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During the coming weeks, the Supreme Court will hand down its decision in Trinity Lutheran of Columbia, Inc. v. Comer. The state of Missouri has a program reimbursing nonprofits that pave their playgrounds with recycled tires, and the case arose after the state in 2012 denied reimbursement to the Trinity Lutheran Church. Missouri’s justification was that its Blaine Amendment prohibits the state from funding religious entities. Trinity Lutheran sued, arguing that this discrimination against religiously-affiliated organizations is unconstitutional.

Although the rubberized foundation of the case may seem trivial, the stakes are high. Not merely for Trinity Lutheran but for all Americans, the question is whether the Supreme Court will overcome its longstanding indifference to the layers of religious prejudice in the Blaine Amendments.

Maine Representative James G. Blaine (1830–93) was born to a Catholic mother and a father who later converted to Catholicism; as a child, he apparently was baptized in the Catholic Church. As an adult, however, he had presidential ambitions. He does not seem to have harbored anti-Catholic animosity, and he refused to be drawn into “any avowal of hostility or unfriendliness to Catholics.” But in an era of profound anxieties about Catholics, including fears about their voting power and about the danger of their introducing papal tyranny, he was eager to be elected. He therefore proposed a constitutional amendment in late 1875 that would have rewritten the First Amendment—applying it to the states, and adding that “no money raised by taxation in any State for the support of public schools … shall ever be under the control of any religious sect.”

For decades, states had used taxes to support public and private schools controlled by Protestants, with the goal not merely of Americanizing but of Protestantizing Catholic children. And there were widespread fears that Catholics would balance this out by voting for politicians, mostly Democrats, who would direct tax funds to public or private schools dominated by Catholics.

Blaine’s amendment appealed to such fears by preventing tax money from coming under the control of any “religious sect.” Existing constitutional provisions against establishments of religion did not bar public spending on education from reaching schools with religious affiliations, and Blaine’s amendment did not propose to alter this arrangement except by excluding Catholics. The Catholic Church, being attached to its orthodoxies, had theological objections to cooperating theologically with Protestants, and it therefore could only operate schools that were distinctly Catholic or “sectarian.” In contrast, Protestants were willing to join with Protestants of other denominations in running schools. Thus, when the Blaine Amendment stated that public money could not go to institutions belonging to any one “sect,” it effectively proposed to prevent money from reaching Catholic institutions—without cutting off funds for institutions shared by Protestant denominations.

In appealing to anti-Catholic prejudice, Blaine was reaching out not merely to the unwashed masses, nor even merely to narrowly anti-Catholic nativists, but more broadly to theological liberals. As a Jewish commentator observed in 1875, “this issue will unite the whole Liberal element in this country with the anti-Catholic element, and these two elements form a vast majority all over the land.” Blaine thus could capture the votes of both traditional Protestants and theological liberals.

Nativists were not as theologically traditional in their anti-Catholicism as one might suppose. Their animosity against the Catholic Church arose not so much from the doctrines of their particular churches as from their broader theologically liberal concerns about church authority. They complained that the Catholic Church’s assertions of authority (including its hierarchy, its creeds, and its dogmatic claims of truth) threatened the mental independence of individuals. Catholic claims of priestly and especially papal authority thus seemed to prevent individual Christians from choosing their own faith, as necessary for salvation; they also seemed to prevent citizens from thinking and voting independently, as necessary for democracy.

Many theological liberals thus found themselves aligned with nativism. Although theological liberals viewed the Catholic Church as the model of what they disliked in religion, they typically expanded upon this narrow animosity to develop a broader hostility toward all hierarchical churches, Catholic or Protestant.

The role of theological liberals seemed especially significant in 1876, because some of them were joining Liberal Leagues, thus creating an identifiable and potentially politically-powerful group known as the “Liberals.” Like nativists, those who organized as Liberals despised the Catholic Church, and like run-of-the-mill theological liberals, they also detested hierarchical Protestant churches. But they took their theological animosities farther than typical theological liberals, for they were against all Christian churches—indeed, sometimes against all distinct religions. Whereas most theological liberals remained Christian, the “Liberals” were drifting out of their churches toward a more generic theism or even atheism. It therefore should be no surprise that many of them were (as put by the founder of the Liberal Leagues) “hostile to the fundamental principle of Christianity.” Putting this in the most politic light possible, the National Liberal League resolved that “the Christian or anti-Christian character of this movement is solely a question of private interpretation.”

While the Liberals understood the Catholic Church as the prototypical danger, and were broadly predisposed against all Christianity and other organized religion, they were not entirely anti-religious. Many, in fact, were theists. And most were devoted to various expressions of individual spirituality, including spiritualism and Auguste Comte’s Religion of Humanity. It therefore would be a mistake to understand their animosities as “secular” in the contemporary sense; instead, they took aim at Catholicism and other organized religion from their own theological position.

The Liberal Leagues attempted to give legal effect to their heterodox vision of religion under the slogan “separation of church and state,” and in 1876 they proposed their own constitutional amendment. It echoed Blaine’s amendment, but broadened its rejection of state funding to exclude all religious bodies: “Neither Congress nor any State shall make any law … taxing the people of any State, either directly or indirectly, for the support of any sect or religious body or of any number of sects or religious bodies.” No longer merely anti-Catholic, this amendment was broadly opposed to all ecclesiastical institutions.

