It's a Blaine Shame

Whenever current events are concerned, I always tell people that I'm behind on the news--unless it's something of 9/11 proportions--because news in general really stresses me out and depresses me, so I avoid it.

But I am usually not 130 years behind.

It was about that long ago that a certain Henry G. Blaine introduced an amendment to the Federal Constitution that would forever ban any revenues from the government going to support "sectarian" institutions--e.g., Catholic schools. He was taking advantage of a particularly strong current of anti-Catholic feeling among Protestants and "nativists" (those who objected to the hordes of unwashed Catholics showing up on their shores). Well, the amendment failed by only 4 votes, and Blaine wasn't even there to vote on it. But that's not the end of the history lesson.

Since the failure of the "Blaine Amendment," 38 states went on to adopt versions of this legislation in their state constitutions. Adoption of Blaine-syle legislation was, in fact, often a condition of acceptance into the Union for western states. Since controversy surrounding the immigrant problem has faded, so has public memory of the legal veracity of these laws--but they remain on the books. In fact, since they were written using rather general terms (referring to "sectarian" institutions and "religious" purposes, rather than singling out Catholics by name), they are now being interpreted ever more broadly in accordance with the current trend of scouring public schools and spaces of religious references. But the fact is that these laws are unconstitutional--and the Supreme Court knows it.

The legal fallacy these laws fall under is called "religious gerrymandering." Kyle Duncan, in a paper written for Columbia Law School in 2003 (http://law.bepress.com/cgi/viewcontent.cgi?article=1044&context=expresso) points out that, while it is allowable that government might make a law for the general public good that incidentally infringes on the religious practices of some, it amounts to legalized persecution to allow public goods and services to be allotted to the general public while excluding groups that have expressly religious purposes, simply because they are religious. For instance, just because the Federal Government prohibits polygamy does not mean that they are trying to persecute Mormons. The law applies to everybody equally. However, when the State of Washington says that a blind man can't use his state-allotted funds to study to become a minister--simply because, as a minister, he believes the religion--disqualifies him, under the Washington State Constitution, to receive the funds (Witters v. Comm'n for the Blind). Witters was singled out, just because he was religious.

"But wait a minute," you say. "Isn't that just separation of Church and State? I don't see the problem here."

The problem is that the law excludes religious purposes and institutions specifically and exclusively. Said another way: the law treats all citizens equally under the law except where it excludes a certain group precisely because they are religious. Let's say 10 blind people apply to the state for funding for higher education to pursue another career. The state looks over their declared majors: Biology, Computer Science, Music, Teaching, Theology, Master of Divinity, Comparative Religion, Basket-weaving, Forestry, and Criminal Justice. "Hm..." says the state official. "These all look OK except Theology and Master of Divinity. Now, Master of Divinity is right out, since that is a career path leading to the ministry, and we have a law on the books that says nobody can use our money who actually believes in their religion. What about the Theology major? Let's call him up and ask if he actually believes in any specific religion, or if he simply wants to study religion in the abstract, like the Comparative Religion major. If he doesn't believe, it's OK. If he does, then that counts as furthering a religious or sectarian institution and he can't have the funds." Now, if you can come up with a clearer-cut case of discrimination, I'll brew the coffee.

Here's another example. A religious group, wishing to practice a religious rite involving animal sacrifice, finds themselves the object of hasty animal-rights legislation that penalizes their religious activity while allowing the general industry of meatpacking to go on. It's OK for everybody else, except the religious group--because they want to do it as part of their religious practices. Now, if you were to flip these situations on their backsides, and say that it's OK for Mormons to have polygamy, or African cults to sacrifice animals, or blind divinity students to receive public funds, but no one else--these would all be violations of the Establishment Clause. The law can't single out religious groups for certain favors not extended to everyone else, but neither can they withhold resources that are commonly available simply because the applicant is religious or intends to use his share of the resources for religious uses.

On the contrary, the First Amendment Free Speech and Non-Establishment clauses tend to uphold the equal rights of all citizens to have access to benefits generally available to everyone, without regard to their religious affiliation. Hence, the state can't deny welfare benefits to Muslims because they're religious. Schools can't let any kind of club under the sun use their facilities while prohibiting religious clubs from enjoying the same privilege. The Supreme Court has actually developed quite a clean record of respecting people's religious freedoms, when they get the chance. However, at the State level, violations abound as many State Blaine-style laws go far beyond the FS/NE Clauses, as the Witters cases demonstrate.

So now you have the background, I can plainly name the elephant in the room. Thanks to Mr. Blaine and a century of legislative fox-trotting, public money is being kept out of the hands of people who actually want to exercise their religion freely. Catholic parents who want to send their children to Catholic schools are effectively taxed twice when they are denied the option to use whatever portion of public resources is theirs to educate their children in a way that is in line with their religion. Instead, they have to fork out ever-increasing tuition fees on top of their taxes in order to educate their children as conscience dictates. They are singled out in a silent way, since the money is taken out in taxes and no justification is ever advanced as to why they cannot participate equally in the educational benefits doled out by the state.

How do Catholics deal with this? Sadly, many Catholics have few options but to send their kids to public schools. Some can pay for private education if mom works. Some can't even do that. The home-schooling movement appears to be flourishing--for now--but isn't a viable option for everybody. The net result of the current system, I believe, tends to reinforce religious indifference for the Catholic. Catholic parents I've spoken to seem to put an unofficial "cap" on their family size when they get to the point where anxiety sets in about how they're going to pay for a proper Catholic education. The problem is that, while wanting to be good Catholics who educate their children in accord with Church teaching, they end up in a contraceptive mentality that dictates family size in accordance with perceived future costs--which is not Catholic teaching at all.