Saturday, July 13, 2002
Dale: Lawyer Bloviation Alert: Commentary on Recent Supreme Court Opinions.
I think it's fair to say that if you read carefully the recent Establishment Clause precedents of the Supreme Court, you will notice a very subtle but perceptable overtone of anti-Catholic bias in the various opinions of the liberal justices. Sometimes, it's not so subtle, as an in-your-face broadside by the late Justice William O. Douglas in Lemon v. Kurtzman made clear. From Footnote 20:
"'In the parochial schools Roman Catholic indoctrination is included in every subject. History, literature, geography, civics, and science are given a Roman Catholic slant. The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system. Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think.' L. Boettner, Roman Catholicism 360 (1962)."
And again, from 403 U.S. at 636:
"'[I]n the public school the selection of a faculty and the administration of the school usually rests with a school board which is subject to election and recall by the voters, but in the parochial school the selection of a faculty and the administration of the school is in the hands of the bishop alone, and usually is administered through the local priest. If a faculty member in the public school believes that he has been treated unjustly in being disciplined or dismissed, he can seek redress through the civil court and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dismissed he has no recourse whatsoever. The word of the bishop or priest is final, even without explanation if he so chooses. The tax payers have a voice in the way their money is used in the public school, but the people who support a parochial school have no voice at all in such affairs.' L. Boettner, Roman Catholicism 375 (1962)."
What's the big deal about that, you may ask? Well, if you're asking, you're not Catholic. These two quotes hammer home the stereotypes of Catholicism as (1) an un-American religion of (2) mindless obedience and (3) harsh authoritarianism. What were you really trying to say, Justice Douglas? Loraine Boettner's Roman Catholicism is the original anti-Catholic screed--rightly called the "anti-Catholic's Bible." It is a 466 page demonstration of an advanced case of cranial-gluteal impaction. Presbyterian converts to the faith say that Boettner was generally a capable theologian. They also say he had an enormous blind spot regarding the Church, which he demonstrated in spades in this work. In short, Boettner had it in for Catholicism, and everyone knew it. Douglas could not have missed it. The grim humor is that this is a perfect example of unintended consequences: the devout Boettner's work was pressed into service by a rabid secularist hostile to the presence of Christianity in the public square.
Usually, however, the hostility is much more subtle, couched in terms of "sectarianism" or "indoctrination."
In Mitchell v. Helms, a plurality opinion written in 2000 by Catholic Justice Clarence Thomas, and joined by fellow Catholic Antonin Scalia, the Court called a spade a spade with regard to the "sectarian" label. In Mitchell, the Court held that a program loaning media and computer equipment to Catholic schools (along with other private schools) did not violate the Establishment Clause. Near the end of Justice Thomas' opinion, he saw fit to note that the very term "sectarian" had long been a code word for "Catholic", and should be discontinued as a relic of anti-Catholic bias:
"Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. Cf. Chicago v. Morales, 527 U. S. 41, 53-54, n. 20 (1999) (plurality opinion). Although the dissent professes concern for "the implied exclusion of the less favored," post, at 1, the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to "sectarian" schools acquired prominence in the 1870's with Congress's 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). Notwithstanding its history, of course, "sectarian" could, on its face, describe the school of any religious sect, but the Court eliminated this possibility of confusion when, in Hunt v. McNair, 413 U. S., at 743, it coined the term "pervasively sectarian"--a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today's dissent exemplifies chiefly by reference to such schools. See post, at 20-21, 39-41 (Souter, J., dissenting)."
In 2002, in the Zelman voucher case, despite this collegial notice from their conservative colleagues in Mitchell, the terms "sectarian" and "pervasively sectarian" were used repeatedly by the liberal dissenters, most notably coupled with notions of "indoctrination", discord or "unpopular" views (especially with respect to the roles of women). Coincidence? Admittedly, the terms were also used in the majority opinion, but almost always in reference to previous precedent or an amici brief employing the terminology. It may be reading too much into the precedent, but given the Court's history on these issues, suspicion is warranted.
