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
At 01:06 AM 2/26/2004 -0500, you wrote:
It's great to see Professor Garnett contributing to the list on Davey; he has addressed these issues with uncommon insight, rigor and nuance, and our discussion undoubtedly will be richer and more thought-provoking for his participation.
A great number of things in the Chief's opinion may, and certainly will, be subject to serious debate. I am a bit perplexed, however, that Prof. Garnett has saved his strongest fire for the footnote 7 discussion of the Blaine Amendment. For one thing, I doubt very much that the outcome of Davey turned on the historical question of "intent"; I think it highly unlikely that the Court would be inclined to permit the "dead hand" of 115-year-old underlying intent at the federal level to determine the constitutionality of a modern state program. In fairness to Rick, however, that is not what troubles him. He is, instread, "shock[ed]" by the "grossly mistaken assertion that such [anti-Catholic] views had no role in . . . relation to the Washington provisions at issue," and by "the Court's naked assertion that the relevant Washington provisions, unlike the proposed Blaine Amendment proper, owe nothing to anti-Catholicism."
There is definitely a disconnect here, and I would genuinely welcome clarification.
There are two pertinent Washington Constitutional provisions, both of which were included in the original Washington Constitution.
The first, Article IX, section 4, provides that "[a]ll schools maintained and supported wholly or in part by the public funds shall be forever free from sectarian control or influence." Such a provision certainly was the result of the federal enabling Act of 1889, which required the state constitution to include a provision "for the establishment and maintenance of systems of public schools, which shall be ... free from sectarian control." As I understand the history (which is to say, far less than Prof. Garnett), it is this sort of prohibition on "sectarian control or influence" over government funds that was, at least in part and in some jurisdictions, animated by anti-Catholic animus.
But that is not the constitutional provision that was the genesis of the statute at issue in Davey.
Instead, the "divinity major" statute was an attempt to implement a particular "no funding of religious instruction" prohibition in the second relevant constitutional provision, Article I, section 11, which reads as follows:
"Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. 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. Provided, however, That this article shall not be so construed as to forbid the employment by the state of a chaplain for such of the state custodial, correctional, and mental institutions, or by a county's or public hospital district's hospital, health care facility, or hospice, as in the discretion of the legislature may seem justified. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony."
This Amendment was not required by the Enabling Act. The title and the first sentence plainly were not animated by religious animus -- they find their genesis and inspiration in the federal Free Exercise Clause and similar tenets of religious freedom. The proviso about chaplains -- added in 1903 -- is a remarkable pro-accommodationist provision. The final sentence is clearly inspired by the religious test ban of article VI of the Federal Constitution. That leaves the "no public money for religious instruction" sentence. Was that sentence -- and that sentence alone in the midst of a patently pro-religious-freedom amendment -- motivated by anti-Catholic animus? I don't know. But as far as I do know, nothing in the briefs to the Court gave any indication that it was.
The State, for its part, claimed in its Reply Brief that "[n]othing in the history of the adoption of article I section 11 suggests that it was the product of anti-Catholic prejudice," and explained -- quite plausibly, at least on the face of things -- that inclusion of the "no funding" prohibition as part of a broader statement of free exercise and free conscience "traces back to the Virginia Bill of Religious Freedom" and its admonition that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." The protection of individual rights of conscience by prohibiting the use of tax dollars for certain religious purposes, the State argued, was "a concept that dates from the earliest days of the republic to modern times," and was "expressed in a comment to a draft constitution placed before Washington's 1889 constitutional delegates: 'The right to worship according to one's own conscience has been recognized as an absolute and fundamental possession of every man, from before the foundation of the republic; the right not to worship at all, nor contribute to the support of religion, is now considered to rest upon equally firm foundations.'" (quoting W. Lair Hill, Washington: A Constitution Adapted To The Coming State; Outline And Comment On Leading Features Submitted For Examination, The Oregonian, July 4, 1889, at 9).
