Friday, July 10, 2015

The Know-Nothing Boomerang: Blaine Amendment Denuding of PublicMonuments

The Oklahoma Supreme Court recently ordered the removal of a monument from the State Capitol grounds. In current circumstances, you wouldn't be faulted for suspecting the monument was one dedicated to some Confederate general, or bearing an etched image of a Confederate flag. No, you wouldn't be faulted, but you would be wrong. The monument contains a version of the Ten Commandments.

The Ten Commandments Monument at issue is a replica of one on display on the Texas State Capitol grounds. The US Supreme Court previously considered, and rejected, a challenge to the display of that monument in Texas.* Before the Oklahoma Supreme Court issued its decision, the complaining attorneys had asked for a similar order from a federal trial court but were denied.

State Representative Mike Ritke, a doctor, donated $10,000.00 and raised an additional $10,000.0 to set up the Oklahoma State Capital Grounds version of the monument. He also proposed the legislation allowing the display of the monument after his donation of it to the State. The monument went on display in 2012.

The Oklahoma Monument has garnered some notoriety since being erected.

In late October 2014, a man with some history of mental illness urinated on the Monument, and then drove into it with his car, knocking it off its pedestal and breaking it in pieces. Michael Reed identified himself as a Satanist, and told police he was ordered by Satan to urinate on, and crash into, the Monument.

Following the placement of the Ten Commandments Monument on the State Capitol Grounds, representatives of other religious groups -- Satanists and Hindus -- have expressed interest in having religious monuments placed on the State Capitol Grounds too. A New York based Church of Satan stated that it would like to have a statue of "Baphomet" placed on the grounds. A recently formed group, the Universal Society of Hinduism, requested placement of a statue honoring Lord Hanuman, a Hindu deity.

Now, the Oklahoma Supreme Court, in a separate case from the federal one that rejected a request for an Order barring the Monument, has issued a very brief decision finding that the Monument violates the "Blaine Amendment" in Oklahoma's State Constitution. On the basis of that finding, the Oklahoma Supreme Court ordered that the Monument be removed.

Reacting, the Governor and the Commission responsible for the placement of artworks on the Capitol Grounds filed a request for reconsideration with the Supreme Court. While that request is pending, the Governor, Mary Fallin, has issued her own order keeping the Monument in place, pending a decision  by the Court on her request to reconsider its decision.

In addition to possible reconsideration by the Oklahoma Supreme Court of its decision, the Oklahoma legislature is now being asked to consider proposing an amendment to the Oklahoma Constitution the effect of which would be to allow the Monument to remain. If the Oklahoma Supreme Court reconsiders its decision, it will re-examine the effect of a so-called "Blaine Amendment" in the State Constitution. If the legislature decides to propose an amendment to the State Constitution, the amendment would likely target the scope of the State's Blaine Amendment.

Blaine Amendments: Sticking It to Catholics in the 19th Century, Getting Stuck in the 21st

So just what is a "Blaine Amendment"? Why do so many State Constitutions include them? What is their origin and history?

Before such State constitutional amendments gained the moniker, "Blaine Amendment," they were adopted by a dozen or so States. Precisely the reason why States adopted constitutional provisions prohibiting the use of state monies or properties for parochial or sectarian schools is disputed. The Becket Fund for Religious Liberty, a premier nonprofit legal group working to defend religious liberties, points to the reality of the 19th Century in the United States, namely, that bias against immigrants, typically Catholic, in a largely Protestant nation, and in particular the efforts of the "Know Nothing" Party, led to efforts to stymie funding of sectarian schools. Marvin Olasky, writing in World put this view pointedly:
The state constitutional roadblocks that educational choice now faces grew out of anti-Catholic bigotry, anti-Southern politics, and the myth of educational neutrality.
The progressive group, Americans United For Separation of Church and State (formerly Protestants and Other Americans United for Separation of Church and State), suggests that the claim that Blaine Amendments and similar State constitutional provisions were products of anti-Catholic bigotry misstates the history of the times and the constitutional amendments.

