I greatly appreciate Rick's gracious and thoughtful
response. I hope that when he returns to South Bend he'll be able to fill
us in further on this question.
Rick's principal argument with respect to the "No
public money" provision of article 11, section 1 appears to be that "the provision would not exist, in my
judgment, but for the threats to American values that -- many believed
-- were posed by Catholicism."
Perhaps this is
correct. And perhaps "[t]his connection is established in the recent work of Hamburger,
McGreevy, and many others." As I said, I do not know the history
nearly as well as Rick, or Hamburger, McGreevy, etc. But I do find it
fairly odd -- that is to say, telling -- that none of the parties or amici in
the case, nor Justices Scalia and Thomas, even attempted to
demonstrate that anti-Catholicism was a "but for" cause of Washington's adoption
of this particular sentence. Therefore, I think it was completely
understandable -- inevitable, even -- that the Court "quickly . . . dismissed"
the purported connection to anti-Catholicism. After all, the sentence is
included in the midst of a constitutional provision that in every other respect
is manifestly a striking affirmation of a dedication to protection of religious
liberty -- obviously not animated by anti-Catholicism. Moreover,
as the Court emphasizes, the sentence has its obvious genesis in Jefferson's
Bill for Religious Liberty, Madison's Memorial and Remonstrance, and the
Constitutions of eight states enacted between 1776 and 1802 -- years
before James Blaine was even the proverbial twinkle in his parents' eye.
In light of all that, I would think that it would take a great deal of evidence
to persuade the Court that anti-Catholicism was a "but for" cause of the "No
public money" sentence. But, as far as I know, the Court was offered
no such evidence.
Of course, to say that the "No funding"
principle has a venerable pedigree, or even to say that it was motivated by that
esteemed historical precedent rather than by, e.g., anti-Catholicism, is
not to demonstrate why, or in what way, the
principle furthers religious liberty; and therefore the fact that the state
interest is "historic," and presumptively not motivated by religious animus or
anti-Catholicism, does not explain why it is
"substantial." (The Chief juxtaposes these two adjectives at page
11; but he never quite gets around to explaining the basis for the
latter.) In my eyes, this is the great, unanswered question in
the opinion -- in what way, exactly, does the "No funding" principle protect
religious liberty or conscience? That is the debate that the briefs, and
the Court, should have engaged, but unfortunately did
not.
----- Original Message -----
Sent: Thursday, February 26, 2004 11:12
AM
Subject: Re: Locke v. Davey -- Blaine
Amendments
Dear all,
I appreciate
Marty's kind words, and accept his entirely appropriate critique of my post
yesterday regarding Davey. Marty is right to remind us -- that is, to
remind me -- that "there are two pertinent
Washington Constitutional provisions, both of which were included in the
original Washington Constitution."
I'm "on the
road" today, so I apologize for my inability to clarify my earlier remarks, or
document my earlier claims, to the extent I would like.
I do want to
emphasize again, though, that (like Marty) I did not expect that the
connections between 19th Century anti-Catholicism and provisions like those at
issue in Davey would be outcome-determinative. As many on this list have
shown (I'm thinking, in particular, of Chip Lupu, Steve Smith, and Bob
Tuttle), no-aid separationism can be respectably and powerfully defended today
without relying on anti-Catholicism.
I should also say -- and I regret
that I have not always been clear on this point in my own work -- that I
regard "anti-Catholicism" as something distinguishable from "bigotry."
(I try to flesh out this argument in a short essay, "The Theology of the
Blaine Amendments,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=455220) There is and
has long been such a thing as "anti-Catholic bigotry", but I (now) believe it
is more important to think about the arguments of those who feared and
disagreed with, and not simply disliked, Roman Catholicism.
As Marty
points out, in the Becket Fund brief -- to which I contributed, and which was
endorsed by a number of distinguished historians, including John Witte,
Charles Glenn, George Marsden, etc. -- discussed the Blaine Amendments, their
progeny, and their origins in a general way. The brief also addressed
the Washington Constitution, and Article IX, Sec. 4 specifically. It did
not speak directly to Section 11, though it did respond at some length to the
suggestion that motives other than anti-Catholicism (again, I would not want
to say that anti-Catholicism was always mere "animus") animated Washington's
anti-aid provisions.
In my view -- and I realize that, for now, this is
an assertion, not a demonstration -- the "original" meaning and purpose of
Sec. 11, unlike, perhaps, its "social meaning" today, cannot be divorced from
the thoroughgoing anti-Catholicism that shaped and permeated 19th Century
American thinking about religious liberty, citizenship, and education.
In my judgment, the evidence establishes the fact that legislative provisions
and public arguments speaking to the funding of religious (or "sectarian")
schools and education are in large measure the result of concerns about the
loyalty of Catholics and the compatibility of Catholicism with American
nationalism and liberal -- and, at the time, Protestant -- citizenship.
To be sure, the text from Section 11, cited by Marty -- "No public money or property shall be appropriated for or
applied to any religious worship, exercise or instruction, or the
support of any religious establishment" -- certainly does not sound
"anti-Catholic," and it probably does not today have an "anti-Catholic" social
meaning. Still, the provision would not exist,
in my judgment, but for the threats to American values that -- many believed
-- were posed by Catholicism. This connection is established in
the recent work of Hamburger, McGreevy, and many others. And, I believe
that the Court was too quick to dismiss it.
All that said,
thanks to Marty for "calling" me on this point.
best,
Rick
Garnett
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