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State/church separation, not anti-Catholic bias, reason for “no-aid” clauses

The compulsory support of religion is un-American.

Thomas Jefferson wrote in his iconic Statute for Religious Freedom that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”

Historically, our country has done a reasonably good job at protecting this freedom with provisions known as “no aid” clauses found in a majority of state constitutions. But that could all change with the Espinoza case currently before the U.S. Supreme Court. The case involves the “no aid” to religion clause found in Montana’s Constitution, and whether the state of Montana can be forced to support religious schools.

Christian Nationalists have long attacked these “no aid” clauses found in 37 state constitutions. (They are also known as the Blaine Amendments after 19th century Rep. James Blaine, who proposed one such federal amendment.) “No aid” clauses bar public funds from going to churches and church schools.

A phony but powerful argument against the “no aid” clauses is to label them “anti-Catholic,” in particular tying them to nativist movements in the late 19th century against the wave of Catholic immigrants. (Never mind that Blaine’s mother was Catholic!) In fact, the no aid principles date to the American founding, and have been supported by many Catholics.

Some of the six Catholic justices currently on the Supreme Court are apparently not among them. Justice Clarence Thomas made the anti-Catholic accusation years ago. During yesterday’s oral arguments in the Espinoza case, Justice Brett Kavanaugh claimed, “Well, they're certainly rooted in grotesque religious bigotry against Catholics.” Justice Samuel Alito was a bit more circumspect, but his point was clear: “Do you really want to argue that the reason why a lot of this popped up beginning, coincidentally, in the 1840s, at the time of the Irish potato famine, that had nothing to do with discrimination based on religion?”

Even the New York Times recently made this mistake, writing “no-aid provisions or Blaine Amendments . . . were driven initially by anti-Catholic bias.”

By alleging origins that are anti-Catholic, proponents of compulsory funding of religion are able to taint a principle that was sacred to our country long before Blaine was a glint in his Catholic mother’s eye.

Advocating for the separation of state and church, including “no aid” clauses, is not anti-religious bigotry. Once upon a time, the Supreme Court understood this point: “It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.”

The true purpose of these constitutional protections is not to discriminate against Catholics — or any believers, but to protect religious freedom, including for Catholics. The “no aid” provisions embody one of America’s founding principles: That taxing power of the government should not be used to coerce support of religion. Religious education, propagation, and worship should be the result of free and voluntary support given by the faithful.

The “no aid” clauses originated with our nation’s founding. New Jersey, Pennsylvania, Maryland, North Carolina and Virginia all began implementing the “no aid” principle and disestablishing religion in 1776, the year of American independence. Some states took longer to realize the serious problems with sponsoring or supporting religion, disestablishing up through the 1830s.

The heart of the Virginia Statute of Religious Freedom, adopted in 1786 and written by Jefferson, is replicated in many state constitutions: “No citizen shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” As states faced the challenges of a growing pluralistic society, including the challenge of providing a public education to all, they strengthened the “no aid” principle with legislation and constitutional amendments, including the so-called Blaine Amendments, from 1776 through the 1950s.

No aid clauses were applied to keep state and church separation, not to discriminate against Catholics. For instance, In New York, sectarian Protestant schools were denied public funding under the no-funding principle before the surge in Catholic schools and Catholic immigration. Other states followed a similar pattern. The history of no aid clauses in the Midwest — Michigan (1835), Wisconsin (1848), Indiana (1851), and Minnesota (1857) — shows that they were motivated not by anti-Catholic bigotry but by religious freedom and a desire to educate all citizens.. Each of these states adopted no aid clauses in their constitutions decades before Blaine’s federal amendment was proposed and when there were no “significant conflicts over parochial schools.”

Professor Steve Green, who briefed the Supreme Court on this history, summed it up: “There is little evidence that anti-Catholicism or disdain for Catholic schooling played a significant role in the development of the no-funding principle or in the enactment of many no-funding provisions prior to the Civil War.”

The “no aid” clauses of the 1870s and 1880s were partly a response to the Catholic Church demanding public funds for its religiously segregated schools. For a time, American Protestants wielded an unconstitutional privilege: using the public schools and taxpayer funds to promote their religion. Catholics understandably wanted the same privilege and challenged Protestant privilege. State legislators realized the solution to religious strife was to keep state and church separate, and keep public schools secular.

Notably, many of the earliest challenges of religion in public schools was brought by Catholics. For instance, in a memorable 1890 case, the Wisconsin Supreme Court ruled that the Wisconsin “no aid” clause prohibited bible readings in public schools:

The only object, purpose, or use for taxation by law in this state must be exclusively secular. There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution, and war, and all evil in the state, as religion. Let it once enter into our civil affairs, our government would soon be destroyed. Let it once enter into our common schools, they would be destroyed.

The federal Blaine Amendment was motivated partly by politics, but also by President Grant’s call for stronger state/church separation. Catholic University of America professor Sister Marie Carolyn Klinkhamer explains that the impetus for the federal Blaine Amendment was not just political (Blaine had presidential aspirations), but also at the urging of President Ulysses Grant. Grant delivered a speech one week before the amendment was introduced, issuing a clarion call to strengthen America’s secular foundations. It was not an attack on Catholicism — the Catholic World didn’t think so either — but an appeal to continue the secular work of the Founding Fathers:

Let us all labor to add all needful guarantees for the security of free thought, free speech, a free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color or religion. Encourage free schools and resolve that not one dollar, appropriated for their support shall be appropriated to the support of any sectarian schools. Resolve that neither the state nor nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan or atheistical dogmas. Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separate.

Free thought. Free speech. Free press. Advance religious freedom by leaving religion to the family, not the government. Let private schools be funded with private contributions. Keep state and church forever separate. These are core constitutional principles, not anti-Catholic sentiments. Grant focused on religious freedom and equality — no dogma, be it religious, atheist, or pagan, should be favored.

That is what the Freedom From Religion Foundation is fighting for. That is what it is feared the Supreme Court may, with a creative rewriting of history, overturn. The floodgates would be opened to raid public schools in order to pour tax dollars into religious schools that consider indoctrination, not education, their calling. And not just religious schools, but churches, mosques, and synagogues, too. That is not the America our Founders envisioned.

This statement is based on testimony FFRF’s Director of Strategic Response Andrew L. Seidel delivered and prepared for the Colorado Advisory Committee to the U.S. Commission on Civil Rights on the Colorado Constitution’s No Aid Clause. That full testimony can be read here.