Amicus Curiae Brief — Mitchell v. Helms

\ FILED

VW

AUG 19 1999

No. 98-1648

IN THE

Supreme Court of the United States

GUY MITCHELL, et ai.,

Petitioners,

v.

MARY L. HELMS, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE BECKET FUND FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

KEVIN J. HASSON*

ERIC W. TREENE

ROMAN P. STORZER

THE BECKET FUND FOR

RELIGIOUS LIBERTY

2000 Pennsylvania Ave.

Suite 3580

Washington, D.C. 20006

(202) 955-0095

Counsel for Amicus Curiae

*Counsel of Record

TABLE OF CONTENTS

LEGAL INQUIRY INTO A SCHOOL’S

“SECTARIAN” CHARACTER ORIGINATED

IN THE RELIGIOUS CONFLICTS OF THE

B. A Backlash Against 19th Century Irish and

East-European Immigration Led To A Variety of

THIS COURT SHOULD RECONSIDER ITS

ADOPTION OF THE “NO-AID-TO-

SECTARIAN-SCHOOLS” RHETORIC AS

AN ANALYTICAL CATEGORY. ........... 20

TABLE OF AUTHORITIES

CASES

Agostini v. Felton, 521 U.S. 203 (1997) ........... 5, 23

Billard v. Board of Education, 76 P. 422 (Kan. 1904)... 19

Board of Education of Central School Dist. No. 1 v.

Allen, 392. U.8. Z36 (GRE. er 22

Board of Education v. Minor, 23 Ohio St. 211 (1872)... 11

Boyette v. Galvin, No. 98-CV-10377 (D. Mass. filed

Mar. 3, 1996)... .. eee 2, 14

Church v. Bullock, 109 S.W. 115 (Tex. 1908) ......... 18

Columbia Union College v. Clark, 119 §. Ct. 2357

(1ST 60.6. dt eae eee 5, 23

Committee for Public Education and Religious Liberty

v. Nyquist, 413 U.S. 756 (1973) .... 0.0.2.6... 22

Commonwealth v. Board of Educ. of Methodist

Episcopal Church, 179 §.W. 596 (Ky. 1915) .... 19

Conrad v. City of Denver, 656 P.2d 662 (Colo. 1983) ... 17

Cook Cy. v. Chicago Industrial School for Girls, 18

NE. 183 GR A908) ik. i ek fee CAG 16

Derry Council, No. 40 , Junior Order United American

Mechanics v. State Council of Pennsylvania,

47 A. MB Oa, 000) ..6 6 ae 14

Evans v. Selma Union High School Dist., 222 P. 801

(Cok. 1900). os Ee eee 17

Everson v. Board of Educ., 330 U.S. 1 (1947) ......... 20

Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) . 22

Hackett v. Brooksville Graded School Dist., 87 S.W.

790 Gly, WOR. oid ke ee a

Hale v. Everett, 53 NH. 9 (1868) .............005. 6,7

Helms v. Picard, 151 F.3d 347 (5" Cir. 1998) ........ 2,5

Judd vy. Board of Education of Union Free School Dist.,

15 NE.2d 576 (N.Y. 1938) ............0000- 16

Kaplan v. Independent School Dist., 214 N.W. 18

Es OE Se a 18

Knowlton v. Baumhover, 166 N.W. 202 (lowa 1918) ae

Kotterman v. Killian, 972 P.2d 606 (Az. 1999), petition

for cert. filed, 67 U.S.L.W. 3671 (U.S. Apr. 26,

Dae toon See CE

Lemon v. Kurtzman, 403 U.S. 602 (1971) . I

McCormick v. Burt, 95 ll. 263 (1880) .......... ieee

Meek v. Pittenger, 421 U.S. 349(1975).......... 22

Moore v. Monroe, 20 N.W. 475 (lowa 1884) ....._—_.._ 18

Nevada ex rel. Nevada Orphan Asylum v. Hallock,

RTS 13, 16

North v. Board of Trustees of University of Illinois,

ee mB

O'Connor v. Hendrick, 77 N.E. 612 (N.Y. 1906) . 16

People ex rel. Ring v. Board of Education of Dist. 24,

ee ae

People ex rel. Vollmar v. Stanley, 255 P. 610

oe oN oa cow's 4,17

Rosenberger v. Rector and Visitors of the | Iniversity

of Virginia, 515 U.S. 819(1995) ........... 5,23

Smith v. Donahue, 195 N.Y.S. 715 (NY. App. Div.