Of course, many Liberals recognized that their own amendment was too radical to succeed—and as a result, it seemed, for a while, that Blaine’s bet on prejudice would pay off. In June 1876, the most famous of the Liberals, the eloquent atheist Robert G. Ingersoll, nominated Blaine as the Republican presidential candidate, and the Republican Convention adopted a platform that supported Blaine’s amendment.

Everyone knew what the Republicans were doing. A Liberal who was disappointed that the Republicans had adopted a merely anti-Catholic amendment rather than a more broadly anti-ecclesiastical one quoted the platform and explained: “For ‘sectarian’ … read ‘Catholic,’ and you have the full meaning … which is worded as to catch, if possible, the Evangelical and the Liberal votes at the same time.” Republicans may even have hoped that their embrace of sectarian strife would transcend sectional divisions—uniting not only liberal and nativist sentiment, but also North and South, in a campaign against Catholicism.

For Blaine, however, the convention was a disappointment. Rather than put him on the path to becoming president, it chose Rutherford B. Hayes.

Shortly afterward, as the election approached, Blaine’s proposal passed in the House by 180 to 7. But, in the Senate, it was criticized as an “election dodge,” and it fell two votes short of the two-thirds required to propose a constitutional amendment. Revealingly, Blaine, who by this time was a Senator, did not even attend the vote. His goal all along, as The Nation commented, had been merely to “catch anti-Catholic votes” for his campaign.

Blaine’s heritage, sadly, has been more far-reaching than he anticipated. Although he did not become president, he laid the foundation for a series of state constitutional provisions similar to his proposed federal amendment. Nearly 150 years after his campaign, approximately three-fifths of the states have these “Blaine Amendments.”

The narrow Blaine Amendments bar state money for any sectarian institution—“sectarian” being an old theologically-liberal term of derision for the Catholic Church and, more generally, for a church that acts on its own. These Blaine Amendments discriminate against the Catholic Church and against other relatively orthodox churches, whose attachment to their own distinctive authority and doctrine limits their ability to form institutions in concert with other religious groups. These amendments thereby establish the more-or-less theologically liberal churches, which are willing to share institutions with other such churches.

There are also broad Blaine Amendments, which more generically bar funding for any religiously affiliated institution—this being the sort of provision adopted in Missouri. Rather than arising only from narrow anti-Catholic prejudice, these provisions take theologically liberal anxieties about group religion a step farther, barring support for the full range of religiously-affiliated institutions. They thereby more consistently establish a theologically liberal vision of individual spirituality unimpeded by ecclesiastical authority.

Many judges have done their best to sanitize the Blaine Amendments. Rather than face up to the reality of prejudice and discrimination, they have suggested that the amendments are innocuous. Where the amendments bar funds for any “sectarian” institution, the judges have interpreted them to preclude funds for “religious” institutions. And having homogenized all of the amendments to express a general anti-ecclesiastical discrimination, the judges have understood this result to be areligious or “secular” and thus without prejudice or discrimination.

But even the amendments that generally bar funding for religious institutions are inescapably stuck in the mire of theological prejudice. The old animosity against the Catholic Church never entirely went away, but rather was generalized. Although hostility against the Catholic Church softened, it remained distinctively strong, and it served as the prototypical example of what was rejected in all churches. Thus, what changed when states adopted broad Blaine Amendments, and when judges interpreted “sectarian” to mean “religious,” was merely that another layer of prejudice was added—the core animosity toward the Catholic Church becoming the model for a more expansive hostility toward all churches.

At best, this is new prejudice in old bottles; in fact, the dregs of the old prejudice remain, topped off by the new.

Judges tend to miss all of this because they see religious divisions in terms of denominational differences, such as Anglican versus Baptist or, at most, Protestant versus Catholic. But what matters for the Blaine Amendments is another sort of religious difference: that introduced by theological liberalism.

European religion was traditionally fraught with divisions among different churches, each defined by its own distinctive doctrine. But the most profound division in American religion since the Founding has been the division between the theologically liberal and those who are theologically more orthodox. Theological liberalism has split one church after another—to the point that the theologically liberal in different churches often have more in common with each other than with the more orthodox in their own churches. Indeed, the theologically liberal attack on ecclesiastical authority has become the preeminent fact of American religious life, and as theological liberals became numerous enough to enjoy political power, they used Blaine Amendments to restrict not merely the Catholic Church, but other ecclesiastical institutions.

Rather than excuse the Blaine Amendments as expressions of areligious concerns, judges need to recognize that these amendments are products of theological animus. Nativists and other theological liberals allowed their fear of ecclesiastical institutions to lead them into theological warfare against the Catholic Church and sometimes against all ecclesiastical bodies, and the legal results are ugly. Far from merely discriminating between what is religious and what is not, the Blaine Amendments discriminate against Catholic and other ecclesiastical authority and thereby carry out theologically liberal animosities.

To be sure, states in many instances can reasonably choose not to fund churches. But when the Blaine Amendments narrowly single out “sectarian” institutions, or when, as in Missouri, they categorically exclude all ecclesiastically-affiliated institutions, they reveal theologically-driven discrimination.

The seriousness of the problem is revealed by the fact that, although Trinity Lutheran has come before the Supreme Court as a free exercise and equal protection case, the Blaine Amendments most centrally collide with the Establishment Clause. In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.

This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.

If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.

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