Frank’s Case Book

James G. Blaine was a Republican Speaker of the House of Representatives in the late 1800’s who tried to amend the US Constitution to forbid the states from funding “sectarian” institutions. At that time the term “nonsectarian” did not carry the connotation of “secular” as it does now. The Protestant majority believed that “sectarian” described groups out of the Protestant main stream. Many were concerned that state funds might indirectly aid Catholics who were establishing their own schools to avoid the Protestant-centric instruction common at the time. Blaine’s amendment to the US Constitution managed to pass in the House, but then died when if failed to garner the super majority required in the Senate. Nonetheless, Blaine used his political influence to urge some states to pass similar amendments and to insist that as new states enter the union they attach Blaine amendments to their constitutions.

One such amendment is incorporated in the constitution of the State of Washington. It is far more restrictive than the US Constitution and explicitly states that “No public money or property shall be appropriated for or applied to any religious worship, exercise for instruction, or the support of any religious establishment.” The question the US Supreme Court is taking up in the case of Locke v. Davey is whether the prohibition is written so broadly that it infringes on the “free exercise” clause of the First Amendment.

This case began when Joshua Davey was granted the Promise Scholarship by the State of Washington. The scholarship was granted on the basis of academic excellence and need. The scholarship was valid for any field of study save one, the study of theology taught from a religious perspective, {\it i.e.,} instruction that “resembles worship and manifests a devotion to religion and religious principles in thought feeling, belief, or conduct.” The limitation on the scholarship was consistent with the state constitution and relevant state law. Davey was forced to forego the scholarship. Nonetheless, Davey was convinced the restrictions violated his First Amendment rights. If Davey were willing to fudge a little on his course of study, he probably could have managed to study the courses he wanted to and still retain the scholarship. Instead of sacrificing his integrity, he sued.

Davey lost at trial. However, the Ninth Circuit Court of Appeals, the notorious Circuit Court famous for striking down the use of “under God” in the Pledge of Allegiance and the Circuit Court with dubious distinction of having its decisions overturned by the US Supreme Court more frequently than any other Circuit Count, surprisingly ruled in favor of Davey. Wanting to retain the prohibition against the use of scholarship funds for religious study, the State of Washington asked the Supreme Court to review the case. The case is now under consideration.

The question boils down to whether Washington’s Constitution is so restrictive that it violates the US Constitution’s free exercise clause of the First Amendment. Case law is clear. If state law is more restrictive of individual liberties than US Constitution, state law must yield.

The previous jurisprudence of the Supreme Court suggests that any law that makes any classification based on religion must pass strict scrutiny. In Rosenberger v. University of Virginia, the Court found that the University of Virginia could not deny funds to a student religious group when it granted funds to other student groups. Indeed, treating religious groups differently in this case was tantamount to stigmatizing religion, when government’s role should be one of neutrality. The Court concluded that no reasonable person could conclude that the funding of the student led group constituted an endorsement. Will they draw a similar conclusion in the Locke v. Davey case?

The case if full of ironies. The American Civil Liberties Union (ACLU), which usually beats its chest about the necessity of tolerance for minorities, in its amicus curie brief before the Court is siding with the State of Washington and the Blaine Amendment originally motivated by intolerance of Catholics. It suggests that the ACLU position is more reflexively anti-religious than based on a principled understanding of the First Amendment. On the other hand, Conservatives who are usually sympathetic to state autonomy are seeking to use the Federal Courts to override state action. It sometimes seems that the arguments about state versus federal rights is based less on a thoughtful theory of federalism, on more on whether the state or federal government happens to be on the favored side the issue.

Not surprisingly, Court handicappers believe the case might hinge on the vote of Sandra Day O’Connor.

Constitutional democracies and their associated individual liberties can be buttressed by the force of written law, but ultimately the people and those who are entrusted with leadership in democratic institutions must respect individual liberties. No dam of written words can stand indefinitely against the perpetual force of individual and collective actions undermining individual liberties. The problem is that it is natural for human beings to desire outcomes some so badly that they rationalize ignoring individual rights. Honoring the rights of others rests on a respect and tolerance for the capacity of others to decide for themselves, even when we disagree. Tolerance can only be a virtue if practiced with respect to activities with which there is strong disagreement.

This natural tendency to ignore individual liberties in the pursuit of what some consider laudable goals accounts for the erosion of Fourth Amendment protections in pursuit of the War on Drugs and the sacrifice of First Amendment protections at the altar of campaign finance reform and abortion rights. To this we can now add circumscription of religious freedom in pursuit of the gay rights agenda.

Denver District Court Judge John W. Coughlin is probably a nice enough fellow who, I imagine, fancies himself as a compassionate modern-day Solomon adjudicating thorny issues. However, there are places that not even judges should intrude and Coughlin has taken it upon himself to control the religious instruction a parent provides her child.