This all sounds very plausible to me. The affinity between the sentence in question and the protection-of-conscience principle in the Virginia Bill of Religious Freedom is fairly conspicuous.
Perhaps there is contrary evidence that this sentence was motivated by anti-Catholic animus. But I saw -- and more importantly, the Chief saw -- nothing in the briefs to suggest any such evidence. I must concede that I did not go back today to review all of the briefs. But I did check the briefs submitted by Davey, by the SG, and by Prof. Garnett on behalf of the Becket Fund.
The U.S. brief has a conclusory footnote (footnote 5) that simply asserts, without any support, that "[t]he Washington constitutional provision on which petitioners have relied in this case is a 'Blaine Amendment' that has its origins not in the type of neutrality toward religion promoted by those like Jefferson and Madison, but in the 'pervasive hostility to the Catholic Church and to Catholics in general' that existed in the late 19th century."
Davey's brief has a perfunctory footnote about the Blaine Amendments (footnote 8) that does not even purport to address the Washington Constitution, let alone article I, section 11. (And Davey's counsel at oral argument declined to say anything in response to the unequivocal assertions of the State's attorney that this was not a Blaine Amendment and was not motivated by anti-Catholic animus.)
The Becket Fund Brief, to its credit, contains a more informative two-page discussion (pp. 18-19) dedicated to demonstrating that the Washington Constitution "contain[s] provisions designed specially to disadvantage Catholics in the area of education." But that discussion is focused on article IX, section 4 -- in particular, its inclusion of the reference to "sectarian control or influence" -- and does not specifically address the constitutional provision at issue here, namely, the "Religious Liberty" provisions of article I, section 11.
It is therefore completely understandable that the Chief could point to no evidence that Article I, section 11, "the relevant constitutional provision," was inspired by anti-Catholic animus. Nor (in contrast to Justice Thomas's opinion in Mitchell v. Helms) did Justices Scalia and Thomas even mention the Blaine Amendment, let alone attempt to canvass evidence that section 11 was the product of anti-Catholic evidence. That silence, to me, speaks volumes.
Let me be clear: I am not saying that there is no such evidence. Perhaps there is -- and I'd be very interested in seeing it. I am simply explaining why, in the absence of the presentation of any such evidence to the Court, it was reasonable for the Court to assume that the "no funding" provision of art. I, section 11 had its origin in the Virginia Bill of Religious Freedom, and was motivated by the same principles of religious freedom that evidently inspired the remainder of section 11 and that provided its title ("Religious Freedom").
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Wednesday, February 25, 2004 9:06 PM
Subject: FW from Rick Garnett: Re: Locke v. Davey
> (Rick Garnett wrote this post, and asked me to forward it:)
>
> In my view, the Court's opinion in Davey is extremely disappointing.
> Particularly frustrating, though, is the utterly unconvincing effort, in a
> footnote, to bracket the anti-Catholicism surrounding the Blaine Amendment,
> and the grossly mistaken assertion that such views had no role in or
> relation to the Washington provisions at issue (and the many others like
> it).
>
> In light of the work done by Philip Hamburger, John McGreevy, and many
> members of this list -- the content of which was made available to the Court
> in several amicus briefs (including one in which, I admit, I participated)
> -- the Court's naked assertion that the relevant Washington provisions,
> unlike the proposed Blaine Amendment proper, owe nothing to anti-Catholicism
> is (to me anyway), well, shocking.
>
> To be clear, my claim here is not that historical facts about 19th century
> anti-Catholicism should control the outcome in this case. It is certainly
> not that present-day defenders of Washington's policy are anti-Catholic. I
> had hoped, though, that the facts would not be ignored or misrepresented.
> Justice Black, perhaps, was excusably ignorant in the construction of the
> narrative he constitutionalized in Everson. I don't think this Court has
> that excuse.
> _______________________________________________
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>
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