Amicus Curiae Brief — Locke v. Davey

No. 02-1315

IN THE

Supreme Court of the United States

GARY LOCKE, et ai.,

Petitioners,

V.

JOSHUA DAVEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE THE BECKET FUND FOR

RELIGIOUS LIBERTY, THE CATHOLIC LEAGUE

FOR RELIGIOUS AND CIVIL RIGHTS, AND

HISTORIANS AND LEGAL SCHOLARS

IN SUPPORT OF RESPONDENT

PROF. RICHARD W. GARNETT KEVIN J. HASSON*

NOTRE DAME LAW SCHOOL ROMAN P. STORZER

Notre Dame, IN 46556 ANTHONY R. PICARELLO, JR.

(574) 631-6981 THE BECKET FUND FOR

RELIGIOUS LIBERTY

1350 Connecticut Avenue,

NW

Suite 605

Counsel for Amici Curiae Washington, DC 20036

*Counsel of Record (202) 955-0095

TABLE OF CONTENTS

TAREE OF AU TRBO RIT EES wccscscccsccosccsscosscsnssesscoscssosscesoccsovsesoneee ili

ORES COU BEM BIOS cccccecscsccessscscsoscrscssssccssrssssssccosssccoscosssees l

SUMMARY OF THE ARGUMENT ..........:cccccsscssssssseseseeeeeeseeseees 3

FU IIIIES cncnscscerccsszescsxscemnsmsrensncsenenncesessnnemeannnnnneasnieeeweeeneeneen 4

I. THE ORIGINAL BLAINE AMENDMENT AND

ITS STATE-LEVEL PROGENY, INCLUDING

THE WASHINGTON PROVISION AT ISSUE

HERE, WERE ANIMATED BY RELIGION-

BASED HOSTILITY AND FEAR ..........ccccscssscessseeeesereseneeenees 4

A. The Decisions of This Court Establish

Conclusively That the Federal and State Blaine

Amendments Were Animated by Nativism ................0000+ 4

B. A Large and Growing Historical Record

Establishes Conclusively That the Federal

and State Blaine Amendments Were

I i Fe cccectrstesnnsnnnsscsssncsssemasscscssssreecenssesnse 8

1. Nineteenth Century “Common Schools”

Inculcated the Protestant “Common Religion,”

Thus Distinguishing Themselves from

o | ti‘(«d (COCi‘(“‘“‘(“‘(‘éNR NUE COI 8

2. Nativist Hostility to European Immigrants

and Their Religions Produced Fierce,

Organized Opposition to “Sectarian” Schools,

Culminating in the Movement to Pass the

Federal and State Blaine Amendments...................++ 10

3. Early Judicial Interpretations of the Various

State Blaine Amendments Confirmed and

Effectuated Their Nativist Purpose ...............:0000000e 15

4. Washington’s Blaine Amendment Is Typical

of State Laws That Target “Sectarian”

Religious Groups for Special Disfavor...............:0++++ 18

C. The Grossly Incomplete Historical Account

of Certain Amici Does Nothing to Undermine

the Conclusion that Nativism Animated the

Federal and State Blaine Amendments ..............c0000000000 19

1. Amici’s Competing Account Is Marked by

Glasing OGnbtSIORS .0000.ccccssscccsceccsccssessnesssesssssesesonooeses 20

2. Amici’s Competing Account Is Inconsistent

in Its Treatment of Remarks by Individuals.............. 21

3. Amici’s Competing Account Emphasizes

Motives That Did Not Significantly Animate

the Federal and State Blaine Amendments................ 23

II. RELIGION-BASED HOSTILITY AND FEAR ARE NOT

LEGITIMATE BASES FOR GOVERNMENT ACTION..... 26

A. Even if It Were Not So Badly Distorted,

the Account by Certain Amici of Nineteenth

Century Catholic Beliefs Has No Place in

the Decision-Making of This Couft ...........:cccccccsseeesereeees 26

B. The Fact That a Group Adheres to a Set of

Disfavored Religious Beliefs May Not Serve

as the Basis for Excluding That Group from

Government eR .ccccescccsccccssscsssssssnscsscnsnnvenistenmssstuenass 29

COIN CLLIUSIOIN .000000c0s0ccsccssesccsenssossssssesessssssssenssssessonssssssssssessossess 30

—e_———_—_ —---

TABLE OF AUTHORITIES

CASES

Arlington Heights v. Metro. Housing Devel. Corp., 429 U.S. 252

EE 22

Billard v. Board of Educ., 76 P. 422 (Kan. 1904)... 17

Board of Educ. v. Minor, 23 Ohio St. 211 (1872) .........cccccccceeees 12

Boyette v. Galvin, No. 98-CV-10377 (D. Mass. filed Mar. 3,

Irene terttenaceenrtnceenscintiesenneecamnncnesnsnenasnnnnassnsssneansncesesssenzsceqeetes 2

Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520

Ee 21, 27, 29

Church v. Bullock, 109 S.W. 115 (Tex. 1908)........cccccceeeeseenes 17

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)...27

Commonwealth v. Board of Educ. of Methodist Episcopal Church,

ce 17

Conrad v. City of Denver, 656 P.2d 662 (Colo. 1983) ................. 16

Cook Cy. v. Chicago Indus. Sch. for Girls, 18 N.E. 183 (Ill.

—————E——— 15

Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973)... 29

Derry Council, No. 40, Junior Order United American Mechanics

v. State Council of Penn., 47 A. 208 (Pa. 1900)............cc000 14

Donohoe v. Richards, 38 Me. 379 (1854)...........ccccccceeeeeceeeeeeenens 16

Employment Division v. Smith, 494 U.S. 872 (1990) ............. 26, 29

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

EET 16

Hackett v. Brooksville Graded Sch. Dist., 87 S.W. 792 (Ky.

C—O aa ecieierincterenemneiengenesnsennscnnecnensenn 17

a 8,9

Hunter v. Underwood, 471 U.S. 222 (1985) ......cccccccccecceeeceeeeeeeneeees 7

Kaplan v. Indep. Sch. Dist., 214 N.W. 18 (Minn. 1927) .............. 16

Knowlton v. Baumhover, 166 N.W. 202 (Iowa 1918)................... 16

Lemon v. Kurtzman, 403 U.S. 602 (1971) ......cccccccccccceeeeeeenees 10, 12

McCormick v. Burt, 95 Tl. 263 (1880)...........cccccccccccceeseeeeeeeeneenees 18

McDaniel v. Paty, 435 U.S. 618 (1978) ........ccccccccccceeceeeeeeeneeneenee 26

Mitchell v. Helms, 530 U.S. 793 (2000).........ccccccccccceeeeeee 4,5, 7,20

Moore v. Monroe, 20 N.W. 475 (Towa 1884) ...........ccccccceeeeeeeees 16

Nevada ex rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373

ren eeerteeeenenennnnnnnemennnmneneenenasece 15, 16

North v. Board of Trustees of Univ. of Illinois, 27 N.E. 54 (Il.

SE rcenmnsssesnessnesseunsicsqnantnmnneenseaneencenmemmenmanestaunssemmnenainnenn 18

Palmore v. Sidoti, 466 U.S. 429 (1984) ........ccccccccesseereeeeeeeeneeennens 29

People ex rel. Ring v. Board of Educ. of Dist. 24, 92 N.E. 251 (Ill.

GIT neussssesnssnmseemmneenneemnenpeeNee 16

People ex rel. Vollmar v. Stanley, 255 P. 610 (Colo. 1927).......... 16

Pucket v. Rounds, (D.S.D. filed Apr. 22, 2003).........ccccccceeeeeeeeees 2

Romer v. Evans, $17 U.S. 620 (1996) .............ccccerscessscersersssseesees 29

Smith v. Donahue, 195 N.Y.S. 715 (N.Y. App. Div. 1922).......... 15

Spiller v. Inhabitants of Woburn, 12 Allen 127 (Mass. 1866)...... 18

State ex rel. Finger v. Weedman, 226 N.W. 348 (S.D. 1929)....... 16

State v. Scheve, 93 N.W. 169 (Neb. 1903)...........ccccccsseseeeeeeeneees 17

Stevenson v. Hanyon, 7 Pa. Dist. R. 585 (1898) ...........ccccccceeeeeeeeees 9

Tash v. Ludden, 129 N.W. 417 (Neb. 1911) .........ccccccceeeeeeeeeenneees 17

The Dublin Case, 38 N.H. 459 (1859) .........ccccccccccseeseeeeeeeseenensneeeees 8

United States v. O'Brien, 391 U.S. 367 (1968).........ccccccccceeeeeneees 21

Vidal v. Girard’s Ex'rs, 43 U.S. 127 (1844) ......ccccccccceseneeeeeeees 9,10

Warde v. Manchester, 56 N.H. 508 (1876).............cc.cecseeeseeeneenernees 9

Watson v. Jones, 80 U.S. 679 (1871) .........cccccceceeceeeeeeeeeeeeeenees 26, 27