It all started about eight years ago when Dr. Cheryl Clark adopted a little girl to raise with her lesbian partner Elsey McLeod. In 2000, Clark converted to Christianity and left the relationship, leaving the disposition of the child a point of conflict. Since Clark had been the only one to officially adopt the child, it would seem that McLeod had no parental rights whatsoever. Clark voluntarily offered visitation privileges, but McLeod sued for joint custody.

Judge Coughlin expanded a legal doctrine usually reserved for abandoned or neglected children who have been cared for by a third party. Clark declared that McLeod was a “psychological parent” who was entitled to share custody and equal parenting time. This decision represents an interesting issue in its own right. A principled extension of Coughlin’s jurisprudence would confer equal parental rights to a live-in boyfriend who neither sires nor adopts a child. However, for our purposes here, let us concede McLeod’s parental rights, regardless of serious reservations concerning the legal principle applied.

Given that McLeod and Clark have radically divergent religious views, Coughlin granted Clark authority over the young girl’s religious instruction. Coughlin overstepped his authority when he instructed that Clark, “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” Clark’s order was a presumptuous and vague injunction preventing Clark from exercising her First Amendment religious privileges. “Homophobic” itself is a problematic term. The term suggests fear but has been pulled and stretched to apply to anything that does not strictly conform to the gay rights agenda.

It is not uncommon in divorce cases for judges to constrain a custodial parent from disparaging the other parent. There is no indication that Clark made a point of disparaging her former partner, but even if she had, the restriction on religious instruction exceeds the judge’s constitutional authority. Consider the logic of the principle Coughlin is applying. If one parent divorces another for infidelity, does that mean that the custodial parent cannot attend or provide religious instruction to the child in a church that honors religious prohibitions against infidelity, lest the non-custodial parent would be indirectly cast in an ignoble light? If a non-custodial parent is a soldier, does that give a judge the authority to instruct a custodial parent to not attend a pacifist church? How far will judges like Coughlin go in deciding upon the specific religious doctrines that are suitable for instruction?

This case is on appeal. The US Constitution can only protect us to the extent that government institutions, particularly the Courts, honor constraints on arbitrary government power. Judge Coughlin’s ruling is an example of a good person yielding to the temptation of conforming to popular prejudices.

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” — Fourteenth Amendment to the US Constitution.

In the notorious 1896 decision by the US Supreme Court, Plessy v. Ferguson, the Court ruled that state-mandated disparate treatment by race did not violate the equal protection clause of the Fourteenth Amendment. In a desperate and convoluted effort to accommodate the social views of the time, the Court ignored the plain meaning of the Fourteenth Amendment and decided that Louisiana could pass a law requiring: “equal but separate accommodations for the white, and colored, races” on railway cars. On the lonely side of the 8-1 decision, Justice Marshall Harlan dissented:

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

In Brown v. Topeka Board of Education in 1954, the Court reversed itself, establishing the principle that government decisions could not be raced based. In his brief before the Supreme Court in Brown, the future Justice Thurgood Marshall powerfully argued that “Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere.”

The Supreme Court recently ruled on the application of racial preferences for school admissions. In the case of Gratz v. Bollinger et al. regarding the University of Michigan’s undergraduate admissions process, the Court ruled that a rigid point system that gave significant and automatic advantage based on race was unconstitutional. In a second case having to do with University of Michigan Law School admissions, Grutter v. Bollinger et al., the Court permitted racial preferences if the admissions decisions were not rigidly linked to race. This second case allowed for the application of racial distinctions to achieve a critical mass of certain racial populations so long as race was considered in a holistic view of the entire individual. The logic of the two decisions seems to be at war with one another. How can one achieve the so-called advantage of maintaining a critical mass of minority students, without adjusting the weighting in admissions criteria, however applied, to yield a given fraction of minority students?

There is a reason that affirmative action activists have almost unanimously viewed the split decisions as a victory. Since the Court now permits racial preferences to achieve diversity, advocates are confident that they can always obscure and befuddle the details of the admissions process so that potential litigants will have difficulty proving that any rigid racial preferences applied.

Let us be clear, proponents of racial preferences will find surreptitious means to systemically apply their racial criteria in the admissions process. If the nod were given to a minority students in admissions in the rare instances where the qualifications of two candidates for admissions were indistinguishable, opponents of racial preferences would not be so offended by their application and proponents would not view such preferences as so crucial in achieving their preferred mean hue of the student population.

However, in making the ruling the Court has done grave injustice to the principle of strict scrutiny when applied to circumscription of individual constitutional rites. In modern jurisprudence, the Court has applied a “strict scrutiny” to any state-sponsored distinctions based on race. To pass constitutional muster, such racial distinctions must meet a high standard of “compelling state interest.” As Justice Clarence Thomas pointed out in his dissent to Grutter v. Bollinger et al., the Court had only permitted state-sponsored racial distinctions in two classes of situations.

The first is the case of national security. The Court ruled that the state interest in restricting Japanese-Americans during World War II was sufficiently compelling to be permitted notwithstanding the protections the Fourteenth Amendment. In retrospect, it is clear that the internment of Japanese-Americans was borne more out of racial prejudice than legitimate security issues, providing additional evidence of the sorry observation in our history that it is far too easy to misapply racial distinctions.

