U . S . C O M M I S S I O N O N C I V I L R I G H T S School Choice The Blaine Amendments & Anti-Catholicism U.S. COMMISSION ON CIVIL RIGHTS Washington, DC 20425 Visit us on the Web: www.usccr.gov On June 1, 2007, the U.S. Commission on Civil Rights (the “Commission”) conducted a briefing in Washington, D.C. on the status and effect of Blaine Amendments, which are provisions in state constitutions that restrict the use of public funds to support private religious schools. The Commission heard testimony from Anthony R. Picarello, Jr., Vice President and General Counsel of the Becket Fund; K. Hollyn Hollman, General Counsel of the Baptist Joint Committee for Religious Liberty; Ellen Johnson, President of American Atheists; and Richard D. Komer, Senior Litigation Attorney at the Institute for Justice. Following are biographies of the four panelists, prepared statements by the four panelists, a written statement submitted by the Anti-Defamation League, and the transcript of the proceeding. Table of Contents Panelists’ Biographies ......................................................................................................... 2  Panelists’ Statements .......................................................................................................... 5  Anthony R. Picarello, Jr. ................................................................................................. 5  K. Hollyn Hollman ........................................................................................................ 13  Ellen Johnson ................................................................................................................ 23  Richard D. Komer ......................................................................................................... 31  Additional Statements ....................................................................................................... 47  Anti-Defamation League .............................................................................................. 47  Transcript of Briefing ....................................................................................................... 55 Panelists’ Biographies Anthony Picarello Mr. Picarello is vice president and general counsel of the Becket Fund for Religious Liberty. He has worked at the Becket Fund for over six years. He joined the Becket Fund after a three and a half year tour of duty at Covington & Burling in Washington, D.C. While in law school at the University of Virginia, Mr. Picarello served as essays editor of the Virginia Law Review and won the University of Virginia’s Jessup International Law Moot Court Competition. He went on to clerk at the federal district court in Portland, Maine. Before becoming a lawyer, Mr. Picarello earned his A.M. in religious studies from the University of Chicago and his A.B., magna cum laude, in social anthropology and comparative religion from Harvard University. Mr. Picarello’s bar memberships include Virginia, District of Columbia, United States Supreme Court, United States Court of Appeals for the First, Second, Third, Fourth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits, the United States District Courts for the Eastern Distrit of Virginia, the District of Columbia, and the Northern District of Illinois. Hollyn Hollman Ms. Hollman is general counsel of the Baptist Joint Committee for Religious Liberty in Washington, D.C., a religious liberty education and advocacy group formed nearly seven decades ago. As general counsel, Ms. Hollman provides legal analysis on church-state issues that arise before Congress, the courts, and administrative agencies. Her work includes preparing friend-of-the-court submissions, presentations for research institutions and religious organizations, and issue briefings for congressional staff. Ms. Hollman writes a regular column for the Baptist Joint Committee’s monthly publication, Report from the Capital. In addition, she consults with national print media on matters relating to church-state relations and has appeared in leading publications including The Washington Post, USA Today, The Christian Science Monitor, and Christian Century. Ms. Hollman has also appeared on National Public Radio, CNN, C-SPAN, Fox News Channel, NBC Nightly News and PBS “Religion and Ethics Newsweekly.” Prior to her work at the Baptist Joint Committee, Ms. Hollman was an attorney in private practice specializing in employment law and litigation. She practiced in firms in Nashville, Tennessee, and in the District of Columbia. She is a member of the U.S. Supreme Court, District of Columbia and Tennessee bars. Ms. Hollman graduated with a B.A. in politics from Wake Forest University. She received her J.D. from the 2 University of Tennessee College of Law, where she was a member of the Tennessee Law Review and the National Moot Court Team. Ellen Johnson Ms. Johnson is president of American Atheists and has been so for