The state of Oklahoma has removed a monument of the Ten Commandments from the grounds of the state capitol. After much complaining and suing, the state supreme court finally sided with the ACLU and other groups insisting that the monument violated the state’s constitution. Specifically, the court held the monument to violate Article 2, Section 5:
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.
This latest decision is just another in a long line seeking to strip our public square of all traces of religious expression rooted in the Judeo-Christian tradition from which our liberties stem. It rests on an astonishing, if not willful, ignorance of our constitutional tradition and bodes ill for the future of religious freedom and, indeed, all our liberties in the face of judges and activists eager to twist the clear meaning of constitutional language to suit their own purposes.
In one sense this is old news. For decades now courts have been acting as our nation’s Decorators-in-Chief, deciding when a nativity scene is sufficiently “neutralized” by Santa Clauses and other secular objects to be allowed display on public property. The same has gone for other holidays, all with the same goal: to see to it that no one might possibly get the impression that “the government” at any level “endorses” any particular religion, or religion itself, over nonreligion. The premise of court decisions in this area is that constitutional provisions protecting against a federal religious establishment were intended to keep the most sensitive antireligious persons among us from the horrors of seeing something religious on public property. The premise is self-evidently ridiculous. It also is quite difficult to apply to the Ten Commandments, which so obviously serve as a fundamental and continuing basis for our law and legal tradition.
How did we get here? We can thank United States Senator James G. Blaine. During the 1870s, Blaine promoted a constitutional amendment largely identical to the one used by the Oklahoma Supreme Court to force removal of the Ten Commandments monument. Blaine’s goal was to deny funding to Catholic institutions, and Catholic schools in particular, across the nation. The Blaine Amendment would have radically altered the meaning and impact of the First Amendment’s prohibition on a national religious establishment. It would have extended the logic of that amendment to the states and further extended it to forbid public funding in instances where it was universally recognized not to violate any constitutional provision. Such practices included the donation of public land for church use and public funding for various religious activities, including in the areas of education and charitable work.
Blaine did not see his amendment as any radical departure from American constitutional practice, however, because it was specifically aimed at only one “sectarian” group, namely Catholics. As Philip Hamburger has shown in his important book, Separation of Church and State, “sect” had been a not-so-subtle codeword for “Catholic” for decades. Its roots lay in conflicts over funding for public schools, which traditionally in the United States had included religious instruction. This instruction had long been overtly Protestant and anti-Catholic in America, and Catholic immigrants had sought to remove their children to Catholic schools and gain public funding for those schools on a par with the Protestant public schools. Catholic success in this area might have produced a school system open to various faiths and traditions, decentralized in its administration and reliant on families and local groups to work out for themselves how best to serve the interests of their communities and children.
Unfortunately, a number of prominent Protestant leaders during the nineteenth century chose to view Catholic successes in this area as a threat to the American way of life, because they viewed Catholicism (unlike the splintered multisect and somewhat watered-down Protestantism taught in public school) as monolithic and dangerously antirepublican. “Sect” means “Catholic” because in some nineteenth-century Protestant minds Protestants were independent people who happened to understand God and His creation in Protestant terms, whereas Catholics were indoctrinated by the institution of the Catholic Church to believe in a long list of (supposedly strange and subversive) religious myths and political doctrines.
Local control over education and public religious expression has been rejected by the courts, as well as the federal education bureaucracy, because it cannot possibly cover all “sects.” At the same time, some local communities have sought to be “inclusive” to the point of lunacy, for example setting aside public spaces for all comers around the times of religious holidays. Minority religious groups sometimes get in on the act as well—some in good faith, others (Satanists, atheists, and, not kidding, those “worshipping” a spaghetti monster) not—by adding their “displays” to those actually celebrating the holiday in question.
While the Blaine Amendment was defeated at the federal level, a number of states enshrined its language in their own constitutions. This is essentially what happened in Oklahoma. The language of the original Blaine Amendment can be read somewhat more narrowly than that of Oklahoma. It reads:
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 therefore, 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 proposed federal language refers to all states rather than merely the state of Oklahoma, and it does not go to the lengths the Oklahoma text does in spelling out the prohibition on support for priests and ministers of all kinds. Thus, the Oklahoma statute by its terms applies beyond the anti-Catholic intent of the federal Blaine Amendment to forbid the use of “public money or property” to support religious ministers and institutions of all kinds. Some may wish to claim that this more expansive language cleanses the provision of its anti-Catholic origins, but in fact it merely extends the anti-Catholic bigotry of Blaine’s original attempt into a more general antireligious bigotry opposed to the founding principles of our free republic, devoted as it was from the start to freedom of worship within self-governing communities.
It is important to note, however, that the Oklahoma provision remains irrelevant to the current controversy. It remains untenable to claim that the language of Article 2, Section 5 forbids display of the Ten Commandments on the grounds of the state capitol. In no way does the display of the fundamental code on which not just Christianity but Judaism and the moral and legal codes of Western Civilization were built, constitute use of “public money or property” “for the use, benefit, or support of any sect, church, denomination, or system of religion.” No one is charging admission to the state capitol grounds or selling pictures of the monument with proceeds going to any particular church, let alone the “sect” of Catholicism or any other “system of religion.” Rather, our historically illiterate judges (and ACLU) are seeking to prevent any “mixing” of religion and the public square.
The claim often is made that forcing all religious expression into a hermetically sealed private sphere will somehow protect religion from “corruption” by politics. But, in addition to having no basis in the text or tradition of our Constitution, such claims are utterly specious. Rather, what is being done is that religious faith is being forcibly relegated to the status of an opinion like any other, and one of particular danger to the common good because it is “irrational” and may go against the latest ideological trend.
We all know where this is heading: punishment for those who dare to act on the grounds of their religious faith in areas where the courts have determined it “discriminatory” to do so. Defenders of various state Blaine Amendments dismiss their anti-Catholic origins as irrelevant. But what they are doing is merely extending the original animus of these amendments to cover all mainstream religions in a manner intended to drive all competitors to the will of the state, and particularly of “progressive” ideologues who would use the state for their own ends, from the public square.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.