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624

| 26

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)............ 5, 6, 7, 20

STATUTES AND CONSTITUTIONS

Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889)... 13, 18

Act of July 3, 1890, 26 Stat. 215 § 8, ch. 656 (1890) ......c......00000 13

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

a 13

a es 14

IDAHO CONST. art. X § S.cccccsccccccccccesssssssssvsssssesssesssssceseeessnseeseneeen 13

ES eh LT ET RL AA: 14

MASS. CONST. amend. art. XVIII........cccccccsssssssssssssesseesssssseeeeeeneen 1

ESS 0 ISON TiS Sete aro ete 25

I 14

I el 13

EN TELE LAL LLL 13

INNY. CONST. at. XE § 3 cccccecccccccseseccccccovccesccccccovsssesecccsnsssceeecenssess 14

S.D. CONST. art. VIET § 16 .cccccccccscccccsssssssssssssvsssessseeesenssnseseeenensen 13

pea

WASH. CONST. art. IX § 4, art. 1 § V1 ccccccccccccccccccsssscsssseseeeeee 13, 18

WIS. CONST. art. X, § 3 sccccsccccocccssesssssesssoesssvessssssssnenseeseseseseeeeeee 25

OTHER AUTHORITIES

THE COLLECTED WORKS OF ABRAHAM LINCOLN 320 (R. Basler

REE aR Reema Ree aeRO 11

20 CONG. REC. 2100-01 (Feb. 20, 1889) ....cccccscssssssssssswsseeeeve 13, 22

4 CONG. REC. 205 (1875) cesccccsccssccsccessececccssssssssesessssesesesnsnssssesene 18

4. CONG. REC. 5191 (1876) cccccccccoccccscssscccsssssssssssssessessesesseseseseeesee 13

4 CONG. RBC. S595 (1876) cecccccccccccccccccccccccccccccccssesesssesesseeevnsnssee 13

RAY ALLEN BILLINGTON, THE PROTESTANT CRUSADE 1800-1860:

A STUDY OF THE ORIGINS OF AMERICAN NATIVISM (1938). 27

GERARD BRADLEY, CHURCH-STATE RELATIONSHIPS IN AMERICA

2

Brief Amicus Curiae of the Becket Fund for Religious Liberty in

Support of Reversal (Apr.12, 2001) (Gallwey v. Grimm, Wash.

Gk Ba Ge creer 2

Brief of the Becket Fund for Religious Liberty as Amicus Curiae in

Support of Petitioners (Aug. 19, 1999) (Mitchell v. Helms, No.

ee 2, 20

Brief of the Becket Fund for Religious Liberty as Amicus Curiae in

Support of Petitioners (Nov. 9, 2001) (Zelman v. Simmons-

Harris, Nos. 00-1751, 00-1777, 00-1779)..........cccccccseeeeeeeeenees 2

Orestes Brownson, The Know-Nothings, BROWNSON’S

QUARTERLY REVIEW 117 (Jam. 1855)..........c..cccccceeceeeeereeeneees 28

THOMAS E. BUCKLEY, CHURCH AND STATE IN REVOLUTIONARY

CO 8 2

Frank J. Conklin and James M. Vaché, The Establishment Clause

and the Free Exercise Clause of the Washington Constitution —

A Proposal to the Supreme Court, 8 UNIV. PUGET SOUND L.

Se G8 Ge ceeeemeen 19

Mark Edward DeForrest, An Overview and Evaluation of State

Blaine Amendments: Origins, Scope, and First Amendment

Concerns, 26 HARV. J. L. & PUB. POL’Y 551 (Spring 2003) .21

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

a 15

Encyclical Letter of His Holiness Pope Pius IX, Quanta Cura

CC 28

Vv

CHARLES L. GLENN, JR., THE MYTH OF THE COMMON SCHOOL (U.

SERED, GE casevesmnme 2,21

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

RE Be Be eR erersenensreecetememmmne 5

PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE

UTI GD crrernsesenssessesesesnensesensseensssaesnnensmmssnssensenn, passim

Toby J. Heytens, Note, School Choice and State Constitutions, 86

eR Be Bie Cee renescssenenenmtenserntmesrenmeemneien 21

Katie Hosford, The Search for a Distinct Religious-Liberty

Jurisprudence Under the Washington State Constitution, 75

TE, Bn Set, GR Ga rr cerncsesnnensesesnssesnenssesmmnsesmnsseem 18-19

Jeffries & Ryan, A Political History of the Establishment Clause,

100 MICH. L. REV. 279 (Nov. 2001) ........cccccccceeeeeeeeees 6, 7,21

PHILIP JENKINS, THE NEW ANTI-CATHOLICISM: THE LAST

ACCEPTABLE PREJUDICE (2003) ...........cccccccessseeseeneeenes 2, 20, 21

LLOYD JORGENSON, THE STATE AND THE NON-PUBLIC SCHOOL,

ee 13, 25

THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL

CONVENTION 1889 (B. Rosenow ed. 1999) ..0.......ccccceeseeneees 19

DONALD L. KINZER, AN EPISODE IN ANTI-CATHOLICISM

ee 15

KOSMIN & LACHMAN, ONE NATION UNDER GOD: RELIGION IN

CONTEMPORARY AMERICAN SOCIETY (1993) ..........cccccceeeeeeees 5

Laycock, “Nonpreferential” Aid to Religion: A False Claim About

Original Intent, 27 WM. & MARY L. REV. 875 (1986) ....23, 24

Laycock, The Underlying Unity of Separation and Neutrality, 46

a ee 14

Lupu & Tuttle, Zelman’s Future: Vouchers, Sectarian Providers,

and the Next Round of Constitutional Battles, 78 NOTRE DAME

Rn TR, FEF GORY Bee cccnssecsnnscensesssessresesmassemmecnsssscrmsesn 7

HORACE MANN, LIFE AND WORKS: ANNUAL REPORTS OF THE

SECRETARY OF THE BOARD OF EDUCATION OF

MASSACHUSETTS FOR THE YEARS 1845-1848 (1891) ............. 9

WARD M. MCAFEE, RELIGION, RACE, AND RECONSTRUCTION:

THE PUBLIC SCHOOL IN THE POLITICS OF THE 1870'S

I esresesssnnescenmmnssmmmienescnmaneemnesasnmmesernesenenmnammnanensian 2,21

ee passim

— — oe

MARTIN E. MARTY, PILGRIMS IN THEIR OWN LAND: 500 YEARS

OF RELIGION IN AMERICA (Penguin 1985)..................0000 13, 27

R. MICHAELSEN, PIETY IN THE PUBLIC SCHOOL (1970).......... 9, 12

JOHN R. MULKERN, THE KNOW-NOTHING PARTY IN

I 11

JOHN COURTNEY MURRAY, WE HOLD THESE TRUTHS: CATHOLIC

REFLECTIONS ON THE AMERICAN PROPOSITION (1960)........ 28

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

a 1]

DIANE RAVITCH, THE GREAT SCHOOL WARS: NEW YORK CITY,

Oe GO ccnncennmnennsssesmmmenesenrmiamnepenmmmnenensannts 12, 24

WILLIAM G. ROSS, FORGING NEW FREEDOMS: NATIVISM,

EDUCATION, AND THE CONSTITUTION 1917-1927 (1994)........ 2

D. TYACK, ONWARD CHRISTIAN SOLDIERS: RELIGION IN THE

AMERICAN COMMON SCHOOL, IN HISTORY AND EDUCATION

Se TG GIP cccenncssssssennmansennssemenmemasenssscssmmnssmneemness 5

Utter & Larson, Church and State on the Frontier: The History of

the Establishment Clauses in the Washington State

Constitution, 15 HASTINGS CONST. L.Q. 451 (1988)....... 19, 25

VAT. II, Dignitatis Humanae (Declaration on Religious Freedom)

is TEE ccrinarespenmpenenanrennecemnsermmeeminaiigeepneenmepsemenenemmmanetee 28

JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE,

THE CONSTITUTION, AND CIVIL SOCIETY (1999)............ passim

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

EIT vsesnesensneinetsestennenanmemannaiacanmesenpstundansienmnemmmenmnsinnmannsenssses 9

JOHN WITTE, JR., RELIGION AND THE AMERICAN

CONSTITUTIONAL EXPERIMENT: ESSENTIAL RIGHTS AND

RTA 3

vii

IN THE

Supreme Court of the United States

No. 02-1315

GARY LOCKE, et al.,

Petitioners,

v.

JOSHUA DAVEY,

Respondent.

