A Political History of the Establishment Clause

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were “pervasively sectarian.” That label, said Thomas, had a “shameful pedigree.” He traced it to the Blaine Amendment, proposed in 1875, which would have altered the Constitution to ban aid to sectarian institutions. At the time, “it was an open secret that ‘sectarian’ was code for ‘Catholic.'” Of course, said Thomas, the word could describe schools of other religions, but the Court “eliminated this possibility of confusion” by coining the phrase “pervasively sectarian” – a term applicable almost exelusively to Catholic parochial schools. The exclusion of “pervasively sectarian” schools from otherwise permissible aid to education was, Thomas concluded, not a neutral interpretation of constitutional command but a doctrine “born of bigotry.” Justice Thomas did not attack the ban against aid to “pervasively sectarian” schools merely as a misunderstanding of text or original intent. He charged, rather, that the hostility to “pervasively sectarian” institutions reflected political conflict and popular prejudice. This is not the usual stuff of Supreme Court debate. Perhaps for that reason, Justice Souter’s dissent did not so much answer the accusation as make fun of it, noting only that some “pervasively sectarian” schools are not Catholic and that some Catholics oppose school aid. Nevertheless, Thomas’s account is at least partly true. The constitutional disfavor of “pervasively sectarian” institutions is indeed a doctrine born, if not of bigotry, at least of a highly partisan understanding of laws “respecting an establishment of religion.” The first and narrowest ambition of this Article is to document that assertion.