# Amicus Curiae Brief — Zelman v. Simmons-Harris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0468%3A30

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 976

## Text

Supreme Court, U.S.
FILED

NOV 9 2001

IN THE | OFFICE OF THE CLERK

Supreme Court-of the Anited States
(aA) (90 (a)
Nos. 00- Pst 00-1 777, 00-1779.

SUSAN TAVE ZELMAN, et al,
Petitioners,
v.

DORIS SIMMONS-HARRIS, et ai.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

BRIEF OF THE BECKET FUND FOR
RELIGIOUS LIBERTY AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS

PROF. RICHARD GARNETT KEVIN J. HASSON*
NOTRE DAME LAW SCHOOL ERIC W. TREENE
Notre Dame, Indiana 46556 ROMAN P. STORZER
(219) 631-6981 ANTHONY R. PICARELLO, JR.
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1350 Connecticut Ave., N.W.

Suite 605
Counsel for Amicus Curiae Washington, D.C. 20036
*Counsel of Record (202) 955-0095

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........cccccceeceeeceseeseeneeesensennennens ili
INTEREST OF THE AMICUS ........::ccsccceeceessereeseeeeeeeeneenenennes l
SUMMARY OF THE ARGUMENT ............:ccccsseseseeneeneneneees 2
ARGUMENT ........ccccccscscsesssosecssessscceecseseseessees monsiieeanintenvewvtiiots 5

I. THE SPECIAL TREATMENT OF PRIMARY AND
SECONDARY SCHOOLS ARTICLULATED IN
SOME OF THIS COURT’S ESTABLISHMENT
CLAUSE CASES IS UNSOUND AND OWES
MORE TO BYGONE PREJUDICES AND FEARS
THAN TO THE COMMANDS OF THE FIRST

A. This Court Has Often Treated Aid Involving
Primary and Secondary Schools as a Special
Analytical Category. .........:ssssesseseeeeeeeeeneenees 5

B. This Court’s Treatment of Aid to Students in
Primary and Secondary Religious Schools as
an Especially Suspect Category of Aid is
Rooted in an Erroneous Historical Narrative..8

G. The Special Treatment of Aid to Primary and
Secondary Religious Schools in the
Nineteenth Century was a Manifestation of
Nativist Bigotry and an Effort to Maintain the
Nondenominational Protestant Character of
the Public Schools. ..............:ccsssceseseeeeeeeeneees 14

& Nineteenth Century “Common

Il.

CONCLUSION

Schools” Inculcated Students with the
Protestant “Common Religion,” Thus
Distinguishing Themselves From

Nativist Hostility to Irish and East-
European Immigrants and Their
Religions Produced Fierce, Organized
Opposition to “Sectarian” Schools... 17

Nineteenth and Early Twentieth
Century State Court Litigation
Reinforced the Distinction Between
“Common” and “Sectarian” Schools..23

THIS COURT SHOULD EXAMINE THE
CLEVELAND SCHOOL CHOICE PROGRAM
AFRESH, UNENCUMBERED BY A POPULAR
BUT FALSE NARRATIVE. ..........ccccccsesesseseneeeteneees 28

TABLE OF AUTHORITIES

Cases
Agostini v. Felton, 521 U.S.203 (1997) .0.......ccccccccceeeseeeeee 3,7
Aguilar v. Felton, 473 U.S. 402 (1985) .0.......ccccccccceeeseeeneeeees 7
Billard v. Board of Educ., 76 P. 422 (Kan. 1904)............... 26
Board of Educ. v. Minor, 23 Ohio St. 211 (1872) .............. 20
Boyette v. Galvin, No. 98-CV-10377 (D. Mass. filed Mar. 3,
Sita cctuintnteieetineninaiihiesiisinantantaniataibeissmenseatiiigainediatitnets 2
Church v. Bullock, 109 S.W. 115 (Tex. 1908).................... 26
Commonwealth v. Board of Educ. of Methodist Episcopal
Chtarcht, 179 S..W.. S96 Cy. 1915S) ..cccccccecccesecsescsscsssccese 26
Conrad v. City of Denver, 656 P.2d 662 (Colo. 1983)....... 24
Cook Cy. v. Chicago Indust. Sch. for Girls, 18 N.E. 183 (Ill.
Sia hsctoveriaieianesntenceatiancetibseonciasdiinidanspaanasiabasnaiatiaaiaig tment 23

Derry Council, No. 40, Junior Order United American
Mechanics v. State Council of Pennsylvania, 47 A.208

FE Biel eoesicnidistastinnicininciidnseiabanitatiatiesitistmsiapenaniatitinie 22
Evans v. Selma Union High Sch. Dist., 222 P. 801 (Cal

ESR SS eae ne ee eee Nee 24
Everson v. Board of Educ., 330 U.S. 1 (1947).............. 27, 28
Hackett v. Brooksville Graded Sch. Dist., 87 S.W.792-(Ky.

ii ictdibiniattenianctigtestanariidenatiidibianaedeitcenninaiptulendnutiia 26
Hale v. Everett, 53 N.H. 9 (1868) ............:cccccccceeseeeseeeeeeees 14
Kaplan v. Independent Sch. Dist., 214 N.W. 18

NS Wiel erettniistinnsutinnnsieeediettianenbiigsbinmemendetaiee 25
Knowlton v. Baumhover, 166 N.W. 202 (lowa 1918). = 25
Lemon v. Kurtzman, 403 U.S. 602 (1971) ..............0.0 passim
McCollum v. Board of Educ. 333 U.S. 203 (1948).....3, 4, 12
McCormick v. Burt, 95 Ul. 263 (1880)............cccccccceeeeeeeees 27
Mitchell v. Helms, 120 S. Ct. 2530 (2000)................... passim
Moore v. Monroe, 20 N.W. 475 (lowa 1884) .................... 25
Mueller v. Allen, 463 U.S. 388 (1983) ..........c.ccec0e0 2, 5, 6, 7