BRIEF OF AMICI CURIAE THE BECKET FUND FOR

RELIGIOUS LIBERTY, THE CATHOLIC LEAGUE

FOR RELIGIOUS AND CIVIL RIGHTS, AND

HISTORIANS AND LEGAL SCHOLARS

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI

The Becket Fund for Religious Liberty respectfully submits

this brief of amici curiae on behalf of itself, the Catholic League for

Religious and Civil Rights, and various historians and legal scholars

in support of Respondent pursuant to Rule 37.3 of this Court.'

The Becket Fund for Religious Liberty is a bi-partisan,

interfaith, public-interest law firm dedicated to protecting the free

expression of all religious traditions and the equal participation of

religious people in public life and public benefits. Accordingly, the

Becket Fund has previously filed two amicus briefs before this Court

regarding the history of the federal and state Blaine Amendments and

has been actively involved in lower court litigation challenging state

' All parties have consented to the filing of this brief. A consent

letter from Respondent is on file with the Court. A consent letter from

Petitioners is 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

amici, their members, and their counsel made any monetary contribution to

the preparation or submission of this brief.

Blaine Amendments, including Washington’s.”

The Catholic League for Religious and Civil Rights is the

nation’s largest Catholic civil-rights organization. The League’s

headquarters is in New York City; its cooperating affiliates across the

Country assist in activities national in scope. The Catholic League

aims — among other things — to expose and correct stereotypes of

Catholic belief and of the Church in the media, in popular culture,

and in government actions. In this way, the League seeks not only to

promote accurate understanding of history, but also to protect

individual Catholics as well as the Church against defamation and

discrimination.

Amici also include several prominent legal and religious

historians and legal scholars, whose names and institutional

affiliations (for identification purposes only) are listed in Appendix

A. Among these amici are authors of some of the leading — indeed,

definitive — accounts of the social, historical, and religious context

provided in this brief.’ They have joined in this submission to ensure

? See Brief of the Becket Fund for Religious Liberty as Amicus

Curiae in Support of Petitioners (Nov. 9, 2001) (Zelman v. Simmons-Harris,

Nos. 00-1751, 00-1777, 00-1779) (available at

www.becketfund.org/litigate/zelmanamicus.pdf); Brief of the Becket Fund

for Religious Liberty as Amicus Curiae in Support of Petitioners (Aug. 19,

1999) (Mitchell v. Helms, No. 98-1648) (available at

www.becketfund.org/litigate/mitchell pdf). See also Brief Amicus Curiae of

the Becket Fund for Religious Liberty in Support of Reversal (Apr. 12,

2001) (Gallwey v. Grimm, Wash. S. Ct. No. 68565-7) (available at

www. itigat lw i ; Pucket v. Rounds,

(D.S.D. filed Apr. 23, 2003); Boyette v. Galvin, No. 98-CV-10377 (D. Mass.

filed Mar. 3, 1998).

> See, e.g., GERARD BRADLEY, CHURCH-STATE RELATIONSHIPS IN

AMERICA (1987); THOMAS E. BUCKLEY, CHURCH AND STATE IN

REVOLUTIONARY VIRGINIA: 1776-1787 (1977); CHARLES L. GLENN, THE

MYTH OF THE COMMON SCHOOL (2002); PHILIP JENKINS, THE NEW ANTI-

CATHOLICISM: THE LAST ACCEPTABLE PREJUDICE (2003); GEORGE M.

MARSDEN, RELIGION AND AMERICAN CULTURE (2000); WARD M. MCAFEE,

RELIGION, RACE, AND RECONSTRUCTION: THE PUBLIC SCHOOL IN THE

POLITICS OF THE 1870's (1998); JOHN T. MCGREEVY, CATHOLICISM AND

AMERICAN FREEDOM (2003) ; WILLIAMG. ROSS, FORGING NEW FREEDOMS:

NATIVISM, EDUCATION, AND THE CONSTITUTION 1917-1927 (1994); JOSEPH

2

_— ——

— ee ee eee

-

oe

that the Court’s analysis proceeds from, and is built upon, historically

accurate premises and accounts. In particular, the goal of these

historians and scholars is to urge the Court not to embrace the

misleading and incomplete revisionist account, supplied by several of

Petitioners’ amici, of the Blaine Amendments and of America’s

experiences with nativism and anti-Catholicism.

SUMMARY OF THE ARGUMENT

The Washington State law at issue in this case disqualifies a

student from an otherwise available government benefit, only because

the student would use the benefit for a religious purpose. That is the

core constitutional offense identified by the court below, and this

Court may affirm on that basis alone.

But laws that single out the religious generally — or those of a

particular religion — for exclusion from government educational

benefits are widespread in this country and share a common and

pernicious heritage. Though this tradition of religious discrimination

is unfortunately long-standing, it does not originate with James

Madison, Thomas Jefferson, or any other framers of the federal

constitution. Instead, it emerged with force about a half-century later

as part of a broader cultural movement reacting against a growing

religious minority, whose controversial beliefs directly threatened the

dominant religious ideology of the day. American nativism

succeeded not only in backing its hostility to Catholic immigrants

(and especially their schools) with the force of law, but in cloaking

that hostility with the rhetoric of religious freedom and the authority

of the founders. See generally PHILIP HAMBURGER, SEPARATION OF

CHURCH AND STATE (Harvard 2002).

This perversion of the great American tradition of religious

freedom must end now. This case presents the Court with the

opportunity to expose it and condemn it, once and for all — to tear out,

root and branch, the state constitutional provisions that have enforced

religious discrimination in the funding of education for well over a

century.

P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION,

AND CIVIL SOCIETY (1999); JOHN WITTE, JR., RELIGION AND THE AMERICAN

CONSTITUTIONAL EXPERIMENT: ESSENTIAL RIGHTS AND LIBERTIES (1999).

3

Two amicus curiae briefs in support of Petitioners represent

what should be the last gasps of this dying tradition. The first asks

the Court to cast aside the historical conclusions of a majority of its

sitting members — and the broad consensus of historians and legal

scholars — regarding the nativist purpose of the federal Blaine

Amendment, and its state forerunners and progeny, including the

Washington Blaine Amendment. The second brief freely

acknowledges that hostility to certain Catholic beliefs animated the

Blaine Amendments but - astonishingly — asks this Court to

legitimize that hostility. As set forth below, both arguments are

untenable and should be rejected.

ARGUMENT

I. THE ORIGINAL BLAINE AMENDMENT AND

ITS STATE-LEVEL PROGENY, INCLUDING

THE WASHINGTON PROVISION AT ISSUE

HERE, WERE ANIMATED BY RELIGION-BASED

HOSTILITY AND FEAR.

A. The Decisions of This Court Establish Conclusively

That the Federal and State Blaine Amendments Were

Animated by Nativism.

Seven Justices now sitting on this Court have already

acknowledged that nativism was the driving force behind both the

federal Blaine Amendment and its state progeny. That

acknowledgement has come in two different opinions in two different

cases, and those opinions suggest different views of the /egal

consequences of that historical fact. But the underlying history has

nonetheless been acknowledged by a majority of this Court, and so is

already established in its jurisprudence.

In Mitchell v. Helms, 530 U.S. 793 (2000), the four Justice

plurality opinion both acknowledged and condemned the nativism

that led to the federal and state Blaine Amendments. See id. at 828-

29 (plurality opinion of Thomas, J., joined by Rehnquist, C.J., and

Scalia and Kennedy, JJ.). In rejecting the Court’s prior use of the

term “sectarian” in Establishment Clause jurisprudence, the opinion

explained that “hostility to aid to pervasively sectarian schools has a

shameful pedigree that we do not hesitate to disavow.” The opinion

4

|

continued:

Opposition to aid to “sectarian” schools acquired prominence

in the 1870s with Congress’ consideration (and near passage)

of the Blaine Amendment, which would have amended the

Constitution to bar any aid to sectarian institutions.

Consideration 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.” See generally Green, The Blaine Amendment

Reconsidered, 36 Am. J. Legal Hist. 38 (1992).

Mitchell, 530 U.S. at 828. The plurality concluded that “the

exclusion of pervasively sectarian schools from otherwise permissible

aid programs” — precisely the purpose and effect of the Blaine

Amendments — represented a “doctrine, born of bigotry, [that] should

be buried now.” Jd. at 829.

Two years later, in Zelman v. Simmons-Harris, 536 U.S. 639

(2002), three Justices provided a detailed account of the relevant

history in dissent. See id. at 720-21 (dissenting opinion of Breyer, J.,

joined by Stevens and Souter, JJ.). Specifically, they recognized that

the Blaine Amendment movement was a form of backlash against

“political efforts to right the wrong of discrimination against religious

minorities in public education.” Jd. at 721.

