New Research Shows Most State Bans on 'Sectarian' Aid are Unconstitutional
In Trinity Lutheran Church of Columbia, Inc. v. Comer, decided in June 2017, the U.S. Supreme Court struck down a Missouri state policy of restricting religious institutions from participating in grant programs.
The policy arose from the state government’s efforts to comply with the Missouri constitution’s prohibition on use of public funds to benefit “any church, sect or denomination of religion.”
Many states have prohibitions even broader than the one in the Missouri constitution. Most state constitutions adopted during the 19th century, unlike that currently prevailing in Missouri, identified their proscribed recipients and purposes as sectarian. This was true of Missouri’s superseded 1875 charter, and it is also true of charters under which many states still operate.
In some cases, prohibitions against aid to sectarian organizations or for sectarian purposes were not in the state’s original constitution but were added by amendment during the 19th century. Many of these changes were minor alterations in wording, suggesting no major substantive changes were contemplated. In other cases, 20th century constitution writers copied such prohibitions from their states’ earlier charters.
Arguments Over Constitutionality
Commentators have long argued prohibitions against aid to sectarian groups are void under the First and Fourteenth Amendments to the U.S. Constitution. Their arguments traditionally have taken one of two forms.
First, they argue, assuming that sectarian means merely “religious,” then a ban on aid to sectarian recipients unconstitutionally discriminates against religion in favor of non-religion. Of course, this argument is not persuasive with “strict separationist” jurists, who believe it is fully consistent with—and may be required by—the First Amendment Religion Clauses for a state to put space between its official functions and religion, so long as all religious are treated equally.
Secondly, they say, sectarian is principally a 19th century code word for “Catholic,” so the intent behind such provisions was to discriminate among religions, which almost everyone agrees is prohibited by the Religion Clauses.
In support of the latter contention, opponents typically connect these provisions to James G. Blaine’s 1875 effort to harness anti-Catholic sentiment to his presidential ambitions by sponsoring a federal amendment barring state aid to schools controlled by any “sect” or “denomination.” Although that proposal failed, the argument goes, Blaine remained so powerful that federal territories seeking statehood felt compelled to insert anti-sectarian language in their proposed state constitutions in order to win congressional approval.
In commemoration of the putative link between state constitutions and Blaine’s proposal, anti-sectarian clauses are frequently called “Blaine amendments” or “Blaine provisions.”
However, there are some weaknesses in arguments blaming anti-Catholic sentiment or James G. Blaine for anti-sectarian provisions in state constitutions. First, the historical record does not support a link in every state between anti-Catholic animus and the state constitutional language. Second, several state anti-sectarian clauses antedate Blaine’s proposed constitutional amendment. Third, Blaine himself was far from anti-Catholic.
Indeed, Blaine’s amendment, although it exploited anti-Catholic animus for political support, would not have placed Catholic church schools in a position any worse than schools sponsored by other religious denominations.
When understood in its 19th century context, the addition of the word sectarian creates effects more discriminatory and sinister than anything Blaine proposed.
True Meaning of ‘Sectarian’
Although the texts of 19th century constitutions do not define the word sectarian, their language and structure show that it was not merely a synonym for religious. Some 19th century constitutions used the term sectarian to modify “religion,” a modification that would have been unnecessary if they meant the same thing.
I consulted 19th century dictionaries to learn how drafters and ratifiers of these constitutional provisions used sectarian and certain related words. I then examined contemporaneous newspapers to verify whether the dictionaries were accurately reflecting common usage.
First, there is no evidence whatsoever that sectarian merely meant “religious.” An editorial, for example, could criticize “sectarian” influence while also mocking a proposal for dismissing religion from public life.
Second, sectarian had very negative associations. Newspapers frequently paired sectarian with other disparaging words: “sectarian bigotry,” “sectarian bigot,” “sectarian dogma,” and so forth.
Third, clinging to an unpopular religion in a way incomprehensible to the majority rendered a person sectarian. A Washington, DC paper assailed “men, otherwise respectable for understanding and deportment, [who] are so warped by sectarian or party spirit as not to acknowledge truths as plain as axioms.”
Fourth, in contemporaneous discourse most Christians were not considered sectarian.
Fifth, authors often contrasted sectarianism unfavorably with “good” Christianity.
Sixth, sectarian was not a mere synonym for denominational.
Implications for Constitutionality
My survey of dictionary and newspaper evidence shows that, during the 19th century, sectarian was a word used to tar and marginalize unpopular religious groups. Bans on aid to “sectarian” institutions were designed to target religious groups of which the dominant culture disapproved, not all religions.
State constitutional provisions adopted during the 19th century prohibiting aid to sectarian groups required the state to discriminate only against religions that majority opinion deemed prejudiced, bigoted, or extreme. In some states, the most natural targets were Roman Catholics, but these provisions authorized discrimination against other unpopular religions as well.
Because constitutional provisions are construed according to the understanding of their ratifiers, those provisions mean what they meant in the 19th century. Their meaning is not changed or “purged,” as some have argued, by easing of anti-Catholic animus or other intervening events.
Robert Natelson is a senior fellow in constitutional jurisprudence at the Independence Institute and a Heartland Institute policy advisor. An earlier version of this article was published by The Federalist Society. Reprinted with permission.
Robert G. Natelson, “Why 19th Century Bans on ‘Sectarian’ Aid Are Facially Unconstitutional: New Evidence on Plain Meaning,” Federalist Society Review, January 8, 2018: https://fedsoc.org/commentary/publications/why-nineteenth-century-bans-on-sectarian-aid-are-facially-unconstitutional-new-evidence-on-plain-meaning