[Our history belongs to each of us, to read, to research and to discover. Although I share the view of the Becket Fund regarding the origins of these amendments, you can (and should) read, research and decide for yourself. ]

Still, today, "Blaine Amendments" bear the name of former Congressman, Speaker of the House Senator, and Secretary of State, James Blaine of Maine. As President, Ulysses S. grant made an impassioned plea for a constitutional amendment barring the States and the federal government from using any monies for the support of sectarian schools. Grant's speech was made in Iowa, at a reunion of the Army of the Tennessee. His speech concluded with this stirring appeal to nativistic bigotry:
If we are to have another contest in the near future of our national existence, predict that the dividing line will not be Mason and Dixon's, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other. Now, in this centennial year of our national existence, believe it is good time to begin the work of strengthening the foundation of the house commenced by our patriotic forefathers one hundred years ago at Concord and Lexington. 
Let us all labor to add all needful guarantees for the more perfect security of free thought, free speech, and free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion. Encourage free schools, and resolve that not one dollar of money appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that neither the State or nation, nor both combined, shall support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of good common school education, unmixed with sectarian, pagan, or atheistical tenets. Leave the matter of religion to the family altar, the church, and private school, supported entirely by private contribution. Keep the church and state forever separate.
It is at this point that it would be helpful to understand the political background of U.S. Grant.

Religious differences among the People of our Nation have, from time to time, erupted in brutal ugly moments, even injuries, and deaths. Key incidents of religious conflicts relate to the immigration, settlement, and assertion of rights to equality by Catholics from Ireland, and by Germans. These incidents have come to be known as the "Philadelphia Bible Riots" and the "Cincinnati Bible War." In particular, the Philadelphia Bible Riots reflected the rapid rise to prominence of a political faction sometimes referred to as "Know-Nothings" but that organized politically as the American Party.

The American Party, when it was initially formed, called itself the Native American Party. The party renamed itself in time for the 1856 presidential election, the only presidential election for which it had a sufficient base to conduct a nominating convention. Their nominee, Millard Fillmore, finished third in the general election. The poster shown here gives you some idea of the reason members of the party called themselves "Know Nothings," with its motto, "I know nothing but my Country, my whole Country, and nothing but my country." The American Party, or Know Nothings, were nativistic. They dreaded the influx of Catholic Irish and Germans.

In various States they pursued agendas to limit availability of alcohol, to prohibit Catholics from becoming teachers in the common schools, to reduce immigration from "undesirable" countries. Among members of the American Party, Ulysses Simpson Grant, later Lincoln's favorite Union general and subsequently President, was probably the most well known.

Know Nothings not only feared the influence of the growing population of Catholics in the United States. They not only sought to prevent the influence of Catholics over impressionable youths by disqualifying them as teachers. They also made it a centerpiece of their efforts to preserve Protestant America by denying any use of tax funds or properties by the States through the adoption of State constitutional provisions barring funding of sectarian schools or instruction.

After the 1856 election, the party passed into ignominy. Members filtered out, some joining the Whig component of the newly formed Republican Party while others, sympathetic with the sovereignty claims of the slave-holding States, joined the Democratic Party. Ulysses S. Grant was among those Know Nothings that joined the Republican Party. Years later, Grant not only concluded the Civil War at Appomattox Courthouse, but rose to the Presidency. His beloved status among his former troops brought him to the moment when he made that speech to the Army of the Tennessee at its Iowa reunion.

Seemingly in response to Grant's call for an amendment, Speaker Blaine proposed, nearly successfully, an amendment to the US Constitution. That amendment would have required States to provide a free public education to their citizens, and would have barred the States from using public monies for parochial schooling. The Amendment stated:
No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.
The House of Representatives passed Blaine's Amendment by a stunningly overwhelming margin. The Senate, however, fell four votes short of passage. But the defeat of the Blaine Amendment was, in fact, a Pyrrhic Victory for those who fought to prevent a Nationwide prohibition on using public monies for parochial schooling.