[H]istorians point out that during the early years of the

Republic, American schools — including the first public

schools — were Protestant in character. Their students recited

Protestant prayers, read the King James version of the Bible,

and learned Protestant religious ideals. See, e.g., D. Tyack,

Onward Christian Soldiers: Religion in the American

Common School, in History and Education 217-226 (P. Nash

ed. 1970). Those practices may have wrongly discriminated

against members of minority religions, but given the small

number of such individuals, the teaching of Protestant

religions in schools did not threaten serious social conflict.

See Kosmin & Lachman, [One Nation Under God: Religion

in Contemporary American Society] 45 [(1993)] (Catholics

constituted less than 2% of American church-affiliated

population at time of founding).

5

Zelman, 536 U.S. at 720. The Justices recounted how the wave of

Catholic and Jewish immigration starting in the mid-19th Century

increased the number of those suffering from this discrimination, and

so the intensity of religious hostility surrounding the “School

Question”:

Not surprisingly, with this increase in numbers, members of

non-Protestant religions, particularly Catholics, began to

resist the Protestant domination of the public schools.

Scholars report that by the mid-19th century religious

conflict over matters such as Bible reading “grew intense,” as

Catholics resisted and Protestants fought back to preserve

their domination. Jeffries & Ryan, [A Political History of the

Establishment Clause, 100 Mich. L. Rev. 279,] 300 [(Nov.

2001)]. “Dreading Catholic domination,” native Protestants

“terrorized Catholics.” P. Hamburger, Separation of Church

and State 219 (2002). In some States “Catholic students

suffered beatings or expulsions for refusing to read from the

Protestant Bible, and crowds ... rioted over whether Catholic

children could be released from the classroom during Bible

reading.” Jeffries & Ryan, 100 Mich. L. Rev., at 300.

Zelman, 536 U.S. at 720-21. Finally, the Justices detailed how

Catholic efforts to correct this increasingly severe discrimination

elicited a reaction in the form of the proposed federal Blaine

Amendment and its successful state progeny:

Catholics sought equal government support for the education

of their children in the form of aid for private Catholic

schools. But the “Protestant position” on this matter,

scholars report, “was that public schools must be

‘nonsectarian’ (which was usually understood to allow Bible

reading and other Protestant observances) and public money

must not support ‘sectarian’ schools (which in practical terms

meant Catholic.)” [Jeffries & Ryan] at 301. And this

sentiment played a significant role in creating a movement

that sought to amend several state constitutions (often

successfully), and to amend the United States Constitution

(unsuccessfully) to make certain that government would not

help pay for “sectarian” (i.e. Catholic) schooling for

children. [Jeffries & Ryan] at 301-305. See also

6

— -

ai ee

—

Hamburger, supra, at 287.

Zelman, 536 U.S. at 721.

Thus, according to seven Justices of this Court, the federal

and state Blaine Amendments excluded “sectarian” schools from

equal participation in government educational funding as a way to

target for special disadvantage Catholics and other growing religious

minorities, in fearful reaction to their refusal to conform with

“nonsectarian” Protestantism.

To be sure, the plurality in Mitchell and the dissent in Zeman

disagree sharply on the /egal consequences of this history. The

Mitchell plurality concluded that, because the exclusion of

“sectarian” schools from government funding originated in the same

hostility to Catholics expressed in the Blaine Amendments, and

because that exclusion continues to impose special disadvantages on

Catholics even to this day, the exclusion is unconstitutional and

should be repudiated. See Mitchell, 530 U.S. at 829. See also Hunter

v. Underwood, 471 U.S. 222 (1985). The Zelman dissent concluded

that, although the Blaine Amendments’ exclusion of “sectarian”

schools from government funding targeted Catholics in reaction to

their refusal to assimilate, and although that exclusion may have been

discriminatory, Catholics’ resistance to that discrimination

represented religious strife that demonstrates the need to deny

government funding to all religious schools. Ze/man, 536 U.S. at

721-23. See also Lupu & Tuttle, Zelman’s Future: Vouchers,

Sectarian Providers, and the Next Round of Constitutional Battles, 78

NOTRE DAME L. REV. 917, 954-55 & n.170 (May 2003) (discussing

historical conclusions in Breyer dissent).

But disagreement on the /egal consequences of the

underlying history does not alter the fact that a solid majority has

agreed on the underlying history. Notwithstanding other differences,

it remains that seven Justices agree that by excluding “sectarian”

schools from government funding, the federal and state Blaine

Amendments were designed to exclude Catholic and other religious

minority schools, and that this targeting came in hostile reaction to

their growing numbers and resistance to Protestant hegemony.

Therefore, these historical conclusions should not be disrupted.

7

B. A Large and Growing Historical Record Establishes

Conclusively That the Federal and State Blaine

Amendments Were Animated by Nativism.

The recent historical conclusions of this Court merely

summarize a long-established but growing historical record

documenting the pervasive role of nativism in debates over the

“School Question” in the United States. As set forth more fully

below, the “common schools” were founded in substantial part to

promote the teaching of — and to entrench the dominant position of —

the “common religion” of “nonsectarian” Protestantism. When

Catholics and other religious minorities threatened that dominance by

growing in numbers and resisting religious assimilation, the result

was a nativist movement that urged the passage of laws — including

the federal Blaine Amendment and similar state laws that targeted

“sectarian” schools for special disadvantage — to enforce the

movement’s hostility to these religious newcomers. Washington

State’s constitutional exclusion of “sectarian” schools from

government educational funding is a classic example.

1. Nineteenth Century “Common Schools” Inculcated the

Protestant “Common Religion,” Thus Distinguishing

Themselves from “Sectarian” Schools.

In the Northeastern States, the birthplace of the “common

school,” there was an ongoing religious debate in the 19" Century

between the Unitarian and Trinitarian 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 history of the Congregational Church and 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

Sea. _

me rat Si en site : é

initially to all Congregationalists, and, later, to most Protestants.‘

When Horace Mann developed his system of common, nonsectarian

schools, the conflict he addressed was that between Trinitarian and

Unitarian Congregationalists.* E.I.F. WILLIAMS, HORACE 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.”).

Indeed, during this period, the Justices of this Court defined

“sectarian” in relation 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:

* “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 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

— 508, a (1876) (“T]he protestant religion is regarded with peculiar

avor....”).

’ 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.”

Id. 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.” /d. Mann welcomed religion in the common schools—so long as it

was of the “common,” “non-sectarian” variety.

9

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, even this Court took for granted

the proposition that, in 1844, the “common religion” was not

sectarian. Other religions were.

2. Nativist Hostility to European Immigrants and Their

Religions Produced Fierce, Organized Opposition to

“Sectarian” Schools, Culminating in the Movement to

Pass the Federal and State Blaine Amendments.

Between 1830 and 1870, 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, and that expressed their hostility in law, including

the Blaine Amendments.

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 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.

10

— ee wa Se...

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).

This was not a fringe movement. In Massachusetts, the

Know-Nothing party swept the elections of 1854, gaining 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, 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. /d. 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 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.” /d. at

103.

Of particular interest here is the fact that the Know-Nothings |

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, at

54-56, 79, 105-106. The amendment’s proponents were open about

their motives. See, e.g., OFFICIAL REPORT OF THE DEBATES AND

PROCEEDINGS IN THE STATE CONVENTION ASSEMBLED MAY 4, 1853

11

TO REVISE AND AMEND THE CONSTITUTION OF THE

COMMONWEALTH OF MASSACHUSETTS, Vol. II, at 630 (“{I)f

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.”) (Mr.

Lothrop).

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 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]he Dutch Reformed Christian

Intelligencer denounced the Cincinnati board’s action as a move to

‘hand the public schools over to Pope, Pagan, and Satan.””).

Resistance to religious assimilation through the “common

schools” gave rise to a similarly hostile reaction elsewhere as well,

including deadly riots in Philadelphia, where nativist mobs burned

Catholics’ homes, churches and seminaries. JOHN T. MCGREEVY,

CATHOLICISM AND AMERICAN FREEDOM 40 (Norton 2003); MARTIN

E. MARTY, PILGRIMS IN THEIR OWN LAND: 500 YEARS OF RELIGION

IN AMERICA 275-76 (Penguin 1985).

The tax-funded public schools were the weapon of choice for

nativists in New York City as well. See Lemon, 403 U.S. at 628

(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.”); DIANE RAVITCH, THE GREAT SCHOOL WARS: NEW

YORK CITY, 1805-1973, at 50-52 (1974). Resistance again gave rise

to conflict, but Bishop John Hughes stationed armed men around

churches to avoid losses similar to those in Philadelphia. See

MARTY, at 276.

12

—<—«

. Soon enough, the movement to exclude Catholics from

educational funding using the legal term “sectarian” appeared on the

national stage in the form of the federal “Blaine Amendment.”

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.® Although the

Blaine language narrowly failed as.a federal constitutional

amendment, it had gained enough support that Congress thereafter

required new states — including Washington State — to adopt similar

language in their state constitutions as a condition of admittance to

the Union.* Other states voluntarily adopted constitutional

* LLOYD 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.

