Some Supreme Court opinions are weightier for moral and historical purposes rather than for controlling legal precedent. In a key Supreme Court case upholding a Montana school-choice program, Justice Samuel Alito wrote a concurring opinion of particular moral and historical weight.
First, Alito joined, in full, the main majority opinion written by Chief Justice John Roberts. It held that a state-sanctioned (and indirectly state-financed) scholarship program can be used by families to send their children to faith-based schools as well as ones without any faith affiliation. To deny that option, Roberts wrote, would be to discriminate unconstitutionally against people and institutions of faith in general.
Alito, however, also wrote separately to make his additional points. He explained that the Montana state constitutional amendment at issue, which lower courts had used to invalidate the school-choice program, had its roots in a fiercely anti-Catholic national movement in the 1800s that included major involvement by the Ku Klux Klan.
The Montana amendment and those like it in at least 37 other states were directly modeled after a proposed national constitutional amendment that almost was approved by the U.S. Congress. Called “Blaine amendments” after their powerful congressional sponsor, these state constitutional provisions were adopted in response to a wave of immigration of mostly Catholic refugees from Ireland and elsewhere in Europe.
As most public schools at the time included daily readings from the King James Bible, embraced by Protestants but not Catholics (or Jews), Catholics who objected to Protestant “indoctrination” set up parochial schools of their own. As anti-Catholic riots swept the country, Catholic schools became particular targets.
Wrote Alito:
This entire anti-Catholic movement, including the Blaine amendments, was morally vile. One need not be Catholic to see that rank bigotry of this sort is objectionable. Yet, that bigotry was at the very heart and root of Blaine amendments such as the Montana provision at issue in this case.
Against that bigotry, a large list of outside groups filed friend-of-the-court legal briefs urging the Supreme Court to jettison Montana’s Blaine amendment — and thus allow the scholarship program to continue. Most of those groups were not Catholic, yet at least 20 of them emphasized the anti-Catholic bigotry that originally gave rise to the amendment.
If the Supreme Court is to take the Blaine laws’ initial intent into account (even if some school-choice opponents try to argue that the effect of them is no longer unconstitutionally discriminatory against a particular denomination), then that’s all the more reason to find that they violate the First Amendment to the U.S. Constitution.
The court’s job is not to determine the morality of cases before them, but to apply the Constitution as written. Still, when the Constitution and simple moral grounding both argue in favor of the same result, the court’s decision to that effect is particularly welcome. Alito’s concurrence shows why this result is welcome indeed.
