Dear all,
Thanks very much to Michael for forwarding the Florida court's decision. I am not surprised by the result, but I am surprised by (what I regard as) the court's failure meaningfully to confront the original "social meaning" and purpose of Florida's no-aid provision and other similar provisions.
For example: In footnote 9, the Florida court states that "[w]hether the Blaine-era amendments are based on religious bigotry is a disputed and controversial issue among historians and legal scholars" and that "[some] commentators argue . . . that anti-Catholic bigotry did not play a significant role in the development of Blaine-era no-aid provisions in state constitutions." (True enough). For the latter proposition, though, the court cites only (1) a detailed article on the Indiana no-aid provision, which observed that, in 1850, Indiana had very few Catholics and concluded that the Indiana provision was neither nativist nor anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that the provision at issue in that case had not been connected by Davey to the Blaine Amendment. But does Indiana's situation in 1850 -- even assuming that the article's author is correct -- really support the statement that Florida's 1868 (and 1885) no-aid provision was not tainted by post-war nativism? What about the Chief Justice's observations about what he regarded as the lack of a connection between one particular Washington provision and the Blaine Amendment "movement" generally? (Now, I have not done the historical research on Florida's provision specifically; perhaps it really is the case that Florida's no-aid provision was anomalously free of nativist support. But the Florida court's citations do not, in my view, make the case).
What's more -- Putting aside the fact that concern about the perceived anti-democratic effects and aims of 19th Century Catholicism need not be regarded as "bigotry" (even if, as I believe, this concern was, for the most part, misplaced); and putting aside also the question whether, under current doctrine, it matters today that the Florida no-aid provision reflected (among other things), a widespread desire to constrain the influence of Catholicism (in the same footnote, the court suggests that the 1968 retention of the provision removes any possible taint); I am quite surprised by the court's casual confidence that anti-Catholicism did not play a role in the adoption of the no-aid provision. There is, in my view, an "innocents abroad" quality to the discussion. On page 15, for example, the court quotes Justice Brennan's (questionable) claim in Lemon that the no-aid provisions and the common-school movement reflected a desire for "secular public" schools, rather than "private sectarian" schools. And, in footnote 7, the court notes President Grant's 1875 call for a no-aid amendment to the United States Constitution, without mentioning at all the overtly anti-Catholic (which does not, again, mean "bigoted") nature of Grant's appeal (see, e.g., John T. McGreevy, Catholicism and American Freedom (2003)).
I know that Marc Stern, Steve Green, and others have written powerfully and well that the Blaine Amendments are more complicated than some of the amendments' critics (including, perhaps, me) have appreciated. Still . . . I'd welcome others' reactions.
Best,
Rick Garnett Notre Dame Law School
At 03:11 PM 11/12/2004, you wrote:
The First District Court of Appeal today again held Florida's voucher system violated the "no aid" provision of Florida's constitution. The 114 page opinion with dissents, is available on line at:
http://www.1dca.org/opinion/opinions2004/11-12-04/02-3160rh.pdf (en banc)
Michael R. Masinter Visiting Professor of Law On Leave From University of Miami Law School Nova Southeastern University (305) 284-3870 (voice) Shepard Broad Law Center (305) 284-6619 (fax) [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel
_______________________________________________
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