nearly a decade. In 1998, Ms. Johnson met with the Office of Public Liaison for the Clinton White House to discuss the subject of giving Atheists a “place at the table” in the discussion of issues of concern to our nation’s Atheists. Ms. Johnson has also testified before the United States Commission on Civil Rights on the unconstitutional expression of religion in public schools. In 2001 Ms. Johnson met with the Minister of Foreign Affairs at the Pakistan Embassy in Washington, D.C. to discuss the unlawful imprisonment of Dr. Younis Shaikh, a Rationalist, on the charge of blasphemy. He has now been released from prison. That same year, Ms. Johnson was made an Honorary Associate of the Rationalist International. She also serves as an Honorary Board Member of “Scouting For All,” a nationwide group that seeks to end discrimination against Atheists and gays within the Boy Scouts of America. Ms. Johnson has co-hosted the cable television program, “The Atheist Viewpoint,” since 1994. It now airs on over 45 cable systems throughout the United States. She is also a frequent guest on national radio and television shows, including the Fox Network’s “Hannity & Colmes,” “Heartland” with John Kasich, “The O’Reilly Factor,” MSNBC’s “Scarborough Country,” “The Larry King Show,” a Barbara Walters special, CNN’s “Paula Zahn Now,” and C-SPAN’s public affairs program, “Washington Journal.” Ms. Johnson was chairperson of the Godless Americans March on Washington Task Force which on November 2, 2002 brought together thousands of Atheists, Freethinkers, Secular Humanists and other nonbelievers for an unprecedented display of unity in our nation’s capital. Ms. Johnson also serves as executive director of the Godless Americans Political Action Committee, a nationwide initiative to support and elect Atheists to public office. Richard Komer Mr. Komer serves as senior litigation attorney at the Institute for Justice. He litigates school choice cases in both federal and state courts. Several of his current cases involve the constitutionality of allowing school choice programs to include religious schools among the private schools that can participate. Prior to his work at the Institute, Mr. Komer worked as a civil rights lawyer for the federal government, working at the Department of Education and Justice, as well as the Equal Employment Opportunity Commission as a special assistant to the Chairman, 3 Clarence Thomas. His most recent government employment was as Deputy Assistant Secretary for Civil Rights at the Department of Education. Mr. Komer received his law degree from the University of Virginia in 1978 and his B.A. from Harvard College in 1974. 4 Panelists’ Statements Anthony R. Picarello, Jr. Vice President & General Counsel The Becket Fund for Religious Liberty Good morning. My name is Anthony Picarello, and I am Vice President and General Counsel for the Becket Fund for Religious Liberty. Thank you for the opportunity to come before you today to discuss the history of Blaine Amendments, and particularly their connection to anti-Catholicism. This issue has been a special concern of the Becket Fund for many years. The Becket Fund is a nonpartisan, interfaith, public-interest law firm dedicated to protecting the free expression of all religious traditions. That mission includes opposition to government discrimination based on religion, including the government’s exclusion of religious people or groups from public life or public benefits. The Becket Fund litigates in support of these principles in state and federal courts throughout the United States, as both primary counsel and amicus curiae. Accordingly, the Becket Fund has been actively involved in litigation challenging “Blaine Amendments” as violations of the First and Fourteenth Amendments to the United States Constitution. As you know, Blaine Amendments are state constitutional amendments that were passed in the latter half of the 19th Century out of the nativist sentiment then prevalent in the United States. They expressed and implemented that sentiment by excluding from government funding schools that taught “sectarian” faiths (mainly Catholicism), while allowing those funds to the “common schools,” which taught the “common” or “nonsectarian” faith (i.e., non-denominational Protestantism). The first of these amendments were passed in New York and Massachusetts, corresponding to waves of Catholic immigration, but they gradually spread through the Midwest. In 1875, James G. Blaine, a Congressman and presidential candidate came to be associated with these amendments by proposing one at the federal level. Although Blaine’s amendment narrowly failed, it triggered a broader movement to add similar amendments to state constitutions that did not already have them, especially among the western states then in the process of being admitted into the Union. The last Blaine Amendment was added in the early 20th Century, leaving the current total at