I think it's fair to say that if you read carefully the recent Establishment Clause precedents of the Supreme Court, you will notice a very subtle but perceptable overtone of anti-Catholic bias in the various opinions of the liberal justices. Sometimes, it's not so subtle, as an in-your-face broadside by the late Justice William O. Douglas in Lemon v. Kurtzman made clear. From Footnote 20:
"'In the parochial schools Roman Catholic indoctrination is included in every subject. History, literature, geography, civics, and science are given a Roman Catholic slant. The whole education of the child is filled with propaganda. That, of course, is the very purpose of such schools, the very reason for going to all of the work and expense of maintaining a dual school system. Their purpose is not so much to educate, but to indoctrinate and train, not to teach Scripture truths and Americanism, but to make loyal Roman Catholics. The children are regimented, and are told what to wear, what to do, and what to think.' L. Boettner, Roman Catholicism 360 (1962)."
And again, from 403 U.S. at 636:
"'[I]n the public school the selection of a faculty and the administration of the school usually rests with a school board which is subject to election and recall by the voters, but in the parochial school the selection of a faculty and the administration of the school is in the hands of the bishop alone, and usually is administered through the local priest. If a faculty member in the public school believes that he has been treated unjustly in being disciplined or dismissed, he can seek redress through the civil court and he is guaranteed a hearing. But if a faculty member in a parochial school is disciplined or dismissed he has no recourse whatsoever. The word of the bishop or priest is final, even without explanation if he so chooses. The tax payers have a voice in the way their money is used in the public school, but the people who support a parochial school have no voice at all in such affairs.' L. Boettner, Roman Catholicism 375 (1962)."
What's the big deal about that, you may ask? Well, if you're asking, you're not Catholic. These two quotes hammer home the stereotypes of Catholicism as (1) an un-American religion of (2) mindless obedience and (3) harsh authoritarianism. What were you really trying to say, Justice Douglas? Loraine Boettner's Roman Catholicism is the original anti-Catholic screed--rightly called the "anti-Catholic's Bible." It is a 466 page demonstration of an advanced case of cranial-gluteal impaction. Presbyterian converts to the faith say that Boettner was generally a capable theologian. They also say he had an enormous blind spot regarding the Church, which he demonstrated in spades in this work. In short, Boettner had it in for Catholicism, and everyone knew it. Douglas could not have missed it. The grim humor is that this is a perfect example of unintended consequences: the devout Boettner's work was pressed into service by a rabid secularist hostile to the presence of Christianity in the public square.
Usually, however, the hostility is much more subtle, couched in terms of "sectarianism" or "indoctrination."
In Mitchell v. Helms, a plurality opinion written in 2000 by Catholic Justice Clarence Thomas, and joined by fellow Catholic Antonin Scalia, the Court called a spade a spade with regard to the "sectarian" label. In Mitchell, the Court held that a program loaning media and computer equipment to Catholic schools (along with other private schools) did not violate the Establishment Clause. Near the end of Justice Thomas' opinion, he saw fit to note that the very term "sectarian" had long been a code word for "Catholic", and should be discontinued as a relic of anti-Catholic bias:
"Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. Cf. Chicago v. Morales, 527 U. S. 41, 53-54, n. 20 (1999) (plurality opinion). Although the dissent professes concern for "the implied exclusion of the less favored," post, at 1, the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to "sectarian" schools acquired prominence in the 1870's with Congress's 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). Notwithstanding its history, of course, "sectarian" could, on its face, describe the school of any religious sect, but the Court eliminated this possibility of confusion when, in Hunt v. McNair, 413 U. S., at 743, it coined the term "pervasively sectarian"--a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today's dissent exemplifies chiefly by reference to such schools. See post, at 20-21, 39-41 (Souter, J., dissenting)."
In 2002, in the Zelman voucher case, despite this collegial notice from their conservative colleagues in Mitchell, the terms "sectarian" and "pervasively sectarian" were used repeatedly by the liberal dissenters, most notably coupled with notions of "indoctrination", discord or "unpopular" views (especially with respect to the roles of women). Coincidence? Admittedly, the terms were also used in the majority opinion, but almost always in reference to previous precedent or an amici brief employing the terminology. It may be reading too much into the precedent, but given the Court's history on these issues, suspicion is warranted.