Id.

7

The measure passed in the House by a margin of 1 80-7, 4 CONG

REC. 5191 (1876), but fell four votes short of a supermajori in the Senate.

4 CONG. REC. 5595 (1876). _

. * See, e.g., Act of Feb. 22, 1889, 25 Stat. 676, ch. 180 (1889)

(enabling act for North Dakota, Montana, South Dakota, and Washington);

Act of June 20, 1910, 36 Stat. 557 § 26 (1910) (enabling act for Arizona and

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

(enabling act for Idaho); S.D. CONST. art. VIII § 16; N.D. Const. art. 8 § 5;

MONT. CONST. art. X § 6; WASH. CONST. art. IX § 4, art. I § 11; ARIZ.

CONST. art. IX § 10; IDAHO CONST. art. X § 5. See also 20 CONG. REC.

2100-01 (1889) (statement of Sen. Blair) (arguing in favor of Enabling Act

nt +p tego sl ete neti

control,” in part requirement would accomplish purposes

of failed federal Blaine Amendment). The fact that a Blaine Amendment

was effectively forced on the State of Washington lends an especially hollow

ring to the Petitioners’ and various amici's repeated expressions of concern

over “federalism” and “play in the joints.” See Conklin & Vaché, at 441-42

13

amendments containing similar language as part of the same

movement.’ See HAMBURGER, at 335 (“Nativist Protestants also

failed to obtain a federal constitutional amendment but, because of

the strength of anti-Catholic feeling, managed to secure local versions

of the Blaine amendment in the vast majority of the states.”);

VITERITTI, at 153. See also Stephen K. Green, The Blaine

Amendment Reconsidered, 36 AM. J. LEGAL HIST. 38, 43 (1992) (by

1876 fourteen states had enacted legislation prohibiting the use of

public school funds for religious schools; by 1890 twenty-nine states

had adopted constitutional requirements along the same lines).

Many prominent people threw their weight behind the effort.

Calling for an end to all funding for “sectarian” schools in 1875,

President Grant referred to 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, The Underlying Unity of Separation and Neutrality, 46

EMorY L.J. 43, 51 (1997)). See MCGREEVY, at 91-92 (discussing

importance of Grant’s speech launching federal Blaine Amendment);

VITERITTI, at 152-53 (same).

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-

ail —_ ne f

concluding that “realistically, there was no choice for citizens 0

Suniene whether to include some form of the Blaine Amendment).

* 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).

14

— —_—_———

Catholic hatred, '°

3. Early Judicial Interpretations of the Various State Blaine

Amendments Confirmed and Effectuated Their Nativist

Purpose.

Early litigation under the Blaine Amendments should remove

any doubt that, by excluding “sectarian” schools from government

funding, the amendments were meant to target Catholics and other

religious newcomers for special disfavor. State Blaine Amendments

and similar 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 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,'! courts

'° Oath No. Four of the APA began:

I do most solemnly promise and swear that I 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; tliat 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 I 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); See

also DONALD L. 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:

15

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 the 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 more candid about their intent to keep

Protestant religious instruction in the public schools, and “sectarian

ideas out. After rejecting a claim under the state’s Blaine

Amendment challenging Bible reading and prayer in public school,

the Iowa Supreme Court suggested that “the: plaintiff is a

propagandist, and regards himself charged with a mission to destroy

the influence of the Bible.” Moore v. Monroe, 20 N.W. 475, 475-76

(lowa 1884). But in a later decision, the same court found a

constitutional violation where a school district provided funds toa

public school operating in the same building as a Catholic parochial

school. Knowlton v. Baumhover, 166 N.W. 202, 214 (lowa 1918).

See also Kaplan v. Indep. Sch. Dist., 2'4 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.”); Nevada ex

rel. Nevada Orphan Asylum v. Hallock, 16 Nev. 373, 385 (1882)

(“The framers of the [Nevada] constitution undoubtedly considered

the Roman Catholic a sectarian church.”). Cf: Donohoe v. Richards,

38 Me. 379 (1854) (affirming dismissal of lawsuit by 15-year old girl

expelled from public school for refusing to read the King James

Version, noting that “[I]arge masses of foreign people are among us .

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.

. Selma Union High School Dist., 222 P. 801, 802-03 (Cal. 1924).

eae a ex rel. Fi ‘- 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. 25 1, 254 (Ill.

1910) (“Catholics claim that there are cases of willful perversion of the

Scriptures in King James’ translation.”).

16

— ST a ey

. . [who must] imbibe the liberal spirit of our laws and institutions,”

and concluding that “the process of assimilation [cannot] be so

readily and thoroughly accomplished as through the medium of the

public schools.”).

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 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 held that the reading of the

Lord’s Prayer and the Twenty-Third Psalm did not constitute

“sectarian or religious doctrine,” 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 r-otion 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

17

what would be termed religious schools; . . . .”) (emphasis added).

At the same time, objecting students were not excused from

“nonsectarian” religious exercises. See, €.8., McCormick v. Burt, ~

Ill. 263 (1880) (affirming judgment against Catholic plaintiff who

was suspended for not observing Bible reading rule); prtrd v.

Inhabitants of Woburn, 12 Allen 127 (Mass. 1866) (uphol —

student’s “exclusion” from school for refusing to bow her h

during public school prayer). Cf North v. Board of Trustees of er

of Illinois, 27 N.E. 54 (Ill. 1891) (holding that mandatory c ron

exercises, the avoidance of which resulted in the expulsion of the

plaintiff from the State university, did not violate the Illinois

constitution).

This pattern of application serves only to confirm what Ge

language pear wm of the Blaine Amendments already make —

that the term “sectarian” was code for “Catholic,” and that ae

excluding “sectarian” schools and their students from governmen

benefits — like the federal and state Blaine Amendments — were

designed to target Catholics for special disfavor.

4. Washington’s Blaine Amendment Is Typical of State

Laws That Target “Sectarian” Religious Groups for

Special Disfavor.

The Washington Constitution is no exception to the broader

pattern of state constitutions containing provisions designed specially

to disadvantage Catholics in the area of education. The oi

Blaine Amendment, like the federal Enabling Act that require ~"

contains the tell-tale “sectarian” category that was characteristic 0

Blaine Amendments nationwide.'* Even on its face, the term

x ls maintained or

'2 Compare WASH. CONST. art. IX § 4 (“All schoo

i i forever free from

pported wholly or in part by the public funds shall be

en amen influence.”), with Act of Feb. 22, 1889, 25 Stat. 676, ch.

1889 Washington to maintain “public sc '

pt rt and with 4 CONG. REC. 205 (1875) (“no money raised by

taxation in any State for the support of schools, or derived from any public

fund therefore, nor any public lands devoted thereto, shall ever be — =

control of any religious sect”). See also VITERITTI, at 152-53 ( bo

Washington Constitution is a direct descendent of the Blaine — Me

Utter & Larson, 15 HASTINGS CONST. L.Q. at 468 (“The language o

18

Ne Wy... wy ae _ =

“sectarian” connotes fewer than all religious groups as its target, and

the long history of its usage since the mid-19 Century (as discussed

at length above) clarifies that Catholics were especially targeted.

Moreover, the only documentation of state-level debates over

the Washington Blaine Amendment reinforces the conclusion that it

was passed for an illicit purpose. Specifically, the framers of Article

IX, Section 4 considered and rejected both replacing the term

“sectarian” with the term “religious,” and excluding “religious

exercises or instructions” entirely from public schools. THE

JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL

CONVENTION 1889, at 329, 689 (B. Rosenow ed. 1999). Thus, the

framers followed the consistent pattern of preserving “nonsectarian”

Protestant worship in government funded schools, while denying Uat

same funding to unnamed — but well-known — “sectarian” groups.

See Utter & Larson, Church and State on the Frontier: The History

of the Establishment Clauses in the Washington State Constitution,

15 HASTINGS CONST. L.Q. 451, 478 (1988) (“In distinguishing

between religion and sectarianism, the framers {of art. IX § 4]

comported with the fifty-year-old common school movement . . .

[which] was natural for a convention dominated by Blaine

Republicans and influenced by the Enabling Act’s public school

provisions.”). See also Frank J. Conklin and James M. Vaché, The

Establishment Clause and the Free Exercise ( ause of the

Washington Constitution — A Proposal to the Supreme Court, 8 UNIV.

PUGET SOUND L. REV. 411, 436-40 (1985) (discussing “convergence

of anti-Mormon and anti-Catholic sentiment in the Washington

Constitution”).

Thus, Washington State’s Blaiie Amendment, like its failed

federal predecessor, targets “sectarian” instruction for exclusion from

government educational funding in order to entrench “nonsectarian”

Protestantism and to hobble its competitors, especially Catholicism.

state Constitution’s establishment clauses is similar to that found in the

Blaine Amendment.”); Katie Hosford, The Search Sor a Distinct Religious-

Liberty Jurisprudence Under the Washington State Constitution, 75 WASH.

