Posted on by Marc O. DeGirolami · 1 Comment

“Blaine Amendment” Case Decided, Without Reference to Blaine Amendments or Animus Inquiry

Trinity Lutheran Church has just come down, and Tom Berg has a nice summary and set of good comments on it at Mirror of Justice. 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 that was challenged 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.

Posted on by Liam Ray

Around the Web

Some important law-and-religion stories from around the web:

Posted on by Mark Movsesian

Doux Commerce?

At the Liberty Law site today, I have a review of Nate Oman’s important new book on markets and morals, The Dignity of Commerce. The book is a great contribution to contracts scholarship, thoughtful and beautifully written. Nate and I have a friendly disagreement, though, about the cause-and-effect relationship between markets and morals, so it’s no surprise that I find myself disagreeing with one of the book’s main claims:

Liberals maintain that markets create wealth, promote mutual gain, and unlock talents and resources in individuals and nations. And, they say, markets have political benefits. Since the Enlightenment, liberals have argued that markets promote civic pluralism by making people more reasonable and prudent; less given to political and, especially, religious enthusiasm; and eager to avoid divisive debates about deep commitments.

That markets have these advantages is known as the doux commerce thesis. (That’s doux as in soft, or having a softening effect.) The thesis is most closely associated with the Baron de Montesquieu and Voltaire, though David Hume and Adam Smith endorsed it, too. In a very fine new book, The Dignity of Commerce: Markets and the Moral Foundations of Contract Law, contracts scholar Nathan B. Oman advances a version of the theory, updated to take account of current contract doctrine. Oman, a law professor at William and Mary Law School, combines immense learning and sophistication with a lightness of touch that makes his book a pleasure to read.

All of that said, I remain unpersuaded about doux commerce. Edmund Burke had it right, I think. Markets don’t inevitably lead to liberalism. Rather, the liberal tradition itself creates the sort of markets liberals admire.

You can read my full review here. For more information on Nate’s book, click here.

Posted on by Marc O. DeGirolami

Mullins, “Father of Liberty: Jonathan Mayhew and the Principles of the American Revolution”

Here’s an interesting new book by Marquette scholar J. Patrick Mullins on a figure of the MayhewAmerican founding that was not known to me: Jonathan Mayhew. Typical of the founding period, note the association of the natural rights thinking so foundational to the early Republic and the Congregationalism of that period. The publisher, University of Kansas Press, has the following description.

Dr. Jonathan Mayhew (1720–1766) was, according to John Adams, a “transcendental genius . . . who threw all the weight of his great fame into the scale of the country in 1761, and maintained it there with zeal and ardor till his death.” He was also, J. Patrick Mullins contends, the most politically influential clergyman in eighteenth-century America and the intellectual progenitor of the American Revolution in New England. Father of Liberty is the first book to fully explore Mayhew’s political thought and activism, understood within the context of his personal experiences and intellectual influences, and of the cultural developments and political events of his time. Analyzing and assessing his contributions to eighteenth-century New England political culture, the book demonstrates Mayhew’s critical contribution to the intellectual origins of the American Revolution.

As pastor of the Congregationalist West Church in Boston, Mayhew championed the principles of natural rights, constitutionalism, and resistance to tyranny in press and pulpit from 1750 to 1766. He did more than any other clergyman to prepare New England for disobedience to British authority in the 1760s—and should, Mullins argues, be counted alongside such framers and fomenters of revolutionary thought as James Otis, Patrick Henry, and Samuel Adams. Though many commentators from John Adams on down have acknowledged his importance as a popularizer of Whig political principles, Father of Liberty is the first extended, in-depth examination of Mayhew’s political writings, as well as the cultural process by which he engaged with the public and disseminated those principles. As such, even as the book restores a key figure to his place in American intellectual and political history, it illuminates the meaning of the Revolution as a political and constitutional conflict informed by the religious and political ideas of the British Enlightenment.