OER et yy 16

Spiller v. Inhabitants of Woburn, 12 Allen 127

Ee a ee VEE 19

State ex rel. Finger v. Weedman, 226 N.W. 348

ER ee es e

State v. Scheve, 93 N.W. 169 (Neb. 1903)... ... i.4 wD

Stevenson v. Hanyon, 7 Pa. Dist. R. 585(1898)......... 7

Tash v. Ludden, 129 N.W.417(Neb. 1911) .......... 19

The Dublin Case, 38 N.H. 459 (1859) ......... a

Vidal v. Girard’s Ex'rs, 43 U.S. 127 (1844) ........... 8

Warde v. Manchester, 56 N.H. 508 (1876) ............ 7

Witters v. Washington Dep't of Services for the Blind,

Speen MN ONOED Gc Sk dire clee en... 5, 23

Zobrest v. Catalina Foothills School Dist., 509 U.S. |

SES 5, 23

CONSTITUTIONAL PROVISIONS

pate, Ga Bee TE GED. os Se a aE, erwin 13

De. Ce os ibn oct eke thd, REA 12

IED 5 oo 5 ds 0h Gare. a eee a 13

NN Pee ee COPE er 18

Ry GT is 1 Sok Fei ae CN eae 12

Mass. CONST. Amend Art XLVI... —«.......... 10

MAss. CONST. Amend. Art. XVIII.................. 10

Pi. CH, Se eas PESTS in de ten ti 12

DR BN os ov k's Seah ok we ok cas 13

of es. UR S| es eee i) Sieee a wee

AF. Gee. a ee ki eee cet eet pt ae 12

SS. Ge Be eee &. ind cc weet hts ec 13

WASH. CONST. Arts. IX § 4, Art I§ 11 .............. 13

STATUTES

Act of Feb. 22, 1889, 25 Stat. 676, ch. 180(1889) ..__. 13

Act of July 3, 1890, 26 Stat. L. 215 § 8, ch 656(1890)._. 13

Act of June 20, 1910, 36 Stat. 557 § 26(1910) ....._.. 13

Title | of the Elementary and Secondary Education Act

of 1965, 20 U.S.C. § 7301, efseg. ........... 2,5

MISCELLANEOUS

E.1.F. WILLIAMS, HORACE MANN: EDUCATIONAL

Sea iad Cs EX ai S wk x 7

Green, The Blaine Amendment Reconsidered, 36 AM. J.

LA ER: DEED «de decks paWeeeok as «4 vs 12

HORACE MANN, LIFE AND WORKS: ANNUAL REPORTS

OF THE SECRETARY OF THE BOARD OF

EDUCATION OF MASSACHUSETTS FOR THE

YEARS 1845-1848 (1891).................. 7,8

HUMPHREY J. DESMOND, THE A.P_A. MOVEMENT, A

i a are ag 8 ra te ie ae 15

JORGENSON, THE STATE AND THE NON-PUBLIC

SCHOOL, 1825-1925 (1987) .............. 10, 12

KINZER, AN EPISODE IN ANTI-CATHOLICISM (1964)... 14

Laycock, The Underlying Unity of Separation and

Neutrality, 46 EMORY L.J. 43 (1997)... 13,14

Lupu, 7he Increasingly Anachronistic Case Against

School Vouchers, 13 NOTRE DAME J. OF LAw,

Eruics & PuB. POL. 375(1999).............. 13

MICHAELSEN, PIETY IN THE PUBLIC SCHOOL (1970) _. 8, 11

OFFICIAL REPORT OF THE DEBATES AND PROCEEDINGS

IN THE STATE CONVENTION ASSEMBLED MAY 4™,

1853 TO REVISE AND AMEND THE CONSTITUTION

OF THE COMMONWEALTH OF MASSACHUSETTS,

IN THE

Supreme Court of the Hnited States

No. 98-1648

GUY MITCHELL, et al.,

Petitioners,

Vv

MARY L. HELMS, e¢ ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE BECKET FUND FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS

The Becket Fund for Religious Liberty respectfully

submits this brief amicus curiae in support of Petitioners

pursuant to Rule 37.3 of this Court.’ The Becket Fund is a

bipartisan and interfaith public-interest law firm that protects

‘All parties have consented to the filing of this brief.

The letter of consent of the Solicitor General accompanies

this brief, and consent letters from all other parties are on file

in whole or in part. No person or entity other than amicus, its

members, and its counsel made any monetary contribution to

the preparation or submission of this brief.

the free expression of all religious traditions. In Boyette v.

Galvin, No. 98-CV-10377 (D. Mass. filed Mar. 3, 1998), we

represent parents challenging Massachusetts’ 1854 “Anti-Aid”

Amendment to its constitution, adopted at the height of the

anti-Catholic and nativist “Know-Nothing” movement, on the

grounds that it was based on irrational animus and violates

our clients’ Equal Protection and First Amendment rights.

Our amicus brief traces the historical origins of the

principle barring aid to institutions that are “sectarian,” and

demonstrates how this concept grew out of the nativist and

anti-Catholic bigotry of the 19" and early 20" century.

Because of this focus, we believe our brief will complement,

and not duplicate, the briefs of the parties and thus prove

helpful to the Court in its resolution of this case.

SUMMARY OF THE ARGUMENT

In holding portions of a program under Chapter 2 of

Title I of the Elementary and Secondary Education Act of

1965, 20 U.S.C. § 7301, et seg., unconstitutional, the Court

of Appeals relied on the now-familiar determination that the

private schools involved in the neutral education program

were “sectarian.” Helms v. Picard, 151 F.3d 347, 374 (5"

Cir. 1998). There is good reason to doubt the continuing

validity of this type of analysis. To aid the Court in

reconsidering it, this brief sets forth the legal history of the

term “sectarian.”

The origins of the inquiry into a school’s “sectarian”

character are found not in the history of the Establishment

Clause, but in a dark period in our history when bigotry

sate Dae Wr ‘cularly Catholic immi ene

powerful force in state legislatures. To the policymakers in

the mid-19th century, “sectarian” did not mean the same thing

as “religious.” It was instead an epithet applied to those who

did not share the “common” religion taught in the publicly

funded “common” schools.