Nevada ex rel. Nevada Orphan Asylum v. Hallock, 16

a ron 21, 23
North v. Board of Trustees of Univ. of Illinois, 27 N.E. 54
GE Ci eiiestitentsenstinsatnincatinnsctsntygnttaniiticiingtaimasaids 27
People ex rel. Ring v. Board of Educ.f Dist. 24,92 N.E. 251
Gk FE wentumntcanidetnsclatagmnictaientiiideiaatenpimadtiniees 24, 26
Roemer v. Board of Pub. Works of Md., 426 U.S. 736,
rp nitehanteciintidintytihdescnnrengapiitagtaitaininpaiiaabiiatriaaadiniastitasintiain 7

Smith v. Donahue, 195 N.Y.S. 715 (N.Y. App. Div. 1922)23
Spiller v. Inhabitants of Woburn, 12 Allen 127 (Mass.

Sai cpaticidneprencnnepiitihiniipinaliianemstitincimneninenniniaigediiinegne: 27
State ex rel. Finger v. Weedman, 226 N.W. 348 (S.D.

I crinecuctisiniittiadienepepaiatiiniadtigpentneatepnstninattucamtsiiaianes 26
Stevenson v. Hanyon, 7 Pa. Dist. R. 585 (1898)................. 15
Tash v. Ludden, 129 N.W. 417 (Neb. 1911) ............0.cc0c0000e 27
The Dublin Case, 38 N.H. 459 (1859) ..........ccccceecseeeeeeenee 14
Tilton v. Richardson, 408 U.S. 672 (1971) ........ccccscceseeseeeees 7
Vidal v. Girard’s Ex'rs, 43 U.S. 127 (1844).........ccccccccees 16
Warde v. Manchester, 56 N.H. 508 (1876)...............000000+8 15
Witters v. Washington Dept. of Services for the Blind, 474

ee eR nttinrnesctcinpinistiniaticaivseniasemntnimmstnnnins 2, 6
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

See iccnnnttapeacigeaitidiniimndinennnitecesniniinnieniaittmentinitalitias 3, 6
Statutes and Constitutions :

Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889)............. 21
Act of July 3, 1890, 26 Stat. L. 215 § 8, ch. 656 (1890).....21
Act of June 20, 1910, 36 Stat. 557 § 26 (1910).................. 21
AGG. GID AR, Ts OD secteccicctivetbentininsinecctrinatgeniminesian 21
Sh, GRR: OR. FB Becnccterninntaninesitpttipcscscinintnienninitinates 21
SS GE. GAB. FE OS ccrresstentsinsterstcnnmnepnictnccngiatintiines 21
TE, Bic B, B Deccctnsntnstickinennrtaprietepnactvtibins 25
aes CRIT SB SEP cccnusistinisinaniciiimtnatapttatidaninienstidtinniitintapitial 21
MASS. CONST. amend. art. XLVI ..........-:csscssesseseesesseeeesnenes 18
MASS. CONST. amend. art. XVIIL.............0ssessessereserneeeeeeees 18

iv

BE, QTE, GID, BI OG cntccccnynssccascssennsemnspinpinnmecapntersemnpeces 21

Ss Cee OI, Fe i acnscennnsibbitsessoninintenvnsisidtibatipnsitncntavnnnpnne 21
ee I Sis nsititineiniinidinsinntemnnsemmmenbtbncemindbancncistents 21
N.Y. CONST. art. XI § 3 ..0..........00000 Ne Tee 21
Fe RS a es ee 21
WASH. CONST. arts. IX § 4, Art. 1 § 11...............2eeeeeee 21
Other Authorities
ANSON STOKES, CHURCH AND STATE IN THE UNITED STATES
EE EA ae Ee Cee 10
DIANE RAVITCH, THE GREAT SCHOOL WARS: NEW YORK
i SE cthniceccemnieidapiepepmmancstandupenemsieemesies 11,12

Donald A. Giannella, Religious Liberty, Nonestablishment,
and Doctrinal Development, Part II. The
Nonestablishment Principle, 81 HARV. L. REv. 513
TUITE Diraiiticidieiscansseiriineniicinatanimnaaditaneuniantenminggtiiatiintsieesnenientel 6

Douglas Laycock, The Underlying Unity of Separation and
Neutrality, 46 EMORY L. J. 43 (1997) .0........:cccccccceeseeeeees 5

E.I.F. WILLIAMS, HORACE MANN: EDUCATIONAL STATESMAN

Eugene Volokh, Equal Treatment Is Not Establishment, 13
NoTrRE DAME J.L. ETHICS & PuB. POL'y 341 (1999)......7

HORACE MANN, LIFE and WORKS: ANNUAL REPORTS OF THE
SECRETARY OF THE BOARD OF EDUCATION OF
MASSACHUSETTS FOR THE YEARS 1845-1848 (1891)....15

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

i iccilinnsitiicnalinninadtaadiadilatiamspinsiniiestacnennimenttenccensannetnenntin 23
JOHN R. MULKERN, THE KNOW-NOTHING PARTY IN
TES 18

Julie K. Underwood, Changing Establishment Analysis
Within and Outside the Context of Education, 33 How.
a asics ls ineennirinintatennlinntnnsdininiemenngemeacel 6

KINZER, AN EPISODE IN ANTI-CATHOLICISM (1964)........... 23

Matthew S. Steffey, Redefining the Modern Constraints of
the Establishment Clause: Separable Principles of

Equality, Subsidy, Endorsement, and Church Autonomy,

75 MARQ. L. REV. 903 (1992) ......c.ccccscsseseersserseerseeneenees 6
Michael J. Perry, Freedom of Religion in the United States:
Fin de Siecle Sketches, 75 IND. L.J. 295 (2000) ............. 7

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............. 19
R. FREEMAN BUTTS, THE AMERICAN TRADITION IN RELIGION
AND EDUCATION (1950) ..........c:-esssssssssseerseeeeneessnenneeennnees 9

R. MICHAELSEN, Piety In The Public School (1970)....16, 20
Steven K. Green, The Blaine Amendment Reconsidered, 36

AM. J. LEGAL HIST. 38 (1992) ...........cccccseeeeeeeeeeeenesnnnes 21

2 THE COLLECTED WORKS OF ABRAHAM LINCOLN (R. Basler

OE, RDG meececceserecnscsnsvesccctecesecnstsensesesicnstasnstansssasenstensensnentte 17
\

; IN THE
Supreme Court of the Gnited States

Nos. 00-1751, 00-1777, 00-1779.

