Over at First Things, Philip Hamburger relates the history of the Blaine Amendments, which prohibit government funding of “sectarian” institutions. My home state, Missouri, has one such amendment, the constitutionality of which is being decided by the U. S. Supreme Court even now. (See Becket Law’s page on the case, Trinity Lutheran Church v. Comer.) Scratch the surface of these amendments, however, and you find anti-Catholic and anti-ecclesial prejudices at work, historically at any rate:

Many judges have done their best to sanitize the Blaine Amendments. Rather than face up to the reality of prejudice and discrimination, they have suggested that the amendments are innocuous. Where the amendments bar funds for any “sectarian” institution, the judges have interpreted them to preclude funds for “religious” institutions. And having homogenized all of the amendments to express a general anti-ecclesiastical discrimination, the judges have understood this result to be areligious or “secular” and thus without prejudice or discrimination.

But even the amendments that generally bar funding for religious institutions are inescapably stuck in the mire of theological prejudice. The old animosity against the Catholic Church never entirely went away, but rather was generalized. Although hostility against the Catholic Church softened, it remained distinctively strong, and it served as the prototypical example of what was rejected in all churches. Thus, what changed when states adopted broad Blaine Amendments, and when judges interpreted “sectarian” to mean “religious,” was merely that another layer of prejudice was added—the core animosity toward the Catholic Church becoming the model for a more expansive hostility toward all churches.

At best, this is new prejudice in old bottles; in fact, the dregs of the old prejudice remain, topped off by the new.

Judges tend to miss all of this because they see religious divisions in terms of denominational differences, such as Anglican versus Baptist or, at most, Protestant versus Catholic. But what matters for the Blaine Amendments is another sort of religious difference: that introduced by theological liberalism.

European religion was traditionally fraught with divisions among different churches, each defined by its own distinctive doctrine. But the most profound division in American religion since the Founding has been the division between the theologically liberal and those who are theologically more orthodox. Theological liberalism has split one church after another—to the point that the theologically liberal in different churches often have more in common with each other than with the more orthodox in their own churches. Indeed, the theologically liberal attack on ecclesiastical authority has become the preeminent fact of American religious life, and as theological liberals became numerous enough to enjoy political power, they used Blaine Amendments to restrict not merely the Catholic Church, but other ecclesiastical institutions.

Rather than excuse the Blaine Amendments as expressions of areligious concerns, judges need to recognize that these amendments are products of theological animus. Nativists and other theological liberals allowed their fear of ecclesiastical institutions to lead them into theological warfare against the Catholic Church and sometimes against all ecclesiastical bodies, and the legal results are ugly. Far from merely discriminating between what is religious and what is not, the Blaine Amendments discriminate against Catholic and other ecclesiastical authority and thereby carry out theologically liberal animosities.

To be sure, states in many instances can reasonably choose not to fund churches. But when the Blaine Amendments narrowly single out “sectarian” institutions, or when, as in Missouri, they categorically exclude all ecclesiastically-affiliated institutions, they reveal theologically-driven discrimination.

Read the whole thing!