approximately thirty-five. In short, Blaine Amendments were not designed to implement benign concerns for the separation of church and state traceable to the founding, but instead to target for special disadvantage the faiths of immigrants, especially Catholicism. For years, The Becket Fund has worked to correct the historical revisionism that would erase this shameful chapter in our nation’s history in order to protect state Blaine Amendments for use as the last constitutional weapon available to attack democratically enacted, religion-neutral school voucher programs, or social service programs that 5 contract with faith-based providers. We have filed three amicus briefs before the U.S. Supreme Court to document in detail the history of the federal and state Blaine Amendments.1 We pursue lower court litigation on behalf of students and their parents who have suffered exclusion from educational benefits based on religion because of Blaine Amendments.2 And we maintain a website dedicated exclusively to the history and current effects of Blaine Amendments (www.blaineamendments.org). I realize that I only have a short time for my prepared remarks, so I feel constrained to paint in relatively broad strokes, with the hope of addressing the details in the course of our discussion later. So I’ll limit myself to three broader points. First, I want to identify the watermark of a true Blaine Amendment, which is use of the term “sectarian” to identify those who should be excluded from government aid. Second, I want to describe briefly how a majority of Justices currently sitting on the Supreme Court have already acknowledged the historical connection between the Blaine Amendments and anti-Catholicism. Third, I’d like to highlight some of the growing body of historical scholarship that has focused on and traced out in detail those same connections. I. One of the surest ways to spot a Blaine Amendment in a state constitution is to look for use of the term “sectarian” to describe the kind of entity (such as a “school,” “society,” or “institution”) that bears special legal disadvantage in the form of exclusion from government aid. The term “sectarian” is not synonymous with “religious” but instead refers to a narrower subcategory, connoting one or more “sects” or “denominations” of religion. For example, “nonsectarian prayer” is unmistakably religious but is not tied to 1 See Brief of Amici Curiae the Becket Fund for Religious Liberty, et al., in Support of Respondent in Locke v. Davey, 540 U.S. 712 (2004) (filed Sept. 8, 2003) (available at www.becketfund.org/litigate/LockeAmicus.pdf); Brief of the Becket Fund for Religious Liberty as Amicus Curiae in Support of Petitioners in Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (filed Nov. 9, 2001) (available at www.becketfund.org/litigate/ZelmanAmicus.pdf); Brief of the Becket Fund for Religious Liberty as Amicus Curiae in Support of Petitioners in Mitchell v. Helms, 530 U.S. 793 (2000) (filed Aug. 19, 1999) (available at www.becketfund.org/litigate/MitchellAmicus.pdf). 2 For the Becket Fund’s own Blaine Amendment cases in the lower courts, see Pucket v. Rounds, No. 03-CV-5033 (D.S.D. filed Apr. 23, 2003); Boyette v. Galvin, 311 F. Supp. 2d 237 (D. Mass. 2004), aff’d, 412 F.3d 271 (1st Cir. 2005), cert. denied, 126 S. Ct. 1165 (2006). For Blaine Amendment cases where the Becket Fund has filed amicus briefs, see Brief Amicus Curiae of the Becket Fund for Religious Liberty Supporting Defendants-Appellees and Reversal in Barnes-Wallace v. Boy Scouts of America, 471 F.3d 1038 (9th Cir. 2006) (filed Feb. 24, 2005) (available at www.becketfund.org/files/63241.pdf); Brief Amicus Curiae of the Becket Fund for Religious Liberty in Support of Appellants and of Reversal in Bush v. Holmes, 919 So. 2d 392 (Fla. 2006) (filed Jan. 24, 2005) (available at www.becketfund.org/pdfs/338_44.pdf); Brief Amicus Curiae of the Becket Fund for Religious Liberty in Support of Reversal in Gallwey v. Grimm, 48 P.2d 274 (Wash. 2002) (filed Apr. 12, 2001) (available at www.becketfund.org/litigate/GallweyAmicus.pdf). 6 any one religious sect.3 The term “sectarian,” moreover, usually bears a pejorative meaning. Webster’s 4Dictionary defines “sectarian” to mean “of or relating to a sect or sects, narrow-minded and ready to quarrel over petty differences of opinion.” Along the same lines, the linguist William Safire recently noted that “[s]ectarian is a word long associated with religion that has a nastier connotation than its synonym denominational.”5 Thus, standing alone, the bare term “sectarian” in a state constitution both draws a religion-based distinction between those who receive and do not receive government aid, and indicates a government purpose to deny government aid to some disfavored subset of all religious persons or groups.6 Although the distinction between “sectarian” and “religious” may occasionally be blurred in common usage today, it was not when the Blaine