As the Catholic population in the United States grew,

“sectarian” took on an even more precise, and more

pejorative, meaning. In response to the waves of immigration

in tic 19" century, Nativist groups such as the Anti-Catholic

and anti-immigrant Know-Nothing Party grew in size and

political power. These groups sought to ensure the

ascendancy of their view of the common religion of the

United States in the common schools and keep out

“sectarian” competition, enacting measures such as requiring

the reading of the King James Bible in public schools, and

enacting measures barring any public funds going to

“sectarian” schools.

The “Blaine Amendment” to the Federal Constitution,

named after the notoriously Anti-Catholic presidential

candidate James G. Blaine who proposed the measure in

1874, would have prevented any government funds from

being used by “sectarian” (mainly Catholic) schools. The

measure failed in Congress by a narrow margin, but by the

early decades of the Twentieth Century, most states had either

adopted, or had forced upon them by their Enabling Acts,

similar provisions nick-named in Blaine’s honor. As the

Arizona Supreme Court recently observed, commenting on its

own “Blaine Amendment”, “The Blaine amendment was a

clear manifestation of religious bigotry, part of a crusade

manufactured by the contemporary Protestant establishment

to counter what was perceived as a growing Catholic

menace.” Kotterman v. Killian, 972 P.2d 606, 624 (Az.

1999) (citation omitted), petition for cert. filed, 67 U.S.L.W.

3671 (U.S. Apr. 26, 1999).

Court decisions of the late 19" and early 20" century

demonstrate well the targets of Blaine Amendments. They

routinely held that the prohibition on funding “sectarian”

religious, only schools with religions that conflicted with the

common Protestant hegemony. As one court observed, “It is

said that the King James Bible is proscribed by Roman

Catholic authority; but proscription cannot make that

sectarian whic; is not actually so.” People ex rel. Vollmar v.

Stanley, 255 P. 610, 617 (Colo. 1927); see also State v.

Scheve, 93 N.W. 169, 172 (Neb. 1903) (overruling motion for

rehearing) (constitutional prohibition against sectarian

instruction “cannot, under any canon of construction with

which we are acquainted, be held to Tean that neither the

Bible, nor any part of it, from Genesis to the Revelation, may

be read in the educational institutions fostered by the state.”).

When, following the incorporation of the Religion

Clauses against the States, this Court began to inquire into

whether government aid could go to “pervasively sectarian”

schools, it was not inventing a new analytical category. The

Court was instead borrowing a well-established one. Whether

a school was “sectarian,” and thus presumptively disqualified

from receiving state aid, was a question that had been asked

routinely for over a century, though not by the federal courts.

Whether a school was sectarian was the question traditionally

asked by the Nativist Movements of the Nineteenth Century

and the state Blaine Amendments they spawned.

As Justice Thomas has recently noted, the notion of

“pervasively sectarian” as an analytical category is becoming

increasingly isolated in this Court’s jurisprudence.

We no longer require institutions and

organizations to renounce their religious missions as a

condition of participating in public programs. Instead,

we have held that they may benefit from public

assistance that is made available based upon neutral,

secular criteria. [Agostini v. Felton, 521 U S. 203

(1997); Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995); Zobrest

v. Catalina Foothills School Dist., 509 U.S. 1 (1993),

Witters v. Washington Dep't of Services for the Blind,

474 U.S. 481 (1986)]. Furthermore, the application

of the “pervasively sectarian” test in this and similar

prohibited governments from discriminating in the

distribution of public benefits based upon religious

status or sincerity.

Columbia Union College v. Clark, 119 S. Ct. 2357, 2358

(1999) (mem.) (Thomas, J., dissenting from denial of

certiorari) (footnote and citation omitted)

In short, both the nature and the vocabulary of the

inquiry into a school’s “sectarian” character are ideas with a

past. They are outdated and offensive and should be

abandoned.

ARGUMENT

In holding portions of a program under Chapter 2 of

Title I of the Elementary and Secondary Education Act of

1965, 20 U.S.C. § 7301, et seq., unconstitutional, the Court

of Appeals relied on a determination that the private schools

involved in the neutral education program were “sectarian.”

Helms v. Picard, 151 F.3d 347, 374 (5 Cir. 1998). That

holding was based on this Court’s precedents denying aid to

“pervasively sectarian” institutions. We respectfully suggest

that the Court reexamine those precedents in light of both the

Court’s more recent cases and the history of the term

“sectarian.” Because we believe that others are fully briefing

the legal developments, this brief focuses on the relevant

history.

Be LEGAL INQUIRY INTO A SCHOOL’S

“SECTARIAN” CHARACTER ORIGINATED IN

THE RELIGIOUS CONFLICTS OF THE

NINETEENTH CENTURY

A. Nineteenth Century “Common Schools”

Inculcated Students with the Protestant

“c Religion.” Thus Distinguishi

Themselves From “Sectarian” Schools

Legal inquiry into a school’s “sectarian” or

“nonsectarian” character began in the mid-Nineteenth

Century, when those labels were terms of art. In the

northeast States, the birthplace of the “common school,” there

was an ongoing religious debate between the Unitarian and

Orthodox divisions of the Congregational faith. See, e.g.,

Hale v. Everett, 53 N.H. 9, 111 (1868) (“the great mass of

our people .. . were Congregationalists.... Such was their

Christianity and their Protestantism, as was that of most of the

New England states”). See also The Dublin Case, 38 N.H.