SUSAN TAVE ZELMAN, ef ai.
Petitioners,
Vv.

DORIS SIMMONS-HARRIS, et ai.,
Respondents.

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
nonpartisan, interfaith, public-interest law firm, whose mission
is to defend the free speech and religious freedom rights of

Americans of all faith traditions.

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

Consent letters from all parties are being filed concurrently with
this brief. No counsel for any party authored this brief in whole
or in part. No person or entity other than amicus, its members,
and its counsel made any monetary contribution to thie

preparation or submission of this brief.

Amicus submits this brief to attempt to correct what we
believe is a misreading of historical events of the 19" Century
that long has colored analyses of aid to religious primary and
secondary schools. This amicus brief traces the 19" Century
efforts to bar aid to “sectarian” schools, which, we will
demonstrate, were not based on fair-minded debates over the
proper separation of church and state, but rather were the result
of anti-Catholic and anti-immigrant nativism and a desire to
preserve the Protestant character of the public schools.” In light
of this history, this amicus brief argues that this Court should
not treat primary and secondary school aid as a special
analytical category, as it has frequently done, but instead should
look at this case under general Establishment Clause principles.
This brief is thus similar in certain respects to the brief Amicus
submitted in Mitchell v. Helms, 530 U.S. 793 (2000) (available
at www. becketfund.org/litigate/mitchell.pdf), which traced the
history of the concept of barring aid to “pervasively sectarian”

SUMMARY OF THE ARGUMENT

Petitioners and other amici undoubtedly will address
fully how the program at issue in this case should be upheld on
the grounds that it involves the same principle that led to this
Court upholding the aid in Mueller v. Allen, 463 U.S. 388
(1983), Witters v. Washington Dept. of Services for the Blind,
474 U.S. 481 (1986), and Zobrest v. Catalina Foothills Sch.
Dist., 509 U.S. 1 (1993). In a nutshell, the Ohio program does

"In Boyette v. Galvin, No. 98-CV-10377 (D. Mass. filed
Mar. 3, 1998), amicus represents 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.

2

Dist., 509 U.S. 1 (1993). In a nutshell, the Ohio program does
not “define its recipients by reference to religion,” Agostini v.
Felton, 521 U.S. 203, 234 (1997), and “[ajny aid provided
under [the Ohio] program that ultimately flows to religious
institutions does so only as a result of the genuinely
independent and private choices of aid recipients.” Witters, 474
U.S. at 488.

This brief addresses a different issue. Amicus urges this
Court to reject the argument that money flowing to religiously
affiliated or oriented primary and secondary schools constitutes
a separate analytical category under the Establishment Clause.
While some of this Court’s direct-aid opinions, separate
opinions of Justices, and various commentators have viewed
monetary aid for education at primary and secondary religious
schools as being especially suspect, this concept in the law does
not have its origins in well-meaning theories of how best to
maintain the proper separation of church and state. Rather, this
practice of treating aid to lower schools as a unique
Establishment Clause problem has its origin in the nativist and
anti-Catholic bigotry of the 19" and early 20" Century. In
short, it flowed not from the 18" Century thought of Madison
and Jefferson, but from the fears and prejudices of later
generations.

There is a popular narrative, though, that looks to the
debates over aid to religious primary and secondary schools in
the 19" Century as a basis for arguing that such aid should be
treated as a special species of Establishment Clause problem
today. This notion is traceable to the separate opinion of Justice
Frankfurter in McCollum v. Board of Education, 333 U.S. 203
(1948), and the separate opinion of Justice Brennan in Lemon v.
Kurtzman, 403 U.S. 602 (1971), which describe the battles over
aid to religious schools and the subsequent determination,
engrafted onto the constitutions of most states, to bar aid to
“sectarian” schools. Both Justices cited this as the development

3

of a consensus that “prohibition of furtherance by the State of
religious instruction became the guiding principle, in law and
feeling, of the American people.” McCollum, 333 U.S. at 215
(Frankfurter, J., concurring); see also Lemon, 403 U.S. at 648
(Brennan, J., concurring) (“[F]or more than a century, the
consensus . . . has been that public subsidy of sectarian schools
constitutes an impermissible involvement of secular with
religious institutions.”). As recently as two terms ago Justices
of this Court have relied on this historical narrative. See
Mitchell v. Helms, 530 U.S. 793, 872 (2000) (Souter, J., joined
by Stevens and Ginsburg, JJ.) (citing opinions of Justices
Brennan and Frankfurter and stating that the turmoil over
government establishments “in our own history . . . has led to a
rejection of the idea that government should subsidize religious
education.”). ‘

But as this brief will show, this narrative was based on
the failure of Justices Brennan and Frankfurter to recognize that
“nonsectarian” in the historical sources they cited was not a
synonym for “secular.” In the 19" Century school debates,
keeping the common schools “nonsectarian” essentially meant
keeping them non-Catholic. Indeed, “nonsectarian” was
understood to allow the public schools to include a form of
nondenominational Protestantism that relied on individual
interpretation of the Bible. Moreover, constitutional
amendments adopted in a majority of states that barred aid to
“sectarian” schools, known as Blaine Amendments, were in fact
the product of organized nativist efforts to preserve the
Protestant character of the “nonsectarian” public schools and to
suppress the cultural threat posed by the growth of Catholic .
“sectarian” schools.