With the defeat of the amendment, Blaine and those that supported his proposal in Congress turned from that effort with great and lasting effect to enshrining "little Blaine Amendments" in the Constitutions of States admitted to the Union thereafter. As a consequence of that effort, more than thirty States of the Union have such amendments. The Institute for Justice, for example, estimates that thirty-seven States have Blaine, or Blaine-like, amendments in their State constitutions:

This Map from the Institute for Justice show just how widespread Blaine Amendments Are in The USA

But If A Blaine Amendment Limits Use of Funds and Property for Parochial Schools ... How Does a Ten Commandments Monument Violate It?

Yes, indeed, that is a good question.

At the start, we were discussing a Ten Commandments Monument on Oklahoma's State Capitol Grounds, not a Catholic grade school, or a program of scholarships for a Baptist seminary. So how is it that a State constitutional amendment designed to prevent the use of State monies and property for religious schools ends up being the basis for tearing down a Monument associated with no particular religious affiliation?

Here's the language of Oklahoma's Blaine Amendment:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
The intent and purpose of prohibiting the funding or support of parochial schools is undeniable. The candid observer must admit, as well, that the restriction is not strictly limited by its words to schooling questions. The language, given its natural meaning, would bar a decision by Oklahoma to give land it owns for the building of a church, a religiously affiliated school, a pastor's manse, or other religious enterprise.

Still, the Ten Commandments Monument on the Oklahoma State Capitol Grounds does not fit the bill on these obvious prohibitions.

Representative Ritke donated or raised from donations all funds for the building and maintenance of the Monument. So, obviously, there is no basis in the facts for the Oklahoma Supreme Court to have found a violation of the Amendment's "appropriated, applied, donated, or used" language.

Consequently, and as the opinion makes clear, the "offense" against the Amendment must result from the Court's determination that the display of the Monument results in "the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such." In fact, the Court's entire opinion on this point states as follows:
As concerns the "historic purpose" justification, the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.
Because the monument at issue operates for the use, benefit or support of a sect or system of religion, it violates Article 2, Section 5 of the Oklahoma Constitution and is enjoined and shall be removed.
That's it. That is all the explanation offered. No subtle explications of the constitutional text are offered. It is just and only that "the Ten Commandments are obviously religious in nature" and that they are "an integral part of the Jewish and Christian faiths." But that isn't the language of the amendment. Rather, the Amendment bars such "use" of "public ... property" for the "use, benefit, or support" or "any sect, church, denomination, or system of religion," or "any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such." But the Monument accomplishes those prohibited goals, if it does so at all, in precisely the same way that the Capitol Building itself does. The Monument is nothing more than a passive display. It lends nothing in support to anything.

The Court's construction of the Amendment is severely strained, does not reflect the language of the Amendment, and is contrary to its purpose. The Court had the guidance of a "friend of the Court" regarding the inapplicability of the Blaine Amendment to the passive display of the Monument. The Court -- without discussion of that seemingly important distinction -- gave no apparent consideration to it.

The irony of the Oklahoma Supreme Court's application of Oklahoma's Blaine Amendment cannot be blinked. An amendment steeped in anti-Catholic biases of another century, now distant to us, is twisted by the Court to obtain a result that would shock Know Nothings, and which disappoints many in the evangelical community.


* The Texas Ten Commandment monument case was Van Orden v. Perry. Then-Chief Justice Rehnquist announced the Court's judgment (allowing the display) and offered an opinion for himself and Justices Scalia, Kennedy and Thomas. Justice Stephen Breyer agreed with the outcome but did not agree with the legal analysis offered by Rehnquist. Four justices dissented from the holding in Van Orden