459 (1859) (describing the history of the Congregational

Church and the conflicts between the Unitarians and

Trinitarian/Orthodox in New England).

A desire to make peace between these factions,

together with the emerging principle of universal education,

led to the creation of “nonsectarian common schools,” first in

Massachusetts and then elsewhere. But “nonsectarian” in this

sense did not mean nonreligious. It meant schools that taught

ah Mace ble initially to all C ‘onali

and, later, to most Protestants. When Horace Mann

developed his system of common, nonsectarian schools, the

conflict he addressed was that between Orthodox and

Unitarian Congregationalists.’ E.1.F. WILLIAMS, HORACE

even in Maryland by a vast majority, elsewhere almost

unanimously, Protestants” Hale, 53 N.H. at 111 (quoting 2

Bancroft’s Hist. U.S. 456). See also Stevenson v. Hanyon, 7

Pa. Dist. R. 585, 589 (1898) (“Christianity is part of the

common law of this State [Pennsylvania]”); Warde v.

Manchester, 56 N.H. 508, 509 (1876) (“[T]he protestant

religion is regarded with peculiar favor, ... .”).

*Responding to the charges that he sought the removal

of religion, and the Bible in particular, from the common

schools, Mann issued a statement on “Religious Education” in

his Report on Education for 1948. HORACE MANN, LIFE AND

WORKS: ANNUAL REPORTS OF THE SECRETARY OF THE

BOARD OF EDUCATION OF MASSACHUSETTS FOR THE YEARS

1845-1848, 292-340 (1891):

But it will be said that this grand result in

practical morals is a consummation of

blessedness that can never be attained without

religion, and that no community will ever be

religious without a religious education. Both

these propositions I regard as eternal and

immutable truths.

Id. at 292. Thus, the “Father of Public Education” himself

vehemently denied that he “ever attempted to exclude

religious instruction from school, or to exclude the Bible from

school, or to impair the force of that volume.” /d. at 311.

7

MANN: EDUCATIONAL STATESMAN 266 (1937); see also R.

MICHAELSEN, PIETY IN THE PUBLIC SCHOOL 69 (1970)

(“Horace Mann scorned sectarianism. By that he meant

chiefly the sectarianism of the evangelical Protestant

denominations.”).

In the period before the great waves of Catholic

immigration were felt, even this Court itself presumed that to

be the definition of “sectarianism.” In Vidal v. Girard’s

Ex'rs, 43 U.S. 127 (1844), Justice Story asked rhetorically, in

response to the assertion that Christianity could not to be

taught by laymen in a college:

Why may not the Bible, and especially the

New Testament, without note or comment, be

read and taught as a divine revelation in the

college-its general precepts expounded, its

evidences explained, and its glorious principles

of morality inculcated? What is there to

prevent a work, not sectarian, upon the

general evidence of Christianity, from being

read and taught in the college by lay-teachers?

_... Where can the purest principles of

morality be learned so clearly or so perfectly as

from the New Testament?

Id. at 200 (emphasis added). Thus, the Court took ‘or

granted the proposition that, in 1844, the “common religion”

was not sectarian. Other religions were.

Instead, he describes the public school system at that time as

building “its morals on the basis of religion; it welcomes the

religion of the Bible.” /d Mann wanted religion in the

common schools—so long as it was of the “common,” “non-

B. A Backlash Against 19th Century Irish and

East-European Immigration Led To A Variety

of Official Manifestations of Anti-Catholic

Bigotry, Including the So-Called Blaine

Amendments, Directed at “Sectarian” Schools.

Between 1830 and 1870, the emergence of the public

school movement coincided with a surge of Irish, German and

against the immigrants fueled an anti-Catholic bigotry that

lasted until the early decades of the Twentieth Century. The

anti-immigration forces created the “Nativist” movement, a

Protestant reaction against Catholic participation in society,

particularly in the educational systems.

One of the most prominent, and earliest, nativist

groups was the Know-Nothing party, which “included in its

platform daily Bible reading in the schools.” Lemon v.

Kurtzman, 403 U.S. 602, 629 (1971) (citation omitted).

Abraham Lincoln wrote of that party:

“As a nation we began by declaring that ‘all

men are created equal.’ We now practically

read it, ‘all men are created equal, except

Negroes.’ When the Know-Nothings get

control, it will read ‘all men are created equal

except Negroes and foreigners and Catholics.’

When it comes to this, I shall prefer emigrating

to some country where they make no pretense

of loving liberty.”

Letter from Abraham Lincoln to Joshua Speed (Aug. 24,

1855), reprinted in 2 THE COLLECTED WORKS OF ABRAHAM

LINCOLN 320, 323 (R. Basler ed., 1953).

The Know-Nothings gained control of both houses of

the legislature and the governorship of Massachusetts in

1854, JORGENSON, THE STATE AND THE NON-PUBLIC

SCHOOL, 1825-1925 at 88 (1987), and quickly went .. work

implementing their agenda. They passed a law requiring the

reading of the King James Bible in the “common” schools and

established a “Nunnery Investigating Committee.” /d. The

Know-Nothings also adopted an amendment to the

Massachusetts Constitution barring any part of the common

school fund to be “appropriated to any religious sect for the

maintenance exclusively of its own school.” MAss. CONST.