Part I of this amicus brief traces the development of the
popular myth that the 19" Century controversies over primary
and secondary “sectarian” aid grew out of laudable concerns for
the separation of church and state, and the adoption of that myth

4

in this Court’s jurisprudence. Part II seeks to lay out for this
Court a more accurate picture of the period. Part III urges this
Court to analyze this case under general Establishment Clause
principles, without the anachronistic baggage of viewing aid to
primary and secondary schools as a separate analytical
category. Amicus agrees with the conclusion of Professor
Douglas Laycock that “we should not unwittingly reason from
a premise rooted in nineteenth century anti-Catholicism. We
must think these questions out afresh, with no inherited
presuppositions.” Douglas Laycock, The Underlying Unity of
Separation and Neutrality, 46 Emory L. J. 43, 53 (1997).

ARGUMENT

I. THE SPECIAL TREATMENT OF PRIMARY AND
SECONDARY SCHOOLS ARTICULATED IN
SOME OF THIS COURT’S ESTABLISHMENT
CLAUSE CASES IS UNSOUND AND OWES
MORE TO BYGONE PREJUDICES AND FEARS
THAN TO THE COMMANDS OF THE FIRST
AMENDMENT.

A. This Court Has Often Treated Aid Involving
Primary and Secondary Schools as a Special
Analytical Category.

There is, as this Court has recognized repeatedly, a
fundamental difference between financial aid provided directly
by the government to religious schools and aid that reaches
such schools only indirectly, through the private choices of
those who receive benefits through public-welfare programs.
This Court’s cases teach that an individual’s own choice to use
funds received through religion-neutral programs to send her
child to a religious school simply does not unconstitutionally
“establish” or “endorse” religion. See, e.g., Mueller v. Allen,

5

463 U.S. 388 (1983) (upholding tax deduction for educational
expenses despite majority of beneficiaries using benefit for
religious school expenses); Witters v. Washington Dept. of
Services for the Blind, 474 U.S. 481, 488 (1986) (upholding
blind man’s use of vocational training funds to attend religious
seminary since “[a}]ny aid provided under [the] program that
ultimately flows to religious institutions does so only as a result
of the genuinely independent and private choices of aid
recipients,”); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S.
1, 10 (1993) (upholding government payment of interpreter for
deaf child attending religious school since the “interpreter will
be present in a sectarian school only as a result of the private
decision of individual parents.”).

Nonetheless, Respondents and their amici likely will
attempt to distinguish these three cases on the grounds that
Witters involved higher educatior, that Zobrest involved in-
kind aid, and that Mueller involved tax deductions, while the
Cleveland Pilot Project Scholarship Program involves money
from the public fisc winding up in the checking accounts of
religiously affiliated or oriented primary and secondary schools.
Such attempts should fail.

It is true, of course, that courts and commentators have
often suggested that primary_and secondary schools are, for
Establishment Clause purposes sui generis.’ For example, the

*See, e.g., Matthew S. Steffey, Redefining the Modern
Constraints of the Establichment Clause: Separable Principles
of Equality, Subsidy, Ena rsement, and Church Autonomy, 75
MARQ. L. REV. 903, 921-22 (1992); Julie K. Underwood,
Changing Establishment Analysis Within and Outside the
Context of Education, 33. How. L.J. 53, 56 (1990); Donald A.
Giannella, Religious Liberty, Nonestablishment, and Doctrinal
Development, Part II: The Nonestablishment Principle, 81

HARV. L. REV. 513, 561-62 (1968); see also Michael J. Perry,
6

“divisiveness” doctrine—which appears now to have been
abandoned by this Court‘—was not focused on political
divisiveness generally, but instead on the particularly
worrisome divisiveness that was thought to attend financial aid
to religious primary and secondary religious schools. See, e.g.,
Mueller v. Allen, 463 U.S. at 403 n.11 (divisiveness inquiry is
“confined to cases where direct financial subsidies are paid to
parochial schools or to teachers in parochial schools.”); Roemer
v. Board of Pub. Works of Md., 426 U.S. 736, 765-66 (1976)
(“divisiveness” principle not applied in higher-education
context); Tilton v. Richardson, 408 U.S. 672, 688-89 (1971)
(same).

In a similar vein, the dissenting Justices in Mitchell
noted that “two types of aid recipients heighten Establishment
Clause concern: pervasively religious schools and primary and
secondary religious schools.” 530 U.S. at 885. Monetary aid
is likewise a ground for distinction recognized by the Court. In
Agostini, the Court stressed that “[n]o Title I funds ever reach
the coffers of religious schools.” 521 U.S. at 228-29.

As we will show, though, heightened suspicion directed
toward monetary aid involving religious primary and secondary

Freedom of Religion in the United States: Fin de Siecle
Sketches, 75 IND. L.J. 295, 321 n.83 (2000) (observing, but
disagreeing with, special treatment of primary and secondary
education in the Establishment Clause context); Eugene
Volokh, Equal Treatment Is Not Establishment, 13 NOTRE
DaME J.L. ETHICS & PuB. POL'y 341, 342-47 (1999) (same).

‘See, e.g., Mitchell, 530 U.S. at 825 (“the dissent
resurrects the concern for political divisiveness that once
occupied the Court but that post-Aguilar cases have rightly
disregarded”); Aguilar v. Felton, 473 U.S. 402, 429 (1985)

(O’Connor J., dissenting).
5

schools—and toward the instruction they provide—is rooted
not in the tolerant pluralism of Madison, but instead in a later
generation’s shameful nativism and prejudice.

