Wednesday, May 21, 2003

Several liberal civil rights groups have filed a lawsuit in Colorado seeking to have a school voucher program there declared in violation of Colorado's Constitution.
The Colorado constitution says, in part, that the state and political subdivisions cannot pay public money to support schools "controlled by any church or sectarian denomination whatsoever."

Ralph Neas, president of People for the American Way, a civil rights group that helped bring the lawsuit, said that "the language of Colorado's constitution underscores the strong belief of its citizens that taxpayer funds should not be used to subsidize religion." Other groups involved in the suit include the Colorado State Conference of Branches of the NAACP, the American Jewish Congress, the American Jewish Committee, the American Federation of Teachers, the National Education Association and the American Civil Liberties Union.
The Colorado constitional provision quoted is a so-called "Blaine amendment." Many states passed Blaine amendments in the late nineteenth-century, after Senator Blaine unsuccessfully sought a similar amendment to the United States Constitution.

There is no question that Blaine amendments were borne out of bigotry. They were the work of nativists who wanted at all costs to prevent immigrant Catholics from sharing in the same public funds that Protestants did. As the Arizona Supreme Court recently observed:
The Blaine amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what was perceived as a growing "Catholic menace." Viteritti, 15 Yale L. & Pol'y Rev. at 146; see also Stephen K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992). Its supporters were neither shy nor secretive about their motives. As one national publication which supported the measure wrote:
Mr. Blaine did, indeed bring forward . . . a Constitutional amendment directed against the Catholics, but the anti-Catholic excitement was, as every one knows now, a mere flurry; and all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes.
Green, supra, at 54 (quoting The Nation, Mar. 16, 1876, at 173). Other contemporary sources labeled the amendment part of a plan to "institute a general war against the Catholic Church." Green, 36 Am. J. Legal Hist. at 44 (quoting The New York Tribune, July 8, 1875, at 4). While such efforts were unsuccessful at the federal level, the jingoist banner persisted in some states.
Kotterman v. Killian, 972 P.2d 606, 624 (Ariz. 1999). For further demonstration of the ugly roots of nineteenth-century separationism, one should consult Chicago law professor Philip Hamburger's 2002 book Separation of Church and State, or Joseph P. Viteritti, Blaine's Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. Journal of Law and Public Policy 657 (1998).

For purposes of this blog posting, here's an extended quote from a law review article by Kurt Lash:
Burdett's Amendment (which, like Blaine's, failed to win congressional approval) does not mention the religion clauses. Instead, the Amendment tracks the language of similar state constitutional amendments that were adopted during the same period. These amendments had nothing to do with separation of church and state; They were preemptive strikes against Roman Catholic efforts to share in the government funding of Protestant public schools.

As previously discussed, Protestant religious exercises were ubiquitous in the common schools of the mid-nineteenth century. Catholics, when given the choice between a free Protestant education and no education at all, often chose the latter. Although some states flirted with the idea of equal funding for public and private schools, Nativist opposition barred any efforts in that direction. In order to prevent any future attempts at equal funding, Nativists sponsored constitutional amendments which prohibited educational aid to sectarian institutions.

Sometimes cited by scholars (and the Supreme Court) as reflecting the inexorable evolution of Jeffersonian Separatism, these provisions were actually attempts to give the Protestant majority an educational monopoly. The most flagrant example of this is found in the Senate's version of the Blaine Amendment itself. Although educational funds were denied to "sectarian" (read: Roman Catholic) schools, the amendment was not to be "construed to prohibit the reading of the Bible (read: Protestant King James version) in any school or institution." This bears a striking resemblance to the 1856 Know Nothing election platform which also called for "schools without sectarian influence" while at the same time opposing Catholic attempts to remove the Bible from the public schools.

By constitutionalizing the use of the Protestant Bible and prohibiting public funds to "sectarian" institutions, the Blaine Amendment would have significantly amended contemporary First Amendment norms. For the first time, the Constitution would have recognized and protected state power to coercively indoctrinate students in the tenets of a particular religion. Not only were such provisions adopted alongside of compulsory education laws, but the day was not far off where anti-Catholic animus would result in the passage of laws that attempted to shut down private schools and force attendance at public school.

Those who participated in the debates over the Blaine Amendment were well aware of the real issue underlying the proposal. Senator Morton declared that America was a "Protestant country," and warned of a "large and growing class of people in this country who are utterly opposed to our present system of common schools, and who are opposed to any school that does not teach their religion." * * * In remarks made just before the vote that defeated the proposal, Senator Saulsbury deplored the Republicans' cynical support of the amendment:
When I listened to-day to the debates upon this question, when I heard the appeals that were made by the Senators to the religious prejudices and passions of mankind, I trembled for the future of my country. . . . Have not religious persecutions and appeals to religious prejudices stained the earth with blood and wrung from the hearts of millions the deepest agonies? Yet I see springing up in my own country for the base purposes of a party, to promote a presidential election, a disposition to drag down the sacred cross itself and make it subservient to party ends. I appeal to Heaven to thwart the purpose of all such partisans!
And here's another extended quote from an article by Ira Lupu:
By the middle of the nineteenth century, Catholic immigration and the rise of common schools with a decidedly Anglo-Saxon character laid the foundation for the earliest American struggles over government-sponsored religious speech. These conflicts tended to be local and not national-because of uneven immigration patterns and the locus of authority over education-but by the 1850s, nativist, anti- Catholic sentiment had crystallized into the formation of the Native American Party, which had membership requirements of white Protestant American ancestry.

As a result of industrialization, the Western expansion, and the end of race slavery in America, coupled with European circum-stances that made emigration an attractive option, the demography of America began to change more radically after the 1860s. Waves of immigration brought groups that did not fit the prevailing cultural norms. Catholics arrived in large numbers, Jews in smaller ones. The presence of significant numbers of Catholics, who tended to be concentrated in the northeastern industrial states, brought about conflict over government money. In particular, controversy arose over the financing of education, in common schools and Catholic schools, and over government speech, especially the use of a Protestant rather than Catholic version of the Bible as a text in the common schools. These controversies, reflecting the fracturing of Protestant hegemony in America, eventually found expression in the mid-1870s in a proposal by Republican presidential aspirant James Blaine.
* * *
As is evident from the text, the proposal had two main thrusts. One was to accomplish what incorporation of the Religion Clauses eventually brought about-the imposition of federal constitutional norms of religious freedom on the states. Because there were literally no decided cases under the Religion Clauses at the time, the content of those norms was decidedly unclear. The other more pointed and direct aim of the Blaine Amendment was to create a constitutional obstacle to public financing of sectarian (i.e., Catholic) education. This rather blatantly anti- Catholic proposal was thus primarily about government money, and, despite its failure, set the stage for later judicially created doctrines designed to have the same effect.
Now I'm sure that some of the liberals opposing school choice here are sincere in their belief that public schools are the best, that vouchers will fix nothing, and that there should be a wall of separation between church and state.

Still, the irony is unbelievably thick. By relying on state Blaine amendments, liberal civil rights groups are aligning themselves -- quite literally -- with nineteenth-century nativist bigotry. Did no one amongst those civil rights groups pause to consider, if nothing else, the bad public relations that could result from deploying such a tactic? Dare I hope to see some liberal bloggers condemn what's going on here?


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