L. REV. 643, 650 (2000) (“[TJhe Washington Constitution’s religion

provisions derive from essentially the same intentions as those behind the

Blaine and Blair proposed amendments to the U.S. Constitution.”).

19

C. The Grossly Incomplete Historical Account

of Certain Amici Does Nothing to Undermine

the Conclusion that Nativism Animated the

Federal and State Blaine Amendments.

Certain amici labor mightily to avoid or obfuscate these basic

historical propositions. See generally Brief Amicus Curiae of

Historians and Law Scholars on Behalf of Petitioners (hereinafter

“Americans United Br.” or the “Brief”).'* For the reasons set forth

below, this Court should reject both the overall approach and

particular arguments of the Brief.

1. Amici’s Competing Account Is Marked by Glaring

Omissions.

Before addressing its particular arguments, present amici note

a series of large-scale oversights in the Brief. First, it completely

ignores the fact that seven Justices have already accepted the basic

historical propositions that it would challenge. See supra Section LA.

It makes no mention of the Zelman dissent and states inaccurately

that the Mitchell plurality reached its conclusions “without the benefit

of briefing on this subject.” Americans United Br. at 4. But see Brief

of the Becket Fund for Religious Liberty as Amicus Curiae in

Support of Petitioners (filed in Mitchell v. Helms, No. 98- 1648, Aug.

19, 1999) (available at www.becketfund.org/litigate/mitchell.pdf).

Second, the Brief either ignores entirely or gives short shrift

to the recent historical works that confirm — and, in some cases, have

already informed - the conclusions of this Court regarding the

prominent role of nativism in disputes over school funding. See, e.g.,

'3 Although Americans United for Separation of Church and State

(“AU”) funded the brief of “Historians and Law Scholars,” and although

counsel of record on the brief was AU’s General Counsel from 1992 to 2001,

AU is not listed as an amicus. See Americans United Br. I n.l. Present

amici note that the when AU was founded in 1947, its original name was

Protestants and Other Americans United for Separation of Church and State,

and that one of its attorneys was the notorious anti-Catholic polemicist Paul

Blanshard. See PHILIP JENKINS, THE NEW ANTI-CATHOLICISM: THE LAST

ACCEPTABLE PREJUDICE 39 (2003). See also PHILIP HAMBURGER,

SEPARATION OF CHURCH AND STATE 451-52, 470-72 (2003).

20

PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (Harvard

2002); JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL

CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY (Brookings 1999);

CHARLES L. GLENN, JR., THE MYTH OF THE COMMON SCHOOL (U.

Mass. 1988); WARD M. MCAFEE, RELIGION, RACE AND

RECONSTRUCTION: THE PUBLIC SCHOOL IN THE POLITICS OF THE

1870s (S.U.N.Y. 1998); Mark Edward DeForrest, An Overview and

Evaluation of State Blaine Amendments: Origins, Scope, and First

Amendment Concerns, 26 HARV. J. L. & PUB. POL’Y 551 (Spring

2003); John Jeffries & James Ryan, A Political History of the

Establishment Clause, 100 MICH. L. REV. 279 (Nov. 2001); Toby J.

Heytens, Note, School Choice and State Constitutions, 86 VA. L.

REV. 117 (2000). See also PHILIP JENKINS, THE NEW ANTI-

CATHOLICISM: THE LAST ACCEPTABLE PREJUDICE (Oxford 2003);

JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM

(Norton 2003). But see Americans United Br. at 4n.3, 18 n.47 (citing

briefly but otherwise ignoring books by Hamburger, Viteritti, and

Glenn).

Third, the Brief takes no account of the history of application

and judicial interpretation of the state Blaine Amendments. See

supra Section 1.B.3. This evidence —- which remains wholly

unanswered — serves only to confirm that by excluding “sectarians”

from government educational funding, the amendments sought

mainly to exclude Catholics.

2. Amici’s Competing Account Is Inconsistent in Its

Treatment of Remarks by Individuals.

The Brief alternately places too much and too little emphasis

on the comments of individuals in assessing the purpose of the Blaine

Amendments. A single remark by an individual, by itself, typically

has little evidentiary value in proving the existence of a broader

cultural or legal trend that animates a law. See Americans United Br.

28 n.76 (quoting United States v. O'Brien, 391 U.S. 367, 384 (1968)).

But individual statements may serve to confirm the existence of those

motivating trends when combined with other competent evidence.

See Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 540

(1993) (“Relevant evidence [for determining the object of a law]

includes, among other things, the historical background of the

decision under challenge, the specific series of events leading to the

21

enactment or official policy in question, and the legislative or

administrative history, including contemporaneous statements made

by members of the decisionmaking body.”) (citing Arlington Heights

v. Metro. Housing Devel. Corp., 429 U.S. 252, 267-68 (1977)). But

the Brief has it exactly backwards: it diminishes hostile remarks

when they comport with other evidence of broader trends and

motives, but highlights remarks (or their absence) when other

evidence points in the opposite direction.

For example, in discussing the purpose of Washington State’s

Blaine Amendment, the Brief discounts as meaningless the fact that

Senator Blair argued for the federal Enabling Act’s requirement that

state constitutions guarantee “public schools . . . free from sectarian

control,” in part because the requirement would accomplish the

purposes of the failed federal Blaine Amendment. See 20 CONG.

REC. 2100-01 (Feb. 20, 1889) (statement of Sen. Blair) (praising

failed Blaine Amendment and discussing the importance of

preserving “nonsectarian” Protestantism in the common schools,

while excluding “sectarian” doctrine). In isolation, this statement

might well be meaningless. In context, however, it is telling, because

it resonates with so much other evidence linking the Enabling Act

and the consequent Washington Blaine Amendment to the original

federal amendment and its purposes.

At the same time, the Brief emphasizes that that there were

no recorded comments of individuals expressing particular hostility

toward Catholics in the state-level debates over the Washington

Blaine Amendment. Americans United Br. 29-30. If, as the Brief

correctly notes elsewhere, id. at 28 n.76, such comments are of little

value standing alone, their absence should be equally insignificant.’

Their absence bears even less meaning in this case, because no

remarks from the Constitutional Convention of 1889 were officially

recorded, as the Brief also recognizes elsewhere. Jd. at 28. In any

event, the presence or absence of comments by legislators makes little

difference in the face of substantial other evidence, discussed above,

indicating that Washington’s Blaine Amendment, like so many

'4 The Brief similarly emphasizes the absence of hostile remarks by

framers of the Wisconsin and Oregon constitutions. See Americans United

Br. at 16. That silences meaningless as well.

22

le SS ce wee -

others, was passed out of the same preference for “nonsectarian”

Protestantism over “sectarian” Catholicism.

3. Amici '’s Competing Account Emphasizes Motives That

Did Not Significantly Animate the Federal and State

Blaine Amendments.

In order to diminish the predominant nativist purpose of the

federal Blaine Amendment, its forerunners, and its progeny, the Brief

attempts to attribute additional legislative purposes to these laws.

These attempts fail.

The first additional motive is what the Brief describes

generally as the “no-funding principle,” which it associates with

Thomas Jefferson and James Madison. Americans United Br. at 5-8.

But what primarily concerned Jefferson, Madison, and others at the

time was the practice of forced tithes, of “religious taxes,” id. at 7,

collected especially to support churches and their ministries. See

HAMBURGER, at 9-10 (dissenters who shaped First Amendment

sought to eliminate “state laws that, most notably, gave government

salaries to ministers on account of their religion.”). Laycock,

“Nonpreferential” Aid to Religion: A False Claim About Original

Intent, 27 WM. & MARY L. REV. 875, 916 (1986) (“The substantial

political resistance to establishment focused on tax support for

churches.”). This is not the principle reflected in the federal and state

Blaine Amendments: they targeted only “sectarian” religious schools

for exclusion from government funding, precisely so that

“nonsectarian” religious schools could still receive those funds.

