Seven of the nine Supreme Court justices agreed on Monday that neither the federal government nor state governments are allowed to treat private religious organizations with special disfavor just because they happen to have a religious identity. As the broad agreement among justices of diverse views in this case makes clear, it's about time.
Justices Steven Breyer and Elena Kagan joined the court's conservative bloc in ruling against the state government of Missouri for its refusal of a grant to Trinity Lutheran Church on the sole basis of its religious identity.
The case involved, of all things, the resurfacing of a playground. The state had set up a grant program to promote recycling and child safety at the same time. Organizations that purchased safe rubber playground surfaces made of recycled tires could apply to the state for a reimbursement grant. Trinity Lutheran qualified for such a grant and under the rules of the program should have been reimbursed.
But its application was denied because of the so-called Blaine Amendment in Missouri's constitution.
The Blaine Amendment refers to an odious anti-Catholic provision that exists in 38 state constitutions and was nearly added to the U.S. Constitution as part of a xenophobic political campaign in the 19th century. It is named after James Blaine, the Republican House Speaker whose 1884 presidential candidacy was undone by his outspoken antipathy toward what one of his supporters fatefully described as "rum, Romanism, and rebellion."
The Republican Party of Blaine's era encouraged such anti-Catholic provisions — and a Republican Congress forced many states to adopt them as a condition of statehood — in an effort to rally Protestant voters. These amendments' sole purpose was to limit the growth and influence of Catholic schools. They appealed to a widespread fear that papist indoctrination would overwhelm what was then the unmistakably Protestant character of public life. (This was long before prayer and religious instruction had been eliminated from public schools.) There is thus some irony in the fact that a lawsuit brought by a Protestant school should become the occasion for weakening them significantly.
Today, the original purpose of these discriminatory laws has been largely forgotten. But they remain an active subject of jurisprudence as teachers' unions rely upon them again and again as a thin excuse to strike down school choice programs.
Government must not take sides on matters of religion. The Constitution makes this quite clear. The framers intended this as a protection for the faithful from state interference. In their day, England's vigorous persecution of Catholic and Puritan recusants from the Church of England was still a fresh memory, and in fact official discrimination against Catholics continued in England for 40 years after the U.S. Constitution was ratified.
The First Amendment and the principle of separation of church from state saved our country from that fate. But it was certainly never intended as an excuse for the further discrimination that the Blaine amendments attempted to perpetrate. The court will soon have an opportunity to hear a case about school funding in Colorado that lets the justices go further in tearing down these antiquated and unjust laws.
Religious-based institutions, like other voluntary institutions, are good for society. They have historically done great good for education and aid to the poor, homeless and sick. For now, the Supreme Court has established that they at least deserve the same treatment as your average private non-religious school, homeowners association, or chess club. That seems like a simple proposition that any reasonable person can agree to.