Will a preschool kids’ playground turn out to be the path that leads to ending a historic form of discrimination against church-sponsored schools in America?
For the moment, the best answer to that question is: maybe. The question itself suddenly came alive in the wake of an important Supreme Court decision in June declaring that Missouri acted in a manner “odious to our Constitution” (the words are Chief Justice John Roberts’) in refusing money from a playground safety fund to a Lutheran church’s daycare and preschool only because of their link to the church.
The June 26 decision in Trinity Lutheran v. Comer was good news for religious interests. Potentially even better news was the Supreme Court’s announcement the following day that it was returning four other cases to the state supreme courts in Colorado and New Mexico to be reconsidered in light of Trinity Lutheran.
The three Colorado cases focus on an attempt by a school district to establish a tuition scholarship program for students attending nonpublic schools, some of them religious. The state high court said no.
At issue in the New Mexico case is a textbook lending program for nonpublic schools, some religious. That also drew a no from the state supreme court.
In both states, the court decisions were based on sections of the state constitutions barring that bar giving state funds for any purpose to churches. More than 35 other states have such provisions, collectively known as Blaine Amendments.
The name is that of James G. Blaine, a 19th century Speaker of the U.S. House of Representatives, who in 1875 proposed similarly amending the federal Constitution. His amendment failed, but similar amendments spread among the states in an era of widespread hostility to Catholic parochial schools.
Whatever the Colorado and New Mexico courts do now—and despite the remand, they could still reject the aid in question under their states’ Blaine Amendments —these cases almost certainly will be back before the Supreme Court in a year or two.
And it’s far from certain what the Supreme Court will do then. The court lined up 7-2 in Trinity Lutheran, with only Justices Sotomayor and Ginsburg voting against giving public funds to the church for its playground upgrade.
Perhaps significantly, however, Justice Robert went out of his way to add a footnote to his opinion stressing that it applied only to state funding for this obviously narrow purpose. Only two justices—Thomas and Gorsuch—took exception to that, arguing that the principles underlying the decision, in Gorsuch’s words, “do not permit discrimination against religious exercise—on the playground or anywhere else.”
In practice, what this means is that if the same nine justices were asked to consider broader forms of assistance, such as the school vouchers and textbooks involved in Colorado and New Mexico, the result could well be a 4-4 split, with the tie-breaking ninth vote resting, as in recent years it so often has, in the hands of Justice Anthony Kennedy.
But will the same nine justices be on the court in a couple of years? Or will, say, two have stepped down and been replaced by two new members? Then the result is anybody’s guess.
As the history of the Blaine Amendments shows, denying public assistance to church schools is a blot on the nation’s record with historical roots in 19th century anti-Catholic bigotry. Decisive corrective action is long overdue. If the path to that result lies through a school playground, so much the better. It’s high time.
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When the author noted only two dissents Ginsburg and Sotomayor I thought Sonia Sotomayor. Catholic in name only. The issue is nevertheless complex. It began with someone I much admire US Grant. “President Ulysses S. Grant (1869–77) in a speech in 1875 to a veteran’s meeting, called for a Constitutional amendment that would mandate free public schools and prohibit the use of public money for sectarian schools. Grant laid out his agenda for ‘good common school education.’ He attacked government support for ‘sectarian schools’ run by religious organizations, and called for the defense of public education ‘unmixed with sectarian, pagan or atheistical dogmas.’ Grant declared that ‘Church and State’ should be ‘forever separate.’ Religion, he said, should be left to families, churches, and private schools devoid of public funds” (Wikipedia). Grant who fought as an officer in the Mexican War wrote in his memoirs that the War was an immoral land grab by a powerful nation. Admirable. Not admirable was his sympathies with the Know Nothings, an anti immigrant anti Catholic political movement. The First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” references a politically established religion as was the case with the Church of England. Establishment is the key word. Catholicism is not the established religion of the US. Nor is any other religion. This idea of an absolute separation is false interpretation of the Amendment. At any rate what has changed since the day of US Grant and the Blaine Amendment, if not the cultural political integration of Catholicism within the Nation’s fabric. We are simply infinitely more accepted. The Supreme Court has five Catholic justices six prior to A Scalia’s death. And two Jews. In a majority Protestant Nation. Many Catholic schools on every level particularly parochial schools have large numbers of non Catholic students. Simply because they’re better schools. They offer viable education, discipline, and social values. Tax money’s collected from the general public for maintenance of school facilities support an integral part of the Nation’s education system. And has nothing to do with the “establishment of religion”.
And don’t forget– for all the intentions of U S Grant & Blaine, even public schools hung the Ten Commandments on their walls & had prayer, until the sixties or so.