A Necessary Rebalancing
First, a word to those who might have the ear of the Court.
There is a concerted effort in the press to convince the Supreme Court to compromise in Dobbs v. Jackson Women’s Health. In particular, members of the press are writing impassioned pleas for Chief Justice Roberts to solomonesquely split the baby and preserve some semblance of Roe v Wade.
I hope the Chief Justice is paying attention. After the Dobbs leak, should he obtain such a compromise, it will incentivize future violence and protest against the Court and future leaks to build sentiment in one direction or the other. The only way for the Court to preserve itself, its security, and its integrity is to show it will not be bullied, badgered, or harassed into changing positions. It is unfortunate that this precludes any sort of further consideration. But we are in this place because the press is convinced Chief Justice Roberts previously bowed to public sentiment by saving Obamacare. It seemed a political act based on public cajoling. National Federation of Independent Business v. Sebelius, in which the Chief Justice’s sleight of hand on the taxation clause preserved Obamacare, opened the door to this leak and all that has come from it. If he has not realized it before, he must now for the security and integrity of the Court.
If it happens with Dobbs, Chief Justice Roberts will actually be undermining the Court instead of preserving the Court. He’ll be demonstrating conclusively for many the Court can be pressured in the press and by protestors. We know the opinion. We have seen the draft. Deviating too far from it to save any part of Roe will open the Supreme Court to future waves of violence, protest, and press-induced pressure. The Court must release Dobbs without a compromise, as the leak suggested, or God help that institution with what will come in future controversial decisions.
Now, on to that other decision.
When our union first formed, many states had affiliations with various Christian denominations. There was no separation of church and state. Contrary to current dogma, while Jefferson wrote about a separation of church and state, it was always that the federal government could not advance or hinder religion, nor could the federal government pick between denominations.
At the state level, until the twentieth century, states had close ties to churches. In 1875, after the passage of the Fourteenth Amendment, President Grant advocated for a constitutional amendment that would fund free education, but prohibit state funding of religious schools. Republican Congressman James G. Blaine of Maine proposed the amendment and it failed by four votes in the Senate.
President Grant’s support for the measure and Congressman Blaine’s advocacy of the measure were explicitly premised on stopping Catholic education of immigrants in the United States, particularly the Irish. In the nineteenth century, instead of fretting about Hispanic immigrants, Americans fretted about the Irish.
What is notable is that the debate over Blaine’s amendment clearly showed that legal scholars and politicians of the day thought government money could, in some way, go towards sectarian schools. Blaine’s amendment read: “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 therefor, 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.”
Having failed at the federal level, Blaine took his anti-Catholic campaign to the states. All but twelve states adopted versions of his amendment to ensure Catholic schools could get no state benefits.
In the twentieth century, riding the wave of anti-Catholic sentiment, the federal courts began positing that the federal government and states must be explicitly anti-religious. The First Amendment actually states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme Court took the position that it meant any funding of the government that flowed at all, in any way, to churches was establishing a religion.
By swinging in that direction, the Court created hostility toward religion. It became legal dogma that the government discriminating against religious people and religious institutions was not, in fact, discrimination. It became accepted that government could give preferential treatment to the atheist who, by faith, believes there is no god, but could never give anything at all to those who, by faith, believe in God.
In the twenty-first century, the Supreme Court has finally corrected the imbalance. In Trinity Lutheran Church of Columbia, Inc. v. Comer, Missouri offered grants to institutions that maintained playgrounds in order to resurface those playgrounds. Playgrounds of private schools could get grants unless the private school was religious. The Supreme Court ruled that this program discriminated against religion. It set apart the religious for disparate treatment, not equal treatment.
In Shurtleff v. City of Boston, the City of Boston let private organizations fly flags over Boston’s city hall. But when a Christian organization wanted to fly its flag, the city said no because it was religious. Unanimously, the Supreme Court ruled that if Boston lets any organization fly a flag, which it did, it could not discriminate against religious organizations.
Now, in Carson v. Makin, decided yesterday, the Supreme Court went one more step in correcting its anti-religious imbalance. In that case, Congressman Blaine’s home state of Maine reimbursed parents in rural parts of Maine the cost of private education if there were no public schools available at a reasonable distance. But Maine refused to reimburse parents who sent their children to sectarian schools. The Court has again ruled the government must not discriminate between the secular and sectarian. If the government pays for one private school, it must pay for other private schools even if they are operated by sectarian institutions.
Repudiating James Blaine’s anti-Catholic bigotry and the anti-religious bigotry in American jurisprudence is timely and necessary. The government is not establishing a religion. It is, instead, now putting the religious on equal footing with the atheist in the town square.
OK, can we have a “guy humor” laugh? I apologize if you can’t. But oh my gosh, the Washington Post guy didn’t even seem to realize what he was doing. You just have to watch the video.