Monday, June 26, 2017
Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.
For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature.
But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.