In the aftermath of the Civil War, some voters and elected officials feared that rising Catholic immigration would transform American Catholicism from a small minority faith, with adherents largely confined to Maryland and Louisiana, into a nationwide political force. Nativists, seeking to “Americanize” Catholics, tried to amend the U.S. Constitution to mandate nationwide free public schools and ban public funding of faith-based schools. Supporters of the amendment sought to undermine Catholic, or what they called “sectarian,” schools. The amendment, proposed in a speech by President Ulysses S. Grant and championed by Congressman James Blaine, quickly passed the House before failing narrowly in the Senate.
The amendment’s supporters then turned their sights away from Washington and toward the states. They began a concerted campaign to ensure that Catholic institutions, particularly nascent Catholic schools, would never receive public funding, describing these institutions (and, to a lesser extent, those associated with other non-Protestant religions) as “sectarian.” Their efforts culminated in several state laws that explicitly disfavored faith-based organizations, including schools, because of those institutions’ “sectarian” nature. Some states included a prohibition on the funding of “sectarian” schools and other institutions as a condition of entering the union; many others did so voluntarily. All told, 38 states adopted a Blaine Amendment in their constitutions, and enacted other religious-institution funding bans in the same spirit.
A recent series of Supreme Court rulings have deemed Blaine Amendments, and states’ efforts to penalize faith-based organizations, unconstitutional. Yet many of these historic anti-Catholic laws remain on the books. Too few states have taken appropriate action to ensure that their laws and public programs eliminate the vestiges of our nation’s history of anti-Catholicism and conform to the Supreme Court’s interpretation of the Free Exercise Clause.
One state, however, has proved an exception: New Hampshire. The Granite State’s legislature recently enacted legislation that removed the words “sectarian” and “nonsectarian” from its lawbooks and, in so doing, largely eliminated laws that unconstitutionally discriminate against religious organizations. By removing the requirement that services provided in public programs be “nonsectarian,” New Hampshire has broadened the opportunities for the state to cooperate with faith-based organizations and brought its law in line with current First Amendment doctrine. These efforts signal the state’s desire to honor the Free Exercise Clause and ensure that its laws conform to constitutional principles.
New Hampshire’s efforts are both politically prudent and morally justified. First, the reforms lessen the state’s exposure to expensive lawsuits. In recent years, the Supreme Court has often sided with faith-based organizations that challenge discriminatory state laws. Proactively rectifying unconstitutional aspects of New Hampshire law saves state resources that might otherwise be deployed to defending or settling doomed lawsuits.
Second, these reforms acknowledge the venerable history of faith-based organizations in America. Such groups have for centuries served as social escalators and safety nets, feeding the hungry, clothing the naked, educating the young, and caring for the infirm. At their best, they provide a forum for connection and service in an increasingly isolating world. By repealing laws that discriminate against these religious groups, New Hampshire can deploy taxpayer funds to further their noble efforts.
Third and finally, New Hampshire is abiding by and promoting the rule of law. America’s fragile union depends on agreeing to live by shared constitutional norms, even when those norms are inconsistent with local policy preferences. California’s Stephen Reinhardt, referring to his own often-dubious interpretations of law, once quipped that the Supreme Court “can’t catch ‘em all.” That attitude—which judges, states, and legislatures display when they evade, rather than work within or to reform, the Constitution—tears at the nation’s fabric. New Hampshire, by ensuring its laws are in keeping with the Constitution, demonstrates a needed (and unfortunately uncommon) commitment to the rule of law.
New Hampshire still has work to do to ensure that faith-based schools receive fair and equal treatment. It should, for example, repeal its requirement that all charter schools have a “secular orientation.” Still, the state’s recent reform efforts take significant strides in overcoming America’s history of anti-Catholicism. Let’s hope other states follow New Hampshire’s lead.
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