The second category where the Court has permitted the use of racial distinction is for direct and narrow remediation of racial discrimination by an institution that has discriminated in the past. No such claim was made in the University of Michigan cases.

Elevation of the vague notion of “diversity” (of skin color but certainly not of perspective) to a compelling state interest undermines the bulwarks of the Fourteenth Amendment and other constitutional protections so that they might more easily be washed over by an unconstrained flood of government action. The jurisprudence of the Court, if logically applied, might permit racial profiling or broader search powers to address the compelling state interest of law enforcement. Thomas asks, if the Court is willing to grant deference to a school to use race-based admissions to achieve diversity, would historically black colleges be permitted to use race-based admissions to maintain the homogeneity?

Ultimately, the case can be made that race-based preferences do more to harm their potential beneficiaries by stigmatizing true excellence and achievement. However, like Plessy v.Ferguson, the recent decision to allow violations of the Fourteenth Amendment in government-sponsored school admissions will ultimately come to be viewed as a sad aberration and pathetic pandering to the conventional wisdom of the politically influential. There also remains the growing practical problem of applying racial distinctions to a population diligently, happily, and rapidly blurring those artificial categories by marriage. One can only hope that, as suggested by Justice Sandra Day O’Connor, the case for race-based preferences ought to disappear in 25 years. Unfortunately, there are too many people with a vested interest in maintaining the status quo for such preferences to slowly whither.

In the opening of his dissent, Justice Thomas, who has suffered the stigma of being treated different because of his race by both the mean-spirited and those with noble aspirations reminded us the words of the abolitionist and former slave Frederick Douglass:

“What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! …[Y]our interference is doing him positive injury.”

Once again, Douglass has proven prophetic.

Sometimes there are cases that wind their way through the corridors of the judiciary to the steps of the Supreme Court with virtually no merit. One wonders whether the justices merely want to sharpen their judicial swords by slicing up particularly pathetic arguments. One such case, Zelman v. Simmons-Harris, was argued February 20, 2002 before the Supreme Court. The case centers on the constitutionality of the use of vouchers in education. I suppose the judges had to accept the case since the Sixth District Court, in a split 2-1 decision, ruled that the Cleveland voucher program violated the Establishment Clause of the First Amendment. To not accept the case would mean the ruling would stand, confusing First Amendment jurisprudence.

The Cleveland School System is experimenting with a program that grants vouchers or scholarships to economically disadvantaged students for use at alternative schools. For many, the vouchers represent the only real opportunity to escape a failed publicly-run school system. The most commonly chosen schools are Catholic schools.

On its very face, the Sixth District Court’s reasoning is inconsistent with other common state-aid and Federal-aid programs. The Sixth District Court argued unpersuasively that the use of vouchers at private schools somehow implied a state endorsement.

The notion does not even bear up to the giggle test. Governments provide resources under many programs that the recipients are free to use at a number of institutions, including religious ones, with no implied endorsement. As one wit had it, the use of food stamps to purchase cabbage does not imply a government endorsement of cabbage. A close analogy to state vouchers is Federal college aid to students. Students can use Federal aid to attend the University of Notre Dame, Georgetown, or any number of religiously affiliated institutions and these arrangements pass Constitutional muster. Other people use Medicare funds to pay for stays at religiously affiliated hospitals with no violation of the Establishment Clause.

Given these other programs, why is there so much concern about the constitutionality of vouchers going to younger students? Why is aid to primary and secondary students treated differently from similar aid to college students? Part of the problem is a misreading of history. There is a long legislative history, dating back to the 19th century, where states have specifically prohibited funds to primary and secondary sectarian schools. The argument is that an early, and therefore instructive, understanding of the First Amendment is that funds could only go to non-sectarian schools. Hence, such funds, are given additional scrutiny, even if the funds go directly to students.

The Becket Fund for Religious Liberty researched this history and found it to be far more clouded. The term “non-sectarian” in 19th century legislation did not mean “secular,” as one might use the term today. It really meant non-denominational Protestant. Public schools in the 19th century had no problems instructing in Protestant beliefs or using the King James Version of the Bible for moral education. The prohibition of funds to sectarian schools was not an effort to avoid violating the Establishment clause of the First Amendment. Indeed, in the 19th century the “Incorporation” doctrine did not exist and Constitutional First Amendment proscriptions did not apply to the states. Rather, efforts to prohibit funds to non-sectarian schools arose out of a Nativist belief that state funds should not be used to aid Catholic schools in any way.

No one argues that state funds should be used directly for religious instruction, but there is really no Constitutional prohibition preventing students using state-supplied scholarships or vouchers at schools that parents choose. One may argue that vouchers are or are not effective means to improve education, but they are Constitutional without question. In the 19th century, opposition to public funds following students to alternative schools was partially based on ugly anti-Catholic bias. One hopes that the current objections are borne out of honest mistakes and not similar anti-Catholic and perhaps anti-religious sentiment.