Published by the Freedom From Religion Foundation, Inc. FFRF.org

Law student essay contest: First place — Marc Mohan

Vol. 37 No. 05 June/July 2020
Marc Mohan                                                                                                                                                                                                                                                                                                                               

FFRF awarded Marc $4,000 for his winning essay.

By Marc Mohan

One argument frequently proffered against the constitutionality of no-aid clauses such as the Montana constitutional provision at issue in Espinoza is that their enactment was prompted by anti-Catholic bigotry or animus. This argument misreads the history surrounding the enactment of no-aid clauses and misapplies doctrine surrounding animus.

Opponents of no-aid clauses argue that provisions in the constitutions of Montana and other states arose in the context of anti-Catholic bias during the latter half of the 19th century. During this time, an increase in the Catholic population of the United States created tension within the relatively recent innovation of public, or common, schools. Such schools frequently had a nondenominational Protestant tenor to their instruction, which led to the opening of many nonpublic Catholic schools.

Sen. James Blaine proposed a federal constitutional amendment in 1875 that would have, among other things, prevented public money from flowing to “religious sects and denominations.” The Blaine Amendment was narrowly voted down by the Senate, but in its wake several states added similarly worded provisions to their constitutions, while others were forced to do so as part of their admission to the union.

The Supreme Court has held that the presence of animus can be a reason to invalidate government action. In Romer v. Evans, the court invalidated a Colorado constitutional amendment that forbade the extension of anti-discrimination measures to protect on the basis of sexual orientation. In doing so, Justice Anthony Kennedy wrote that the provision violated the Equal Protection Clause of the 14th Amendment because of “the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”

In another case, the court held that while an Alabama constitutional provision denying the right to vote to persons convicted of crimes of moral turpitude was racially neutral on its face, the measure had been enacted with discriminatory intent and had produced discriminatory effects, and so was a violation of the Equal Protection Clause.

And when “the suppression of a central element of” a religion is the object of an ordinance, that ordinance is presumptively a free exercise violation and can only survive by withstanding strict scrutiny.

However, several factors complicate the applicability of those cases to Espinoza. First, not all no-aid provisions were enacted during the 19th-century period when anti-Catholic sentiment was prevalent. Several founding-era state constitutions contain prohibitions against government support of churches or clergy. These measures, intended to protect against excessive government interference with religion, trace their roots to the writings of Thomas Jefferson and James Madison, both of whom argued forcefully for the separation of church and state.

The idea that public tax revenue should not be directed toward religious institutions predates even the adoption of the First Amendment.

Second, many of the no-aid clauses that were adopted during the late 19th century have been re-adopted as states have revised or replaced their constitutions.

For instance, in 1972, Montana adopted a new Constitution, the culmination of a three-year process intended to replace the original 1889 Constitution with one embodying an entirely new framework of government.

Starting from scratch, the constitutional convention debated such fundamental issues as whether the state Legislature should be unicameral or bicameral.

When the language of Montana’s original constitution was employed in the new document, it was through conscious, deliberate choice. In re-adopting Article XI, Section 8, of its 1889 constitution using the exact same verbiage, the Montana Constitutional Convention commented that “[a]fter long and serious consideration, a majority of the committee decided to retain the section in the existing Constitution (Article XI, Section 8) which strongly prohibits direct or indirect aid from any public fund of the state to any sectarian educational institution or for any sectarian purpose.”

Any causal link between anti-Catholic sentiment of the late 1800s and the adoption of Article XI, Section 8 was certainly broken by the reconsideration and re-adoption of the same language in 1972.

Third, and relatedly, the word “sectarian” has a different meaning today than it did in the 19th century. According to one historical analysis, “given the preoccupation of the advocacy literature in opposition to the so-called ‘Blaine Amendments’ with the assertion that the word ‘sectarian’ was code for ‘Catholic,’ that word should play the dominant or defining role in state Blaine clauses; but this is not the case.” The word “sectarian” did not appear in state constitutional language until 1864, but its root word, “sect,” appeared as early as 1776.

And “sect” originally referred not to Catholicism, but to “the variety of Protestant denominations found in the American colonies.” When “sectarian” begins to appear in state constitutions, it is often paired with “sect,” and the constitutional language often, on its face, refutes the notion that the terms refer to any one branch of religion or to Catholicism in particular.

By the 1940s at the latest, “nonsectarian” was used as a synonym for “secular” by the Supreme Court, implying that “sectarian” encompassed all religious denominations. And by 1972, when the Montana Constitution was ratified, the original meaning of “sectarian” was simply “religious.”

If the court, then, were to hold that any state no-aid clause that originated from perceived animus toward a particular religious denomination, or toward religion generally, was unconstitutional, then most likely “it will devolve to state courts to decide whether or not a state clause should be considered a Blaine Amendment and, if not, whether or not the state clause, like that of Washington, falls into the ‘play in the joints’ once again articulated in Locke.”

Another weakness in the animus argument against no-aid clauses is that, typically, it has applied in situations where the original target of the animus is the same group seeking elimination of the challenged provision. In this instance, however, it was alleged anti-Catholic bias that spurred the adoption of no-aid clauses, but those provisions are now being challenged on the basis that they discriminate against religion in general.

Given that the animus argument against Blaine Amendments alleges a desire to preserve Protestant religious schooling rather than strictly secular education, there is not a precise fit between the original animus and the present alleged harm. A holding that, nonetheless, no-aid clauses were void for animus, could open the door to the invalidation of other provisions or statutes that were allegedly inspired by hostility toward a protected group or belief.

For instance, a polygamist who is not a member of the Church of Jesus Christ of Latter-Day Saints could seek to overturn Reynolds v. United States, in which the Supreme Court upheld laws outlawing polygamy. If the anti-polygamy laws Reynolds and other 19th century decisions upheld were shown to be motivated by anti-Mormon animus, that could serve as a basis for the invalidation of such laws.

And a challenge to such laws could be brought by members of any religion, or none at all, if it were brought under equal protection concerns rather than free exercise ones.

This is not to say that in some rare situations an otherwise facially neutral law cannot be invalidated on the basis of animus. In Church of the Lukumi Babalu Aye v. City of Hialeah, the discriminatory intent of city regulations effectively banning the ritual slaughter of animals by followers of the Santería religion was evident. But those regulations were recent, the record was replete with expressions of hostility to the practitioners of Santería, and the rules were underinclusive to achieve their ostensible goals.

In Lukumi, Romer and Hunter, the animus behind the challenged provisions was markedly evident. Outside of those cases, courts have been extremely reluctant to look into the minds of drafters to discern the moral intent behind legislation or constitutional texts. Under this appropriate standard, the no-aid clause being challenged in Espinoza and its kin easily pass constitutional muster.

Marc, who grew up in Wisconsin, attends Lewis & Clark Law School. He worked as a freelance film critic and video store owner before deciding to go to law school following the 2016 election. He is married and has a daughter who is 15. His goal as a lawyer will be to “work to help repair the damage that has been done to the American legal and political fabric over the last several years. I have always felt strongly about the outsized influence religion has wielded in American society and government.”