B. This Court’s Treatment of Aid to Students in
Primary and Secondary Religious Schools as

an Especially Suspect Category of Aid is
Rooted in an Erroneous Historical Narrative.

An early and influential effort to justify the special
judicial attention directed at primary and secondary religious
schools and their students is Justice Brennan’s concurrence in
Lemon v. Kurtzman. There, he insisted that the case required an
examination of “the history of public subsidy of sectarian
schools, and the purposes and operation of these particular
statutes.” Lemon, 403 U.S. at 644. He then proceeded to
describe the school-funding crisis that rocked New York City in
the early 1840’s, and how 35 States, responding in the second
half of the 19" Century to “widespread demands throughout the
States for secular public education,” enacted constitutional
provisions barring aid to religious schools. /d. at 647 (emphasis
added). In this respect, Justice Brennan followed the trail
blazed by Justice Frankfurter in his concurrence in McCollum:

In New York, the rise of the common schools
led, despite fierce sectarian opposition, to the
barring of tax funds to church schools, and later
to any school in which sectarian doctrine was
taught. In Massachusetts, largely through the
efforts of Horace Mann, all sectarian teachings
were barred from the common school to save it
from being rent by denominational conflict. The
upshot of these controversies, often long and
fierce, is fairly summarized by saying that long
before the Fourteenth Amendment subjected the
States to new limitations, the prohibition of

furtherance by the State of religious instruction
became the guiding principle, in law and feeling,
of the American people.

333 U.S. at 214-15 (notes omitted). And, moving forward in
time, the historical narrative embraced by Justices Brennan and
Frankfurter was endorsed recently by the dissenting Justices in
Mitchell. See 530 U.S. at 872 (Souter, J., joined by Stevens and
Ginsburg, JJ.) (citing opinions of Justices Brennan and
Frankfurter and stating that the turmoil of government
establishments “in our own history . . . has led to a rejection of
the idea that government should subsidize religious
education.”’).

But Justice Brennan failed entirely to appreciate that, in
the historical works on which he relied, “nonsectarian” was not
a synonym for “secular.” Rather, “nonsectarian” had a very
different, specific meaning. It denoted, even according to the
historians Justice Brennan cites, a form of nondenominational
Protestantism relying on individual interpretation of the Bible.°

‘For example, one of the historical works Justice
Brennan cites, R. FREEMAN BUTTS, THE AMERICAN TRADITION
IN RELIGION AND EDUCATION (1950), explains that educators in
the first half of the 19" Century “came to the conclusion that
moral education should be based on the common elements of
Christianity to which all Christian sects would agree or to
which they would take no exception.” Jd. at 117. This included
“reading of the Bible as containing the common elements of
Christian morals but reading it with no comment in order not to
introduce sectarian biases.” Jd. When Catholic immigrants
grew in numbers throughout the nation, Butts reports, “they
soon raised the objection that what seemed to be ‘non-sectarian’
to Protestants was actually ‘sectarian’ to Catholics.” /d. at 118.

9

This oversight led Justice Brennan to misunderstand the
controversy that arose in New York City when Catholics,
seeking a portion of the state common school fund for parochial
schools, “contend[ed] that the [city] council was subsidizing
sectarian books and instruction” in the various New York City
schools supported by state funds. 403 U.S. at 646. After noting
that the Scotch Presbyterian and Jewish communities also
sought funding for their schools, id. Justice Brennan stated:

Although the Public School Society undertook to revise
its texts to meet the objections, in 1842, the state
legislature closed the bitter controversy by enacting a
law that established a City Board of Education to set up
free public schools, prohibited the distribution of public
funds to sectarian schools, and prohibited the teaching

Similarly, 2 ANSON STOKES, CHURCH AND STATE IN THE
UNITED STATES (1950), another work heavily relied on by
Justice Brennan, discusses educator Horace Mann’s similar
understanding of the term “nonsectarian.” /d. at 55-56. Stokes
quotes Mann’s report to the Board of Education in 1848, which
reveals the point well:

[S]ectarian books and sectarian instruction, if
their encroachment were not resisted, would
prove the overthrow of the schools .... Our
system earnestly inculcates all Christian morals;
it founds its morals on the basis of religion; it
welcomes the religion of the Bible; and in
receiving the Bible, it allows it to do what it is
allowed to do in no other system, to speak for
itself.

Id. at 57.

of sectarian doctrine in any public school.
Id. ns

Again, though, “sectarian” and “nonsectarian,” had a
specific meaning in the context of these debates, and
“nonsectarian” was by no means a synonym for “secular.”
Instead, it meant non-denominational Protestantism. This fact
is illustrated nicely in the Public School Society’s proposed
“textbook revisions” that Justice Brennan reports failed to
resolve the matter. After a series of fruitless meetings over
proposed changes, the Public School Society’s trustees
expressed their frustration that, to the Catholics, “[e}ven the
Holy Scriptures are sectarian and dangerous ‘without note or
comment’; and certainly no comments would be acceptable
other than those of their own church.” DIANE RAVITCH, THE
GREAT SCHOOL WARS: NEW YorK City, 1805-1973, at 50
(1974).

Moreover, the state legislature did not really “close[ ]
the bitter controversy,” as Justice Brennan reported—it simply
handed victory to one side. The first Board of Education,
elected after the school controversy was supposedly settled,
hired a prominent nativist as Superintendent of Education, and
the schools included daily readings from the Protestant Bible.
Id. at 80. Catholics objected, but the Board ruled that reading
the Bible “without note or comment” did not constitute

*Catholics objected, for example, to textbooks
describing Martin Luther as “the great reformer. . . . The cause
of learning, of religion, and of civil liberty, is indebted to him,
more than any man since the Apostles,” and to others with
passages openly disparaging “Popery.” DIANE RAVITCH, THE
GREAT SCHOOL WARS: NEW YorK City, 1805-1973, at 52
(1974).

sectarianism. /d.

