establishment of religion, or prohibiting the 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 lands so devoted be divided between religious sects or denominations.16 The amendment failed for several reasons. While Blaine was taking the path favored by any number of Republican Congressmen, the party’s internal politics and some astute maneuvering by the Democrats ended up spelling the doom of the Blaine Amendment.17 For the Republicans’ part, they would have preferred for the amendment to prohibit Congress from providing funds to sectarian organizations in addition to the state prohibition, and they wanted to ensure that any new amendment would not inhibit the Bible reading, hymn singing, and basic moral instruction that they saw as a vital part of the free public educational system.18 Independent of the amendment’s content, Blaine had made enemies in his time as the Speaker of the House, and this combined with effort to gain the Republican Party’s presidential nomination to create a significant incentive for some of his fellow Congressmen to see him publicly

15

Grand Finale at 8.

Id. at 3, quoting Lloyd Jorgenson, The State and the Non-Public School, 1825-1925, at 138-139 (1987).

17 Comments of Dr. Ward McAffee at a First Amendment Law Symposium entitled “Separation of Church and States: An Examination of State Constitutional Limits on Government Funding for Religious Institutions”, hosted by the First Amendment Law Review at University of North Carolina School of Law. Available at http://pewforum.org/events/index.php?EventID=45 18 Id. 16

Roland SJR 47 Testimony 5

humiliated.19 Furthermore, the Democrats, who controlled the House of Representatives and recognized that the amendment was largely an effort to build a campaign issue for the 1876 election, were able to kill the amendment with kindness by passing an “emasculated” version of the bill in the House20 that they knew the Republican Senate would never accept.21 As a result, the Democrats appeared sympathetic enough to the anti-sectarian cause that they could defuse it as a campaign issue, while ensuring that the amendment would never get the requisite votes.22 Despite Blaine’s failure to get his amendment added to the Federal Constitution, the influence of his cause did not disappear, but simply changed forms. While Blaine’s supporters could not command the votes necessary for a Federal Amendment, they did have the requisite votes to set the terms for new states’ admission into the union. In some states, popular sentiment alone led to the passage of a Blaine Amendment.23 For others, however, Congress utilized the continuing, steady undercurrent of anti-Catholic sentiment to require that territories applying for statehood must include a provision in their new state constitution that would echo the restrictions of the Blaine Amendment.24

19

Id. The Democrats’ House version of the Amendment passed 180-7, even though it had no hope of being reconciled to the more powerful Senate version. Grand Finale at 8.

21 McAfee’s Comments at http://pewforum.org/events/index.php?EventID=45.

22 Id. 23 Grand Finale, n. 42. (See, e.g., N.Y. Const. Art. XI, § 3 (adopted 1894); Del. Const. Art. X, § 3 (adopted 1897); Ky. Const. § 189 (adopted 1891); Mo. Const. Art. IX, § 8 (adopted 1875)).

24 Blaine’s Wake at 673. See, e.g., Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889) (enabling legislation for South Dakota, North Dakota, Montana, and Washington); Act of June 20, 1910, 36 Stat. 557 § 26 (1910) (enabling legislation for New Mexico and Arizona); Act of July 3, 1890, 26 Stat. L. 215, § 8, ch. 656 (1890) (enabling legislation for Idaho); S.D. Const. Art. VIII, § 16; N.D. Const. Art. 8, § 5; Mont. Const. Art. X, § 6; Wash. Const.

Art. IX, § 4, Art. I § 11; Ariz. Const. Art. IX, § 10; Idaho Const. Art. X, § 5.

20

Roland SJR 47 Testimony 6

The Landscape Today Currently, as many as 37 states — including Missouri — still have at least one Blainetype amendment within their constitutions, although most of these have been rendered only marginally effective in regard to their original purpose because the states have either modified them through the constitutional amendment process or the states’ supreme courts have interpreted these amendments in such a way as to render them inactive.25 Missouri is one of the states with multiple Blaine Amendments, found in Article I, section 7 and Article IX, section 8.

Each of these provisions was introduced to the Missouri Constitution in 1875, just as antiCatholic sentiment was reaching a fever pitch and James Blaine was proposing his amendment to the U.S. Constitution. Unfortunately, the Missouri Supreme Court has historically interpreted these provisions unevenly, although its general position has been that the state’s Blaine Amendments prohibit almost all uses of public funds where even an indirect benefit to religious schools or organizations might result.26 The consequence of these provisions has been that Missouri’s Constitution sometimes requires the government to cut citizens and organizations out of government programs and benefits, for no reason other than their religious faith.

The U.S. Supreme Court has recognized that there is no legitimate concern that the government will impermissibly benefit religion simply by allowing religious people and 25

These cases usually point out that government assistance is directed to the child or family, not to the school or medical provider they have chosen. See, e.g., Jackson v. Benson, 578 N.W.2d 602 (Wisc. 1998); Kotterman v.

Killian, 972 P.2d 606 (Ariz. 1999); Bagley v. Raymond Sch. Dist., 728 A.2d 127 (Me. 1999); Simmons-Harris v.

Goff, 711 N.E.2d 203 (Ohio 1999).

26 See Harfst v. Hoegen, 163 SW2d 609 (Mo. 1942) (overtly Catholic school funded by tax revenues); Berghorn v.

Reorganized School District No. 8, 260 SW2d 573 (Mo. 1953) (formerly overtly Catholic schools still operated by Catholic teachers and administrators for the benefit of Catholic students); McVey v. Hawkins, 258 S.W.2d 927 (Mo. 1953) (school district bussing students to parochial schools); Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974) (public funds used to purchase textbooks for the benefit of teachers and students at religious schools); Mallory v. Barrera, 544 S.W.2d 556 (Mo. 1976) (public funds used to provide teaching services at parochial schools). But see also Saint Louis University v. Masonic Temple Association, 220 S.W.3d 721 (Mo. 2007) (religiously-affiliated school permitted to take advantage of tax-increment financing); Menorah Medical Center v. Health & Educational Facilities Authority, 584 S.W.2d 73 (Mo. 1979) (public authority permitted to finance facilities for religiously affiliated organizations); Americans United v. Rogers, 538 S.W.2d 711, 719 (Mo. 1976) (publicly funded college scholarships could be used at religious schools).

Roland SJR 47 Testimony 7

organizations to participate in programs that are available to everyone else.27 In fact, there is a very good argument to be made that the First Amendment should not tolerate a state constitutional provision that would deny citizens and organizations the equal opportunity to participate in government benefits, simply because of their religious faith. SJR 47 would help to eliminate at least part of this problem in Missouri by removing one of the two Blaine Amendments and instead establishing that, while the government is still not permitted to advance religion, it will no longer exclude people of faith and their institutions from educational programs and benefits.

Conclusion Missouri’s Blaine Amendments are outdated relics of anti-Catholic religious bigotry.

They reflect some of the worst impulses in the human character — exclusion and discrimination against those who may think or believe differently from the mainstream — and they are directly contrary to the ideals of the First Amendment, which guarantees citizens a right to the free exercise of religion without being excluded from generally available governmental benefits.

While SJR 47 would not solve the problem completely, it would allow Missouri’s citizens to decide for themselves if they are willing to take a significant step toward establishing true religious liberty in our state.

Thank you very much for your time and consideration.

27

See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

Roland SJR 47 Testimony 8