Amend. Art. XVIII (superseded by MAss. CONST. Amend.

Art. XLVI). The amendment’s proponents were open about

their motives:

"Sir, I want all our children, the children of our

Catholic and Protestant population, to be

educated together in our public schools. And

if gentlemen say that the resolution has a

strong leaning towards the Catholics, and is

intended to have special reference to them, I

am not disposed to deny that it admits of such

interpretation. I am ready and disposed to say

to our Catholic fellow-citizens: "You may

come here and meet us on the broad principles

of civil and religious liberty, but if you cannot

meet us upon this common ground, we do not

ask you to come."

OFFICIAL REPORT OF THE DEBATES AND PROCEEDINGS IN THE

STATE CONVENTION ASSEMBLED MAY 4™, 1853 TO REVISE

AND AMEND THE CONSTITUTION OF THE COMMONWEALTH OF

MASSACHUSETTS, Vol II at 630 (Mr. Lothrop).

The development of this “lowest common

10

denominator” Protestantism also led to an anomalous, but

telling battle in Cincinnati between the “common religionists”

and a group of Catholics, Jews and freethinkers that opposed

Protestant devotional Bible‘ reading. See Board of Education

v. Minor, 23 Ohio St. 211 (1872). Protestant opposition to

the removal of their Bible from the public schools was fierce

and clearly anti-Catholic. See MICHAELSEN at 118 (“the

Dutch Reformed Christian Intelligencer denounced the

Cincinnati board’s action as a move to ‘hand the public

schools over to Pope, Pagan, and Satan.””’)

Likewise, in New York City the Public School

Society, which was supported by tax funds, included

“nonsectarian” religious instruction in its curriculum. See

Lemon v. Kurtzman, 403 U.S. 602, 628 (1971) (Douglas, J,

concurring) (“Early in the 19th century the Protestants

obtained control of the New York school system and used it

to promote reading and teaching of the Scriptures as revealed

in the King James version of the Bible.”); MICHAELSEN at 85

(“But in certain practices—such as the use of the King James

version of the Bible and certain other literature—the society

gave a definite Protestant and even anti-Catholic tone to

education under its direction.”). The ensuing half-century

battle eventually led to the adoption, at the Constitutional

Convention of 1894, of a so-called “Blaine Amendment ”

Blaine Amendments take their name from

Representative James G. Blaine, who in 1875, introduced in

‘See also State ex rel. Finger v. Weedman, 226 N W

348, 351 (S.D. 1929) (“The King James version is a

translation by scholars of the Anglican church bitterly

opposed to the Catholics, apparent in the dedication of the

translation, where the Pope is referred to as ‘that man of

sin.””).

the U.S. House of Representatives a proposed constitutional

amendment that would have barred states from giving school

funds to sectarian schools.’ After Blaine’s amendment

barely failed in the Congress’®, state after state either

voluntarily adopted similar “Blaine Amendments” to their

constitutions,’ or were forced by Congress to enact such

*JORGENSON, THE STATE AND THE NON-PUBLIC

SCHOOL, 1825-1925 at 138-139 (1987). The amendment

read

No State shall make any law respecting an

establishment of religion, or prohibiting the

free exercise thereof, and no money raised by

taxation in any State for the support of public

schools, or derived from any public fund

therefor, nor any public lands devoted thereto,

shall ever be under the control of any religious

sect, nor shall any money so raised or lands so

devoted be divided between religious sects or

denominations

ld.

*The measure passed the House | 80-7 but fell four

votes short of the Senate. Steven K. Green, Zhe Biaine

Amendment Reconsidered, 36 AM. J. LEGAL HIST. 38, 38

(1992).

"See, e.g., N.Y. CONST. Art. XI § 3 (adopted 1894);

DeL. CONST. Art. X § 3 (adopted 1897), Ky. CONST. § 189

(adopted 1891), Mo. CONST. Art. IX § 8 (adopted 1875)

12

Articles as a condition of their admittance into the Union."

There were no illusions about the purpose of such

amendments: “{C]Jontemporary sources labeled the

amendment part of a plan to institute a general war against the

Catholic Church.” Kotterman, 972 P 2d at 624 (citation

omitted);” Nevada ex rel. Nevada Orphan Asylum v.

"See, e.g., Act of Feb. 22, 1889, 25 Stat. 676, ch. 180

(1889) (enabling legislation for South Dakota, North Dakota,

Montana and Washington), Act of June 20, 1910, 36 Stat.

557 § 26 (1910) (enabling act for New Mexico and Arizona),

Act of July 3, 1890, 26 Stat. L. 215 § 8, ch. 656 (1890)

(enabling legislation for Idaho), S.D. Const. Art. VIII § 16,

N_D. CONST. Art. 8, § 5; MONT. CONST. ART. X § 6; WASH.

Const. Arts. [IX § 4, Art. I § 11; Ariz. Const. Art. [IX § 10,

IDAHO CONST. Art. X § 5.