After the New York controversy was concluded, Justice
Brennan reported, “[t]he Nation’s rapidly developing religious
heterogeneity, the tide of Jacksonian democracy, and growing
urbanization soon lead to widespread demands throughout the
States for secular education.” 403 U.S. at 646-47. Asa result,
by 1900, 35 states “had added provisions to their constitutions
prohibiting the use of public school funds to aid sectarian
schools.” Jd at 647. He cites a number of cases applying
these laws, and declares, in support of striking down the aid at
issue in Lemon:

Thus for more than a century, the consensus,
enforced by legislatures and courts with
substantial consistency, has been that public
subsidy of sectarian schools constitutes an
impermissible involvement of secular with
religious institutions.

Id. at 648-49.

Amicus respectfully submits that Justice Brennan’s
account of these 19" Century developments is—like his
presentation of the New York City crisis—inadequate and
incomplete. The same is true of Justice Frankfurter’s
conclusion in his McCollum concurrence, reflecting on the
efforts in New York and Massachusetts to keep their common
schools “nonsectarian,” that “long before the Fourteenth
Amendment subjected the States to new limitations, the
prohibition of furtherance by the State of religious instruction
became the guiding principle, in law and feeling, of the
American people.” McCollum, 333 U.S. at 215.

Unfortunately, these accounts and the popular narrative
that they helped create, see, e.g., Mitchell, 530 U.S. at 872

12

(Souter, J., dissenting), place a benign separationist veneer
over what the 19" Century state constitutional enactments
really were: an effort to suppress Catholic schools and

preserve Protestant hegemony generally, and the Protestant

character of the public schools particularly. Because the

history of barring public funds for sectarian schools during this
period is, as Professor Douglas Laycock has stated, “the source
of the legal tradition that treats school funding as an especially
important issue in the separation of church and state,”
Laycock, supra, at 50, an accurate understanding of that
history is critical.

This amicus brief seeks to lay out this history for the
Court and show that what moved the states to bar aid to
“sectarian” schools were not lofty principles of religious
liberty, but instead various recurrent strains of anti-Catholic
bigotry and an effort to ensure that public schools could
continue to teach the supposedly “nonsectarian” common
Protestant religion. Amicus does this not to score debater’s
points, or to construct a history of grievance, but to urge this
Court to view the Cleveland school choice program through a
lens unclouded by anachronistic biases and shoddy history.
Correctly understood, nothing in the Establishment Clause
requires this Court to reserve particular suspicion for religious
primary and secondary schools. Again, following Professor
Laycock, we urge this court to agree that “Americans today
should not unwittingly reason from a premise rooted in
nineteenth century anti-Catholicism. We must think these
questions out afresh, with no inherited presuppositions.” /d. at
53.

13

C. The Special Treatment of Aid to Primary and
Secondary Religious Schools in the
Nineteenth Century was a Manifestation of
Nativist Bigotry and an Effort to Maintain the
Nondenominational Protestant Character of
the Public Schools.

l. Nineteenth Century “Common
Schools” Inculcated Students with the
Protestant “Common Religion,” Thus

In the northeast States, the birthplace of the “common
school,” there was an ongoing religious debate in the 19”
Century 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. The term referred to schools that taught religious
doctrine acceptable initially to all Congregationalists, and, later,
to most Protestants.’ When Horace Mann developed his system

Our fathers were not only Christians; they were, even
in Maryland by a vast majority, elsewhere almost unanimously,
Protestants.” Hale, 53 N.H. at 111 (quoting 2 BANCROFT’S

14

of common, nonsectarian schools, the conflict he addressed was
that between Orthodox and Unitarian Congregationalists.'
E.1.F. WILLIAMS, HORACE MANN: EDUCATIONAL STATESMAN

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 1848:

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.

HORACE MANN, LIFE AND WORKS: ANNUAL REPORTS OF THE
SECRETARY OF THE BOARD OF EDUCATION OF MASSACHUSETTS
FOR THE YEARS 1845-1848, at 292 (1891). 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. 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.” Jd See also
note 5, supra. Mann welcomed religion in the common
schools—so long as it was of the “common,” “non-sectarian”
variety.

15

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.”).

The New York Public School Society’s inability to
appreciate Catholics’ objections to required readings, without
note or comment, of the “nonsectarian” King James Bible
reflected a similar understanding. Indeed, during this period,
even Justices of this Court defined “sectarian” with reference to
a benchmark of nondenominational Protestantism. 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, wpon 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 for granted

the proposition that, in 1844, the “common religion” was not
sectarian. Other religions were.

16

2. Nativist Hostility to Irish and East-European
Immigrants and Their Religions Produced
Fierce, Organized Opposition to “Sectarian”
Schools.

The common-school movement coincided with a surge
in Irish, German, and other European Catholic and Jewish
immigrants, and a corresponding backlash—one that lasted well
into the 20" Century—against those immigrants and their
religions. This backlash formed the basis of organized nativist
movements that thrived on Protestant fears of the immigrants’
cultures and faiths.

One of the earliest and most prominent nativist groups
was the Know-Nothing party, which “included in its platform
daily Bible reading in the schools.” Lemon, 403 U.S. at 629
(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 in2 THE COLLECTED WORKS OF ABRAHAM LINCOLN
320, 323 (R. Basler ed., 1953).

