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The Case Against Separating Church and State

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Is the separation of church and state unconstitutional?

You read that right. The U.S. Supreme Court said Friday that it would consider whether Missouri’s constitution, which bars state aid to religious groups, violates the U.S. Constitution by discriminating against religion.

This claim sounds crazy, and to those who wrote the Missouri constitutional provision in the 1870s, it would’ve been. But the claim, in fact, isn’t utterly absurd -- if you consider the historical circumstances in which the provision was drafted. And although it’s a long shot to change existing church-state law, the case has the potential to be a landmark.

Start with the very simple facts: Trinity Lutheran Church of Columbia, Missouri, applied for state funds to improve its playground. Under the U.S. Constitution as interpreted by the Supreme Court, a church may get generally available funds from the government. But under Missouri’s constitution, the church isn’t eligible for the funds, so it can’t get the money.

The relevant state provision -- Article 1, Section 7 -- says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion … and that no preference shall be given to nor any discrimination made against any church, sect, or creed.”

As written, this provision is framed more strongly than the Establishment Clause of the federal constitution, which never mentions money but says Congress may not enact an establishment of religion.

In a 2004 case, Locke v. Davey, the U.S. Supreme Court said that it was permissible for Washington state’s constitution to bar state funding of religion to a greater extent than the Establishment Clause requires. Under that precedent, Trinity Lutheran would seem to have no case. Missouri can do what Washington does: Protect the separation of church and state without violating the religious liberty of religious funding applicants.

Here’s where things get complicated. The Missouri provision was adopted in 1875, in the wake of a national effort to pass a federal constitutional amendment that would have similarly enacted a ban on state funding of religious institutions. That effort was spearheaded by Maine Republican presidential candidate James G. Blaine, and the national amendment was nicknamed for him.

The Blaine Amendment was deeply politicized. At the time, it was understood by everyone to be targeted at Catholic institutions. The word “sectarian” was code for Catholic.

Republicans hoped to force Democrats into the tough political position of either supporting the amendment and alienating Catholic voters, or opposing it and letting themselves be criticized for opposing the separation of church and state. Republicans had gotten the idea from Ohio, where a brutal denominational fight over state funding of Catholic institutions had helped elect Governor Rutherford B. Hayes.

In congressional debates, concern for the separation of church and state was interspersed with blatant anti-Catholicism from Republicans. The federal amendment failed, but it arguably helped the Republicans reach a tie in the general election, which then led to the political deal that made Hayes president.

But numerous versions of the Blaine Amendment, or “baby Blaines,” passed in other states. Missouri’s provision is typical of them. In historic terms, the amendments played a meaningful role in strengthening the separation of church and state as an American ideal. They had little immediate effect in practice, since states already weren’t funding Catholic institutions.

Historians of church-state relations, myself included, have pointed out the anti-Catholic origins of the state Blaine amendments. The crucial question for the U.S. Supreme Court is whether this aspect of the history should be used to render the state amendments inoperative as violations of free religious exercise of the equal protection of the law.

In Locke v. Davey, the court ducked the issue, saying it hadn’t been shown that Washington state’s constitutional provision, enacted more than 25 years after Missouri’s, was a state Blaine.

The court could conceivably duck the issue again. Trinity Lutheran will argue that its case isn’t covered by the Locke precedent because its playground-resurfacing project is different from the money at issue in that case, which prevented students from using scholarship money to major in theology. The court would then have room to say that where there isn’t a strong connection to religion, states must give funding to religious institutions on equal terms with nonreligious ones. But the distinction with Locke is highly tenuous, since the court said in that case that the scholarship funding wouldn’t have violated the Establishment Clause.

For Trinity Lutheran to win, it probably needs the court to go into the seedy history of the Blaine Amendment and say that state Blaine amendments violate federal equal protection laws because of the bias inherent in their adoption. Their best precedent is Romer v. Evans, a 1996 case in which the court struck down a Colorado state constitutional amendment that was inspired by anti-gay animus.

In my view, that outcome would be defensible but probably wrong. The Blaine history is certainly replete with nasty anti-Catholic bias reminiscent of today’s Islamophobia. But the animus was at all times intertwined with a legitimate constitutional aim -- namely, separation of church and state. And strong separation remains a plausible constitutional vision, even though the court no longer embraces it -- for example, by allowing state funding of religious schools through vouchers.

Regardless of outcome, the case will be one for the history books.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net