°A modern awareness of this history is reemerging,

The Protestant paranoia fueled by waves of

Catholic immigration to the U_S., beginning in

basis of a stable constitutional principle. And

the stability of the principle has been

undermined by the amelioration of those

concerns. From the advent of publicly

supported, compulsory education until very

recently, aid to sectarian schools primarily

meant aid to Catholic schools as an enterprise

to rival publicly supported, essentially

Protestant schools.

Lupu, 7he /ncreasingly Anachronistic Case Against School

Vouchers, 13 NOTRE DAME J. OF LAW, ETHICS & PUB. POL.

375, 386 (1999); Laycock, The Underlying Unity of

13

Hallock, 16 Nev. 373, 385 (1882) (“The framers of the

[Nevada] constitution undoubtedly considered the Roman

Catholic a sectarian church.”).

effort. In 1875, President Grant spoke of the Catholic Church

as a source of “superstition, ambition and ignorance.”

President Ulysses S. Grant, Address to the Army of

Tennessee at Des Moines, lowa (quoted in Laycock, 46

EMorY LJ. at 51). Institutions were formed to fight Catholic

interference with the Protestant public school system. See

Derry Council, No. 40 , Junior Order United American

Mechanics v. State Council of Pennsylvania, 47 A. 208, 209

(Pa. 1900) (purposes of the Junior Order of United American

Mechanics of the United States of North America included

“to maintain the public-school system of the United States,

and to prevent sectarian interference therewith, to uphold the

reading of the Holy Bible therein”). A succession of anti-

Catholic organizations continued to oppose Catholic

education and influence, using the various tools of the state

legislature, Congress, and the judiciary. In the 1890s, the

in inciting anti-Catholic hatred. KINZER, AN EPISODE IN

ANTI-CATHOLICISM 139 (1964) (“For good or bad, accurately

or not, its name was well known and its initials identified

Separation and Neutrality, 46 EMORY L.J. 43, 50 (1997)

(“[{T]}he nineteenth century movement was based in part on

premises that were utterly inconsistent with the First

Amendment. Although there were legitimate arguments to be

made on both sides, the nineteenth century opposition to

funding religious schools drew heavily on anti-Catholicism.’’).

See also Kotterman, 972 P.2d at 624-25, Boyette v. Galvin,

No. 98-10377 (D. Mass. filed Mar. 3, 1998) (challenge to

state’s anti-sectarian constitutional provision).

14

almost any activity or proposal that could by any stretch of

the imagination be called anti-Catholic.”).'° Even the

cartoonists at Harper's Weekly put in their two cents. One

example, out of a great many, is reproduced in the appendix

to this brief.

C. Nineteenth and Early Twentieth Century State

C Litigation Reinforced the Disti

Between “Common” and “Sectarian” Schools.

The Blaine Amendments resulted in a wave of state-

“Oath No. Four of the APA began:

I do most solemnly promise and swear that |

will always, to the utmost of my ability, labor,

plead and wage a continuous warfare against

ignorance and fanaticism, that | will use my

utmost power to strike the shackles and chains

of blind obedience to the Roman Catholic

Church from the hampered and bound

consciences of a priest-ridden and church-

oppressed people; that I will never allow any

one, a member of the Roman Catholic Church,

to become a member of this order, I knowing

him to be such; that I will use my influence to

promote the interest of all Protestants

everywhere in the world that I may be, that |

will not employ a Roman Catholic in any

capacity if I can procure the services of a

Protestant.

HUMPHREY J. DESMOND, THE A.P.A. MOVEMENT, A SKETCH

36 (1912).

15

“sectarian” schools were unable to share in neutral education

programs benefitting the “common” schools. Blaine

frequently used to strike down programs such as bus

transportation for parochial school students, see, e.g., Judd v.

Board of Education of Union Free School Dist., 15 N.E.2d

576 (N.Y. 1938), payment for orphans at a Catholic asylum,

Nevada ex rel. Nevada Orphan Asylum v. Hallock, \6 Nev.

373 (1882), payment for tuition at an “industrial school for

girls,” Cook Cy. v. Chicago Industrial School for Girls, \8

N_E. 183 (Ill. 1888), and provision of textbooks and other

supplies for parochial school students, Smith v. Donahue, 195

NYS. 715 (N.Y. App. Div. 1922).

Meanwhile, Catholics who happened to teach in the

public schools were forbidden to wear religious garb.

O'Connor v. Hendrick, 77 N_E. 612 (N.Y. 1906). And when

Catholic children attending public schools complained about

the Protestant doctrine taught there, their charges went

unanswered by the courts. While the Catholic Church forbade

its faithful from reading the King James version of the Bible,"’

'' As the California Supreme Court described the

religious differences between the King James (Protestant) and

Douay (Catholic) versions of the Bible:

The Douai version is based upon the text of

the Latin Vulgate, the King James version on

the Hebrew and Greek texts. There are

variances in the rendering of certain phrases

and passages. The Douai version incorporates

the Apocrypha, which are omitted from the

texts of the Testaments in the King James

version.

16

courts continued to hold that the reading of that translation

was not sectarian instruction.’ See People ex rel. Vollmar v.