This was not a fringe movement. In Massachusetts, the
elections of 1854 swept the Know-Nothing party into power.
Know-Nothings won the governorship, the entire congressional
delegation, all forty seats in the Senate, and all but 3 of the 379
members of the House of Representatives. JOHN R. MULKERN,

17

THE KNOW-NOTHING PARTY IN MASSACHUSETTS 76 (1990).
Armed with this overwhelming mandate, they turned quickly to
what Governor Henry J. Gardner called the mission to
“Americanize America.” Jd at 94. The Know-Nothings
required the reading of the King James Bible in all “common”
schools; they proposed constitutional amendments (which
passed both houses of the legislature) that “would have
deprived Roman Catholics of their right to hold public office
and restricted office and the suffrage to male citizens who had
resided in the country for no less than twenty-one years”; they
dismissed Irish state-government workers; and they banned
foreign-language instruction in the public schools. Jd. at 102.
The official bigotry is perhaps best—and comically— illustrated
by the removal of a Latin inscription above the House
Speaker’s desk and the establishment by the legislature of a
“Joint Special Committee on the Inspection of Nunneries and
Convents.” /d. at 102-103. This Committee was charged with
the task of liberating women thought to be captive in convents
and stamping out other “acts of villainy, injustice, and wrong . .
. perpetrated with impunity within the. walls of said
institutions.” Jd. at 103.

Of particular interest here is the fact that the Know-
Nothings also succeeded in adding an amendment to the
Massachusetts Constitution which had been proposed and
narrowly rejected by the people one year before: “[MJoneys
raised by taxation in the towns and cities for the support of
public schools, and all moneys which may be appropriated by
the state for the support of common schools . . . shall never be
appropriated to any religious sect for the maintenance
exclusively of its own schools.” Mass. CONST. amend. art.
XVIII (superseded by Mass. CONST. amend. art. XLVI). See
MULKERN, supra at 54-56, 79, 105-106. The amendment’s
proponents were open about their motives:

Sir, I want all our children, the children of our
18

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 PROCFEDINGS 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). Yet this very
provision—unquestionably the product of prejudice—was
among the 19" Century enactments cited approvingly by Justice
Brennan as representing the “consensus . . . that public subsidy
of sectarian schools constitutes an impermissible involvement
of secular with religious institutions.”

Nor were nativist sentiments and outbursts confined to
Massachusetts. The understanding of “nonsectarianism” as
“lowest common denominator” Protestantism also led, for
example, to a telling battle in Cincinnati between the “common

* Lemon, 403 U.S. at 648-49 & n.7. Ironically, it was
acknowledged in a source on which Justice Brennan relied that
the anti-aid amendment in Massachusetts was the result of the
“fanaticism” of the Know-Nothings, who “sought to abolish the
Catholic school, force the children to attend public school, [and]
use the Protestant Bible as a reader.” BURTON CONFREY,
SECULARISM IN AMERICAN EDUCATION: ITs HISTORY 141 n.69
(1931).

19

religionists” and a group of Catholics, Jews, and freethinkers
that opposed Protestant devotional Bible reading. See Board of
Educ. v. Minor, 23 Ohio St. 211 (1872). Protestant opposition
to the removal of “their” Bible from the public schools was
fierce and virulently anti-Catholic. See MICHAELSEN, supra at
118 (“[{T]Jhe Dutch Reformed Christian Intelligencer denounced
the Cincinnati board’s action as a move to ‘hand the public
schools over to Pope, Pagan, and Satan.””).

Nothing, though, refutes the claim that the common-
school movement serves as a separationist model for church-
state relations as decisively as does the history of the enactment
and enforcement of the state “Blaine Amendments.” Blaine
Amendments take their name from Representative James G.
Blaine, who in 1875, introduced in the U.S. House of
Representatives a proposed constitutional amendment that
would have barred states from giving school funds to sectarian
schools.'® There were no illusions about the purpose of such
amendments. As this Court stated in Mitchell: “Consideration

'°T LOYD 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

Id.

of the amendment arose at a time of pervasive hostility to the
Catholic Church and to Catholics in general, and it was an open
secret that ‘sectarian’ was code for ‘Catholic.’” 120 S. Ct. at
2551 (plurality opinion); see also Kotterman v. Killian, 972
P.2d 606, 624 (Az. 1999) (“[C]ontemporary sources labeled the
amendment part of a plan to institute a general war against the
Catholic Church.”) (citation omitted).

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

Many prominent people threw their weight behind the
effort. In 1875, President Grant spoke of the Catholic Church
as a source of “superstition, ambition and ignorance.” President

''The measure passed the House 180-7 but fell four
votes short of the Senate. Steven K. Green, The Blaine
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).

"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 legislation 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. 1 § 11; Ariz. Const. art. IX § 10;
IDAHO CONST. art. X § 5.

21

Ulysses S. Grant, Address to the Army of Tennessee at Des
Moines, Iowa (quoted in Laycock, supra, at 51). Institutions
were formed to fight Catholic interference with the Protestant
public school system. See, e.g., Derry Council, No. 40, Junior
Order United American Mechanics v. State Council of Penn.,
47 A. 208, 209 (Pa. 1900) (among purposes of the Junior Order
of United American Mechanics were “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 efforts to oppose Catholic education and influence
using the various tools of the state legislature, Congress, and the
judiciary. In the 1890s, the “American Protective Association”
was politically successful in inciting anti-Catholic hatred."
eee

‘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 I 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, | knowing
him to be such; that I will use my influence to
promote the interest of ail 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
22

3. Nineteenth and Early Twentieth Century State
Court Litigation Reinforced the Distinction
Between “Common” and “Sectarian” Schools.

The Blaine Amendments resulted in a wave of state-
court litigation firmly establishing the notion that Catholic
“sectarian” schools were unable to share in neutral education
programs benefiting the “common” schools. Blaine
Amendments, and other Blaine-like provisions, were frequently
used to strike down programs such as payment for orphans at a
Catholic asylum, Nevada ex rel. Nevada Orphan Asylum v.
Hallock, 16 Nev. 373 (1882), payment for tuition at an
“industrial school for girls,” Cook Cy. v. Chicago Indus. Sch.
for Girls, 18 N.E. 183 (Ill. 1888), and provision of textbooks
and other supplies for parochial school students, Smith v.
Donahue, 195 N.Y.S. 715 (N.Y. App. Div. 1922).