Amendments first became law. Indeed, their historical context makes clear that their use of the term “sectarian” was not an oversight or a matter of mere semantics, but instead a common legal device to target for special disadvantage those who resisted the “common religion” then taught in the “common schools.” In other words, the meaning of “sectarian” can best be understood by reference to the “nonsectarian” religion to which it was opposed at the time. Specifically, the term “sectarian” both expressed and implemented hostility to the faiths of those immigrants (especially, but not only, Catholics) who resisted assimilation to the “nonsectarian” Protestantism then taught as the “common faith” in the “common schools.” Denying aid only to “sectarian” schools allowed the government to continue funding the teaching of the government’s preferred “nonsectarian” faith through the public schools, while penalizing financially those who resisted that faith. In other words, state constitutional provisions that de-funded “sectarian” groups were not designed to implement benign concerns for the separation of church and state traceable to the founding, but instead to target for special disadvantage the faiths of the religious minorities of the late 19th Century – especially the religions of immigrants, and especially Catholicism. II. This basic history of the meaning of “sectarian” as a legal term has been confirmed in opinions of the U.S. Supreme Court written or joined by six current Justices.7 In Mitchell 3See, e.g., Lee v. Weisman, 505 U.S. 577, 581-82, 588-89 (1992). 4 WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE, THE NEW LEXICON (Encyclopedic Ed., Lexicon Pub. 1989). 5“Is It Sectarian Violence, Communal Fighting or Civil War?” New York Times (Apr. 9, 2006). 6See Peter v. Wedl, 155 F.3d 992, 996 (8th Cir. 1998) (“‘A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.’”) (quoting Romer, 517 U.S. at 633). See also Romer, 517 U.S. at 634 (“a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”). 7 The two opinions at issue encompass the votes of seven Justices, but Chief Justice Rehnquist has since passed away. I would expect both Chief Justice Roberts and Justice Alito to join this number in due course. 7 v. Helms, 530 U.S. 793 (2000), a plurality of four Justices acknowledged and condemned the religious bigotry that gave rise to the state laws that targeted “sectarian” faiths, commonly called “Blaine Amendments.” See id. at 828-29 (plurality opinion of Thomas, J., joined by Rehnquist, C.J., and Scalia and Kennedy, JJ.). The opinion criticized the Court’s prior use of the term “sectarian” in Establishment Clause jurisprudence, because “hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow.” Id. at 828. The opinion continued: Opposition to aid to “sectarian” schools acquired prominence in the 1870s 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.” See generally Green, The Blaine Amendment Reconsidered, 36 AM. J. LEGAL HIST. 38 (1992). Mitchell, 530 U.S. at 828. The plurality concluded that “the exclusion of pervasively sectarian schools from otherwise permissible aid programs” – the very purpose and effect of the state constitutional provisions here – represented a “doctrine, born of bigotry, [that] should be buried now.” Id. at 829. In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), three Justices provided a detailed account of the relevant history in dissent. See id. at 720-21 (dissenting opinion of Breyer, J., joined by Stevens and Souter, JJ.). Not only did they recognize that the Blaine Amendment movement was a form of backlash against “political efforts to right the wrong of discrimination against religious minorities in public education,” they explained how the term “sectarian” functioned within that movement. Id. at 721. [H]istorians point out that during the early years of the Republic, American schools – including the first public schools – were Protestant in character. Their students recited Protestant prayers, read the King James version of the Bible, and learned Protestant religious ideals. See, e.g., D. Tyack, Onward Christian Soldiers: Religion in the American Common School, in History and Education 217-226 (P. Nash ed. 1970). Those practices may have wrongly discriminated against members of minority religions, but given the small number of such individuals, the teaching of Protestant religions in schools did not threaten serious social conflict. Zelman, 536 U.S. at 720. The Justices recounted how the wave of immigration starting in the mid-19th Century increased the number of those suffering from this discrimination, and correspondingly the intensity of religious hostility surrounding the “School Question”: Not surprisingly, with this increase in numbers, members of non-Protestant religions, particularly Catholics, began to resist the Protestant domination of the public schools. Scholars report that by the mid-19th century religious conflict 8