Stanley, 255 P. 610, 617 (Colo. 1927) (“It is said that King

James Bible is proscribed by Roman Catholic authority, but

proscription cannot make that sectarian which is not actually

aa City of Denver, 656 P.2d 662

ot '

Other courts were more candid about their intent to

keep Protestant religious instruction in the public schools, and

“sectarian” ideas out:

The plaintiff's position is that, by the use of the

school-house as a place for reading the Bible,

songs, it is made a place of worship, and so his

children are compelled to attend a place of worship,

and he, as a tax-payer, is compelled to pay taxes for

building and repairing a place of worship.

Evans v. Selma Union High School Dist., 222 P. 801, 802-03

(Cal. 1924). See also State ex rel. Finger v. Weedman, 226

N.W. 348, 350-53 (S.D. 1929) (discussing conflict between

People ex rel. Ring v. Board of Education of Dist. 24, 92

NE. 251, 254 (Ill. 1910) (“Catholics claim that there are

cases of willful perversion of the Scriptures in King James’

translation.”).

"The Bible was read devotionally, not simply used for

its literary or historical merit, as it is today in some public

schools. See State ex rel. Finger v. Weedman, 226 N.W. 348

(S.D. 1929) (“[W]e emphasize that in our opinion the reading

of the Bible and repeating of the Lord’s Prayer without

comment in opening exercises is necessarily devotional.”’).

17

_... The object of the provision [IOWA

CONST. art. 1, § 3], we think, is not to prevent the

casual use of a public building as a place for offering

prayer, or doing other acts of religious worship, but to

prevent the enactment of a law whereby any person

can be compelled to pay taxes for building or repairing

any place designed to be used distinctively as a place

of worship.

_... Poss ly, the plaintiff is a propagandist,

and regards himself charged with a mission to destroy

the influence of the Bible. Whether this be so or not,

it is sufficient to say that the courts are charged with

no such mission.

Moore v. Monroe, 20 N.W. 475, 475-76 (lowa 1884).

Ironically in a later decision, that court enjoined a school

district from providing funds to a public school operating in

the same building as a Catholic parochial school—while

explicitly reaffirming its decision in Moore. Knowlton v.

Baumhover, 166 N.W. 202, 214 (Iowa 1918). See also

Kaplan v. Independent School Dist., 214 N.W. 18, 20 (Minn.

1927) (in upholding Bible reading: “We are not concerned

with nice distinctions between sects, nor as to how among

them the different authorized versions of the Bible are

regarded.”).

The claims of a group of Catholics and Jews against a

public school board which conducted religious exercises

including the reading of the King James Bible and recitation

of the Lord’s Prayer were dismissed when the Texas Supreme

Court held that such exercises did not render the school

sectarian. Church v. Bullock, 109 S.W. 115, 118 (Tex. 1908)

(“Christianity is so interwoven with the web and woof of the

state government that to sustain the contention that the

18

Constitution prohibits reading the Bible, offering prayers, or

singing songs of a religious character in any public building of

the government would produce a condition bordering upon

moral anarchy.”). The Kansas Supreme Court justified its

holding that the reading of the Lord’s Prayer’’ and the

Twenty-Third Psalm did not constitute “sectarian or religious

doctrine” by stating that the public schools had an obligation

to teach morals and ideals to its students, and “the noblest

ideals of moral character are found in the Bible.” Billard v.

Board of Education, 76 P. 422, 423 (Kan. 1904). And daily

religious services at a Methodist College were held by the

Kentucky Court of Appeals not to constitute “sectarian

instruction.” Commonwecith v. Board of Educ. of Methodist

Episcopal Church, 179 $.W. 596, 598 (Ky. 1915). See also

Hackett v. Brooksville Graded School Dist., 87 §.W. 792,

793 (Ky. 1905); State v. Scheve, 93 N.W. 169, 172 (Neb.

1903) (overruling motion for rehearing) (constitutional

prohibition against sectarian instruction “cannot, under any

canon of construction with which we are acquainted, be held

to mean that neither the Bible, nor any part of it, from Genesis

to the Revelation, may be read in the educational institutions

fostered by the state.”); Tash v. Ludden, 129 N.W. 417, 421

(Neb. 1911) (“This is a Christian country, Nebraska is a

Christian state, and its normal schools are Christian schools,

not sectarian, nor what would be termed religious schools, . .

..”) (emphasis added).

These requirements were enforced. McCormick v.

Burt, 95 Ill. 263 (1880) (affirming judgment against Catholic

plaintiff who was suspended for not observing Bible reading

rule); Spiller v. Inhabitants of Woburn, 12 Allen 127 (Mass.

1866) (court upheld student’s “exclusion” from school for

"See Ring, 92 N_E. at 254 (“The Lord’s Prayer is

differently translated in the two versions.”).

19

refusing to bow her head during public school prayer). Cf

North v. Board of Trustees of University of Illinois, 27 ™.E.

54 (Ill. 1891) (mandatory chapel exercises, the avoidance of

which resulted in the expulsion of the Plaintiff from the State

university, did not violate the Illinois constitution).

In short, the common schools could be as religious as

they wanted, so long as the religion in question was

“common.” It was only “sectarian” schools that could not

receive public funds.

I. THIS COURT SHOULD RECONSIDER ITS

ADOPTION OF THE “NO-AID-TO-SECTARIAN-

SCHOOLS” RHETORIC AS AN ANALYTICAL

CATEGORY.