Notably, the Brief does not argue — nor could it — that either Jefferson

or Madison advocated the special exclusion of religious schools —

least of all schools of particularly disfavored denominations — from

government funds allocated for general education.'*

'S Indeed, recent scholarship has explained how the framers’

concem to avoid such religious assessments, and other legitimate

separationist concerns, were later perverted and invoked to serve various

nativist purposes, especially opposition to Catholic education. See, e.g.,

HAMBURGER, at 480 (“Separation became a substantial part of American

conceptions of religious liberty only in the nineteenth and twentieth

centuries, when Americans felt growing fears of churches, especially the

Catholic church.”), VITERITTI, at 153 (“{Blaine’s] name would live in

23

The Brief emphasizes that, in 1825, the first “sectarian”

school to be excluded from public educational funding in New York

City was Baptist, not Catholic. Americans United Br. 9-12; see

RAVITCH, at 20-21. That does not alter the fact that, at the time of

this denial, the Free School Society continued funding its

“nonsectarian” schools, which touted a curriculum including “the

fundamental principles of the Christian religion, free from all

sectarian bias.” Americans United Br. 9. At a minimum, then,

denying the Baptist school cannot fairly be said to serve the benign

“no funding” principle that the Brief would ascribe to the Blaine

Amendments. Nor does an initial denial to Baptists change the fact

that, once Catholic immigrants started flooding into the City a few

years later, the “sectarian” schools became overwhelmingly Catholic,

and the term came to be identified with them. See supra at 9-10

(noting that “sectarian” and “nonsectarian” initially distinguished

among Protestant denominations until wave of Catholic immigration).

The Brief also suggests that the Know-Nothings’ rise to

political dominance in Massachusetts in 1854 reflected no broader

trend and had no spillover effects into other states or their laws. See

Americans United Br. 14-18. But see VITERITTI, at 150 (“The ugly

experience in Massachusetts signaled an erupting national mood.”);

Laycock, 27 WM. & MARY L. REV. at 918 (“The anti-Catholic, anti-

immigrant Know Nothing Party would sweep elections in eight

states.”). Strangely, the Brief cites in support a series of unspecified

constitutional amendments that were passed within about five years

of that watershed event, and suggests no other reason why these states

would change their fundamental law on this particular issue within

that time-frame.'® Americans United Br. 15. See also MCGREEVY at

perpetuity as a symbol of the irony and hypocrisy that characterized much

future debate over aid to religious schools: employing constitutional

language, invoking patriotic images, appealing to claims of individual rights.

All these ploys would serve to disguise the real business that was at hand:

undermining the viability of schools run by religious minorities to prop up

and perpetuate a publicly supported monopoly of government-run schools.”).

'6 The Brief claims that Michigan's 1835 amendment “served as the

model” for these other states, id. at 15, but does not attempt to explain why

they decided to adopt similar provisions one or two decades later, just as

Catholic immigration was increasing, and just as the Know-Nothings

reached their peak in Massachusetts.

24

a

———

40 (noting that, by 1852, “legislators in almost every state wi

significant Catholic population — including Stiseadenion aumdion

Pennsylvania, Ohio, Michigan, New Y ork — were embroiled in fights

over whether to aid Catholic schools or eliminate the King James

Bible and Protestant hymns from the common schools.”); VITERITTI,

at 151 (noting that, by mid-century, Catholics were lobbying for

equal treatment in education in several states including, among

others, Illinois, Michigan, Minnesota, Ohio and California).

But even if a few earlier amendments in some states were

somehow isolated from the trend typified by the Know-Nothings in

Massachusetts, later laws were more explicit in targeting “sectarian”

education for disfavor. See, e.g., MINN. CONST. art. XIII, § 2 (1857)

. ae As To Aiding Sectarian School. In no case shall any

1¢ money or property be appropriated or used for the support

schools wherein the distiactive doctrines, creeds or tents of say

particular Christian or other religious sect are promulgated or

taught.”); WIS. CONST. art. X, § 3 (1848) (establishing public schools

and prohibiting only “sectarian” instruction therein). See also

JORGENSON, at 187-204 (describing anti-parochial school legislation

of 1889 in Illinois and Wisconsin based on recently failed attempts in

oe id. at enti (describing similar Oregon legislation

uneeteed a

poh ypmednomn wn in Pierce v. Society of Sisters, 268 U.S.

Regarding the federal Blaine Amendment itself, the Brief

emphasizes that concerns about federalism were expressed in the

legislative debates. Americans United Br. at 24-25. But federalism

was not an additional motive for passing the Blaine Amendment, it

was a reason to reject it. See id. at 26. And, of course, the Brief

ignores the conclusion of other scholars, supported by numerous

examples, that “[nJativistic appeals and accusations marked the

congressional debate over the Blaine Amendment,” and that

[without expressly identifying any wrongful sectarian instruction,

the ensuing debate repeatedly focused on the divisiveness of separate

schools for Roman Catholics.” Utter & Larson, 15 HASTINGS CONST.

—- So aa at 93 (documenting expressions of

i icism in debates i

. surrounding federal Blaine

In sum, the Brief fails to provide sufficient reason for this |

25

istori i f its

Court to depart from the historical conclusions of seven 0

Justices. The Brief suffers from several grave omissions; it treats

evidence of individual remarks inconsistently; and it is unpersuasive

in suggesting additional motives for the Blaine Amendments.

OT

Il. RELIGION-BASED HOSTILITY AND FEAR ARE N

LEGITIMATE BASES FOR GOVERNMENT ACTION.

Another group of amici acknowledges that anti-Catholic fears

fueled the movement for the Blaine Amendments, but argues instead

that at least some of those fears were “legitimate.” Brief Amici

Curiae of the American Jewish Congress, ef al. at 25-30 (hereinafter

“AJCongress Brief”). This argument, too, should be rejected.

A. Even if It Were Not So Badly Distorted, the Account

by Certain Amici of Nineteenth Century Catholic Beliefs

Has No Place in the Decision-Making of This Court.

The AJCongress Brief argues that, although “raw anti-

Catholicism” played a significant role in the Blaine Amendments, it

was not a “but for” cause of those laws, because other, more

respectable forms of anti-Catholicism were motivating factors as

well. Jd. at 26. On this account, the Blaine Amendments “were

undertaken in response to positions of the Catholic Church as

authoritatively enunciated by consecutive Popes in well publicized

encyclicals,” prompting “a legitimate fear” of Catholic domination.

Id. at 26-27.

Thus, these amici ask the Court to deem “legitimate” the

opposition to certain (alleged) Catholic doctrines. But this Court may

not legitimize opposition to those doctrines any more than it may

condemn the doctrines itself. See Employment Division v. Smith, 494

U.S. 872, 887 (1990) (noting “the unacceptable business “

evaluating the relative merits of differing religious claims. ");

McDaniel v. Paty, 435 U.S. 618, 626 (1978) (“The Free Exercise

Clause categorically prohibits government from regulating,

prohibiting, or rewarding religious beliefs as such.”); West Virginia

State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is

any fixed star in our constitutional constellation, it is that no official,

high or petty, can prescribe what shall be orthodox in politics,

nationalism, religion, . . . .”); Watson v. Jones, 80 U.S. 679, 728

26

—_

(1871) (“The law knows no heresy, ... .”). This is dangerous

constitutional territory that this Court should avoid entirely.

One way to avoid this issue is to reject its dubious factual

premises. The argument depends on the claim that most anti-Catholic

support for Blaine Amendments came not from the “raw” or “crude”

bigots, id. at 29, 30, but from non-Catholic Americans who

assiduously followed the latest in Vatican pronouncements.” See id

at 27-28. Notably, amici offer no evidence on the relative

proportions of each type of anti-Catholic supporter of Blaine

Amendments. Although anti-Catholicism in the United States hardly

originated in the latter half of the 19" Century, '* its intensification at

that time is much more plausibly explained by waves of Catholic

immigration than by whatever few Protestants may have read more

encyclicals than most Catholics.

But even if the Court were willing to address the question, it

should reject the claim that anti-Catholic fears and hostility

'’ It is difficult to imagine a doctrinal future for any legal distinction

between “raw” or “crude” hostility to religious belief, and whatever

“legitimate” form the AJCongress Brief envisions. In any event, such a

subjective and unworkable distinction has no doctrinal past. This Court has

refused to distinguish “good” government hostility to religion and “bad”

government hostility to religion, but instead has condemned them all. See

Lukumi, 508 U.S. at 532 (“{T]he First Amendment forbids an official

purpose to disapprove of a particular religion or of religion in general.”).

Similarly, this Court has stated — without further differentiation — that “mere

negative attitudes, or fear,” are not legitimate bases for government action.

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985).

'® RAY ALLEN BILLINGTON, THE PROTESTANT CRUSADE 1800-1 860:

A STUDY OF THE ORIGINS OF AMERICAN NATIVISM | (1938) (“Hatred of

Catholics and foreigners had been steadily growing in the United States for

more than two centuries before it took political form with the Native

American outburst of the 1840s and the Know-Nothingism of the 1850s.

These upheavals could never have occurred had not the American people

been so steeped in antipapal prejudice that they were unable to resist the

nativistic forces of their day.”); MARTY, at 45-47 (discussing role of

Historian John Foxe’s Book of Martyrs in “fir[ing] the anti-Catholic spirit

that the English needed to spur them to mission and conquest” in the new

world in the 16" Century).

