Trinity Lutheran v. Comer was the most important case of this Supreme Court term both because of its effects on educational policy and on the future character of the American polity. There a six-member Court majority held that Missouri could not prevent a church from competing for public funds for rubber mats to make its preschool playground safer for children. The Court held that the government cannot withhold funds for an essentially secular project simply because the potential recipient is engaged in religious exercise. As I previously suggested it would, this case extended to free exercise rights the doctrine of unconstitutional conditions previously applied to other constitutional rights.
As the Chief Justice Roberts noted, the only practical result of the denial in this particular case would have been “in all likelihood, a few extra scraped knees.” Nevertheless, the future consequences of this holding are likely very substantial. There are 37 states that have restrictions on state aid to institutions which are engaged in religious exercise. State Supreme Courts have often interpreted these prohibitions to prohibit school voucher programs and other forms of assistance for education by religious institutions.
But this case will sweep many of these decisions away.
In his magisterial Separation of Church and State (2002), Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. In the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.
At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments. Missouri did so in the same year that Blaine’s Amendment failed in the Senate.
For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.
Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.
The history of American public education may be told as a history of gradual secularization driven not by religious neutrality but religious enthusiasm.