Following the incorporation of the Religion Clauses

against the States, this Court began examining whether State

aid to religious schools and religious school students was

constitutional under the First Amendment. The effort began in

Everson v. Board of Educ., 330 U.S. 1 (1947), at a time when

the “common” public schools were still flourishing. The

rhetoric of challenging aid to “sectarian” institutions—the

prohibited category under state Blaine Amendments—was

taken up, perhaps uncritically, into First Amendment

litigation. *

‘It is interesting that the challenged aid to parochial

school students in Everson involved a program in New Jersey,

the constitution of which had an Establishment-like Clause, a

Conscience Clause and other provisions, but no Blaine

Amendment or other similar anti-sectarian language in its

constitution. Thus, in order to challenge the transportation

20

In Lemon v. Kurtzman, the Court struck down

legislation in Rhode Island and Pennsylvania permitting salary

supplements to parochial school teachers in order to bring

their wages closer to public school teachers. 403 U.S. 602

(1971). The opinion focused on the “sectarian” character of

the recipient rather than on the purpose of the laws to

improve educational opportunities for all children, not merely

those in public schools. /d. at 615 (“The school buildings

contain identifying religious symbols such as crosses on the

either in the classrooms or hallways.”). Justice Douglas’

concurrence was more blunt:

In the parochial schools Roman Catholic

indoctrination is included in every subject.

History, literature, geography, civics, and

science are given a Roman Catholic slant. The

whole education of the child is filled with

propaganda. That, of course, is the very

purpose of such schools, the very reason for

going to all of the work and expense of

maintaining a dual school system. 7heir

purpose is not so much to educate, but to

indoctrinate and train, not to teach Scripture

truths and Americanism, but to make loyal

Roman Catholics. The children are

regimented, and are told what to wear, what to

do, and what to think.

Id. at 635 n.20 (quoting L. BOETTNER, ROMAN CATHOLICISM

program at issue, it was necessary for the plaintiffs in that

case to urge upon the Court a federal prohibition against

neutral aid on the grounds that the students receiving the aid

attended a category of disqualified, i.e., sectarian, schools.

21

360 (1962)) (emphasis added); see also Board of Education

of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 251

(1968) (Black, J., dissenting) (“The same powerful sectarian

religious propagandists who have succeeded in securing

passage of the present law to help religious schools carry on

their sectarian religious purposes can and doubtless will

continue their propaganda, looking toward complete

domination and supremacy of their particular brand of

religion.”) (footnote omitted)).

Aid directly to students has also repeatedly been

struck down as unconstitutional simply because the funds

would be used to support “sectarian institutions.” See

Committee for Public Education and Religious Liberty v.

Nyquist, 413 U.S. 756, 783 (1973) (partial reimbursement of

private school expenses and tax deduction invalid because the

“effect” was “to provide desired financial support for

nonpublic, sectarian institutions”); Meek v. Pittenger, 421

U.S. 349, 366 (1975) (upholding textbook loans; striking

down other auxiliary services and instructional aids as aid to

“religion-pervasive institutions.”); Grand Rapids School Dist.

v. Ball, 473 U.S. 373, 385 (1985) (“Given that 40 of the 41

schools in this case are thus ‘pervasively sectarian,’ the

challenged public-school programs operating in the religious

schools may impermissibly advance religion . . . .”), id. at 397

(“The state-paid instructors, influenced by the pervasively

sectarian nature of the religious schools in which they work,

may subtly or overtly indoctrinate the students in particular

religious tenets at public expense.”’).

This Court’s more recent cases focus not on the

character of the institution a child attends but on the character

of the decision to provide aid. As Justice Thomas has

recently noted, this leaves the notion of “pervasively

sectarian” as an analytical category increasingly isolated.

22

We no longer require institutions and

organizations to renounce their religious missions as a

condition of participating in public programs. Instead,

we have held that they may benefit from public

assistance that is made available based upon neutral,

secular criteria. [Agostini v. Felton, 521 U.S. 203

(1997), Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995), Zobrest

v. Catalina Foothills School Dist., 509 U.S. 1 (1993),

Witters v. Washington Dep't of Services for the Blind,

474 U.S. 481 (1986)]. Furthermore, the application

of the “pervasively sectarian” test in this and similar

cases directly collides with our decisions that have

prohibited governments from discriminating in the

distribution of public benefits based upon religious

status or sincerity.

Columbia Union College v. Clark, 119 S. Ct. 2357, 2358

(1999) (mem.) (Thomas, J., dissenting from denial of

certiorari) (footnote and citation omitted). We respectfully

suggest that it is time to abandon the term “sectarian.” It is an

unhelpful analytical category and an epithet with a

reprehensible past.

23

CONCLUSION

For the foregoing reasons the judgment of the Court

of Appeals should be reversed.

Respectfully submitted,

KEVIN J. HASSON*

Eric W. TREENE

ROMAN P. STORZER

THE BECKET FUND

FOR RELIGIOUS LIBERTY

2000 Pennsylvania Avenue

Suite 3580

Washington, D.C. 20006

Counsel for Amicus Curiae

*Counsel of Record

August 19, 1999

24

Se ee eS ne ee

a ee | ~

“

Oe ee

2 WAAIY NVOEMGWY AML

= ——_

: - - a .

——— < . —

- —

—so ~ — aS

s

r

|

5

)