27

prompting the Blaine Amendments were “legitimate.” American

Protestants did indeed take Vatican pronouncements, like the

Syllabus of Errors, See Encyclical Letter of His Holiness Pope Pius

IX, Quanta Cura (1864), out of context, for they were indeed

directed at the radical anti-clericalism that characterized the recent

European revolutions — not at the United States. See MCGREEVY, at

21, 37, 96-98. See also JOHN COURTNEY MURRAY, WE HOLD THESE

TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION

67 (1960) (distinguishing American constitutionalism “sharply . . .

from the system against which the Church waged its long-drawn-out

fight in the nineteenth century, namely, Jacobinism, . . +: ).

American Catholics promulgated and insisted on this interpretation of

the documents of their own Church, as amici seem to et

but that in tation was widely rejected by a relentlessly suspicious

ia en none of these Vatican documents altered the

consistent pattern of behavior of American Catholics to seek only

equal treatment, in educational funding and elsewhere. See, e.g.,

Orestes Brownson, The Know-Nothings, BROWNSON’S QUARTERLY

- REVIEW 117 (Jan. 1855) (“[The Church’s] wish is to pursue her

spiritual mission in peace, and keep aloof from politics, so long as

they leave her the opportunity.”). Nonetheless, amici would have this

Court deem “legitimate” the sweeping conclusion of Blaine

Amendment supporters that “the Catholic Church sought exclusive

political power, and that, if it could, it would establish itself as the

sole official church.” AJ Congress Br. at 27. If addressed at all, this

'? Amici note with particular dismay that the AJCongress Brief itself

still refuses to accept as authoritative 19° Century American Catholics

interpretation of their own Church’s documents, describing it instead as an

“effort[] to explain away the Syllabus and the encyclicals.” AJCongress Br.

at 28. Similarly, the Brief suggests that American Catholics interpretation

reflected that they did not take the teachings of the Pope seriously. /d. at 29

(“Defenders of the existing order were legitimately entitled to forestall the

possibility that, contrary to the protestations of American Catholics, the

Church’s authoritative spiritual leader was to be taken seriously, soos BD As

it turns out, 19” Century American Catholics did a better job interpreting

Vatican documents than their contemporary detractors. See VAT. Il,

Dignitatis Humanae (Deciaration on Religious Freedom) § 3 (1965) (“In all

his activity a man is bound to follow his conscience in order that he may

come to God, the end and purpose of life. It follows that he is not to be

forced to act in a manner contrary to his conscience.”).

28

claim should be rejected.

B. The Fact That a Group Adheres to a Set of Unpopular

Religious Beliefs May Not Serve as the Basis for

Excluding That Group from Government Benefits.

Even if this Court were competent to engage in the evaluation

of doctrine invited by the AJCongress Brief — and even if that Brief’s

account of Catholic doctrine of the late 19" Century were factually

and theologically accurate — allegedly legitimate fears of Catholic

doctrine still cannot justify the exclusion of Catholic people and

groups from government benefits. See Romer v. Evans, 517 U.S.

620, 634 (1996) (“‘a bare . . . desire to harm a politically unpopular

group cannot constitute a legitimate governmental interest.’”)

(quoting Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)).

In other words, the Blaine Amendments were not a mere

declaration that a particular Catholic doctrine was incorrect, un-

American, or otherwise disfavored by a majority. (To be sure, that

would be constitutionally problematic for different reasons, but that is

not the issue here.) Instead, the Blaine Amendments were designed

to (and still do) impose special legal disadvantages on Catholics

because their beliefs were feared or hated by a sufficient majority.

Lukumi, 508 U.S. at 533 (quoting Smith, 494 U.S. at 877). The

government may not exclude Catholics from educational funding

because a majority harbors fear or hostility toward their beliefs, any

more than it may exclude Jews or Muslims from food stamp

programs or garbage pick-up because a majority harbors fear or

hostility toward their beliefs. See Palmore v. Sidoti, 466 U.S. 429,

433 (1984) (“Private biases may be outside the reach of the law, but

the law cannot, directly or indirectly, give them effect.”).

29

For the foregoing reasons the judgment of the Court of

CONCLUSION

Appeals should be affirmed.

September 8, 2003

Respectfully submitted,

KEVIN J. HASSON*

ROMAN P. STORZER

ANTHONY R. PICARELLO, JR.

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1350 Connecticut Ave., NW, Suite 605

Washington, DC 20036

PROF. RICHARD W. GARNETT

NOTRE DAME LAW SCHOOL

Notre Dame, IN 46556

Counsel for Amici Curiae

*Counsel of Record

30

APPENDIX A

a AS Sass iter, =

Historians

Thomas E. Buckley, S.J.

Professor of American Religious History

Jesuit School of Theology at Berkeley / Graduate Theological

Union

1735 LeRoy Avenue

Berkeley, CA 94709

Author: CHURCH AND STATE IN REVOLUTIONARY VIRGINIA,

1776-1787 (U. Va. 1977)

Charles L. Glenn, Jr.

Professor and Chairman, Department of Administration,

Training and Policy Studies

Fellow, University Professors Program

Boston University

2 Sherborn Street

Boston, MA 02215

Author: THE MYTH OF THE COMMON SCHOOL (U. Mass.

1988)

Gary D. Glenn

Presidential Teaching Professor

Department of Political Science

Northern Illinois University

DeKalb, IL 60115

Mark Hall

Associate Professor

Department of History and Political Science

George Fox University

Newberg, OR 97132

Author: THE POLITICAL AND LEGAL PHILOSOPHY OF JAMES

WILSON, 1742-1798 (U. Mo. 1997)

ilip Jenkins

7 Distinguished Professor of History and Religious Studies

Pennsylvania State University

407 Weaver Building

University Park, PA 16802-5500

Author: THE NEW ANTI-CATHOLICISM: THE LAST

ACCEPTABLE PREJUDICE (Oxford 2003)

George Marsden .

Francis A. McAnaney Professor of History

Department of History

University of Notre Dame

Notre Dame, IN 46556

Author: RELIGION AND AMERICAN CULTURE (Harcourt Brace

1990)

Ward M. McAfee

Professor of History .

California State University, San Bernardino

5500 University Parkway

San Bernardino, CA 92407

Author: RELIGION, RACE AND RECONSTRUCTION: THE

PUBLIC SCHOOL IN THE POLITICS OF THE 1870s (S.U.N.Y.

1998)

Wilfred M. McClay . o

SunTrust Bank Chair of Excellence in Humanities

University of Tennessee at Chattanooga

615 McCallie Avenue

Chattanooga, TN 37403-2598

hn T. McG .

7 John A. O'Brien Associate Professor and Chair

Department of History

~~ University of Notre Dame

Notre Dame, IN 46556

Author: CATHOLICISM AND AMERICAN FREEDOM: A

HISTORY (Norton 2003)

Michael Novak

George Frederick Jewett Scholar in Religion, Philosophy,

and Public Policy

American Enterprise Institute for Public Policy Research

1150 Seventeenth Street, N.W.

Washington, DC 20036

Author: ON TWO WINGS: HUMBLE FAITH AND COMMON

SENSE AT THE AMERICAN FOUNDING (Encounter 2001)

Joseph P. Viteritti

Visiting Professor

Department of Politics

130 Corwin Hall

Princeton University

Princeton, NJ 08544-1012

Author: CHOOSING EQUALITY: SCHOOL CHOICE, THE

CONSTITUTION, AND CIVIL SOCIETY (Brookings 1999)

Legal Scholars

Gerard V. Bradley

Professor of Law

University of Notre Dame Law School

Notre Dame, IN 46556

Author: CHURCH-STATE RELATIONSHIPS IN AMERICA (1987)

Mary Ann Glendon

Learned Hand Professor of Law

Harvard University Law School

Cambridge, MA 02138

Michael Heise

Professor

Cornell Law School

310 Myron Taylor Hall

Ithaca, NY 14853-4901

Co-author (with James E. Ryan): The Political Economy of

School Choice, 111 YALE L.J. 2043 (June 2002)

Douglas W. Kmiec

Professor of Constitutional Law and Caruso Family

Chair in Law

Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, CA 90263

William G. Ross

Professor

Cumberland School of Law

Samford University

800 Lakeshore Drive

Birmingham, AL 35229

Author: FORGING NEW FREEDOMS: NATIVISM, EDUCATION

AND THE CONSTITUTION, 1917-1927 (U. Neb. 1994)

Gregory C. Sisk

Professor of Law

University of St. Thomas School of Law

1000 La Salle Avenue

Minneapolis, MN 55403-2015

John Witte, Jr.

Jonas Robitscher Professor of Law and Ethics

Director of Law and Religion Program

Director of Center for the Interdisciplinary Study of Religion

Emory Law School

1301 Clifton Road

Atlanta, GA 30322

Author: RELIGION AND THE AMERICAN CONSTITUTIONAL

EXPERIMENT: ESSENTIAL RIGHTS AND LIBERTIES (Westview /

Perseus 2000)