When Catholic children attending public schools
complamed 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,'* courts continued to hold that the reading of that

36 (1912); See also KINZER, AN EPISODE IN ANTI-CATHOLICISM
139 (1964).

‘As the California Supreme Court described the
religious differences between the King James (Protestant) and
Douai (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.

23

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 so.”), overruled by Conrad v. City of Denver, 656
P.2d 662 (Colo. 1983).

Other courts were 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, repeating
the Lord’s prayer, and singing religious 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-

which are omitted from the texts of the
Testaments in the King James version.

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
Catholics and Protestants over Bible reading); People ex rel.
Ring v. Board of Educ. of Dist. 24,92 N.E. 251, 254 (Ill. 1910)
(“Catholics claim that there are cases of willful perversion of
the Scriptures in King James’ translation.”).

‘The Bible was, of course, widely read for devotional
purposes, 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.”).

24

payer, is compelled to pay taxes for building and
repairing a place of worship.

....» 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.

....+ Possibly, 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
a ay SSN ee ee a ae
such mission.

Moore v. Monroe, 20 N.W. 475, 475-76 (lowa 1884).'" See
also Kaplan v. Indep. Sch. Dist.,214.N.W. 18, 20 (Minn. 1927)
(upholding Bible reading, and adding, “[w]e 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 that 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

’ Ironically, in a later decision, the lowa Supreme
Court enjoined a school district from providing funds to a
public school operating in the same building as a Catholic

hial school—whil licitl ely ae
Moore. Knowlton v. Baumhover, 166 N.W. 202, 214 (lowa

1918).
25

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
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 arguing 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 Educ., 76 P. 422, 423
(Kan. 1904).

Similarly, daily religious services at a Methodist
College were held by the Kentucky Court of Appeals not to
constitute “sectarian instruction.” Commonwealth v. Board of
Educ. of Methodist Episcopal Church, 179 S.W. 596, 598 (Ky.
1915). See also Hackett v. Brooksville Graded Sch. Dist., 87
S.W. 792, 793 (Ky. 1905). The Nebraska courts also applied
the term “sectarian” to allow Protestant instruction in the public
schools. See State v. Scheve, 93 N.W. 169, 172 (Neb. 1903)
(overruling motion for rehearing) (constitutional prohibition

"See Ring, 92 N.E. at 254 (“The Lord’s Prayer is
differently translated in the two versions.”). 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.””).

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).

Objecting students were not excused from the
“nonsectarian” religious exercises. See, e.g, 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) (upholding student’s “exclusion” from school for
refusing to bow her head during public school prayer). Cf
North v. Board of Trustees of Univ. of Illinois, 27 N.E. 54 (Ill.
1891) (holding that 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 Catholic schools and others that deviated from the

Following the incorporation of the Religion Clauses
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

flourishing.'® The rhetoric of challenging aid to “sectarian”
schools—the prohibited category under state Blaine
Amendments—was subsequently adopted, seemingly
uncritically, into First Amendment jurisprudence. And with the
concurrences of Justices Frankfurter and Brennan in McCollum
and Lemon, this rhetoric was given a new pedigree. The
origins of the idea that we should be particularly suspicious of
aid to “sectarian” education were not merely forgotten, but a
new narrative was constructed that put the finest gloss of
principle over the ugly developments of the 19" Century.

Il. THIS COURT SHOULD EXAMINE THE
CLEVELAND SCHOOL-CHOICE PROGRAM
AFRESH, UNENCUMBERED BY A POPULAR
BUT FALSE NARRATIVE

The notion that the Nation’s long history regarding
monetary aid to primary and secondary “sectarian” schools
counsels that such aid is an especially suspect Establishment
Clause problem is, as has been demonstrated, a fundamentally
flawed narrative. The history of the rise of the public schools
and the 19" Century triumph of the no-aid-to-sectarian-schools
concept in the passage and implementation of the Blaine

‘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
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.

Amendments simply cannot serve as the touchstone, or even a
make-weight, for determining the constitutionality of school aid
cases under the Establishment Clause. As amicus has
demonstrated, these Blaine Amendments were enacted and
implemented not out of broad-minded appeals to the first
principles of the Establishment Clause, but rather out of anti-
immigrant and anti-Catholic bigotry and the desire to preserve
Protestant cultural hegemony through the public schools.

As Professor Ira Lupu has argued: “The Protestant
paranoia fueled by waves of Catholic immigration to the U.S..,
beginning in the mid-nineteenth century, cannot form the basis
of a stable constitutional principle.” Ira C. Lupu, The
Increasingly Anachronistic Case Against School Vouchers, 13
NoTrRE DaME J. OF L., ETHICS & PUB. POL. 375, 386 (1999). Or
as Professor Douglas Laycock has warned, we “should not
unwittingly reason from a premise rooted in nineteenth century
anti-Catholicism. We must think these questions out afresh,
with no inherited presuppositions.” Laycock, supra, at 53.

Amicus similarly urges this Court to analyze the
Cleveland Pilot Scholarship Program “afresh,” under the
general principles it has articulated in its recent Establishment
Clause jurisprudence. The popular narrative that justifies
treating monetary aid to religious primary and secondary
schools with singular suspicion is a false one—indeed the actual
history is a shameful one—that should not encumber this
Court’s analysis of the aid at issue in this case.

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

. ANTHONY R. PICARELLO, JR.

THE BECKET FUND
FOR RELIGIOUS LIBERTY
1350 Connecticut Ave., N.W.

Suite 605

Washington, D.C. 20036

ProF. RICHARD W. GARNETT
Notre Dame Law School
Notre Dame, Indiana 46556

Counsel for Amicus Curiae
=e,

*Counsel of Record

~ November 9, 2001

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0468%3A30. Public record. Not legal advice.