National Catholic Register


Judges vs. Catholics? Three Recent Decisions

BY Gerald J. Russello

September 19-25, 2004 Issue | Posted 9/19/04 at 12:00 PM


Bad news, the old superstition tells us, comes in threes. American Catholics have recently gotten their share in the form of three judicial opinions.

First, a California court ruled that Catholic hospitals must subsidize contraceptives as part of their employee health insurance plans, despite acknowledging that doing so violated Catholic teaching. Then, a federal court in Washington, D.C., prohibited the national Americorps program from giving educational funds to volunteers in Catholic organizations. The court expressed concerns that the volunteers' hours would somehow be tainted by their religious environment and were not therefore “secular” enough to be eligible for the program.

Finally, just this past August, a Florida appellate court ruled in Bush v. Holmes that the state's school voucher program violated the “no aid” provision of the Florida Constitution. This case will have national impact because other states' courts are facing similar constitutional language. It will also have major implications for the nationwide system of Catholic schools, which will now have to prepare for challenges in different states.

These cases cast a disturbing light on where judges think the place of religion is in public life. Religion is viewed as a threat that must be contained, even where the danger of “establishment” is remote at best, while the actual consequences — children forced into failing schools, volunteers compelled to choose between educational support and the charity of their choice, religious institutions required to violate their faith — are very real indeed.

The Florida case concerns the state's “Opportunity Scholarship Program,” which the Legislature enacted in 1999. Parents in failing schools were eligible to receive vouchers from the state, which the parents could then use for private or other schooling. The criterion determining when parents could receive support was clear: the public school had to fail to meet state standards for two years in a given four-year period. To protect against coercive tactics by religious schools chosen by parents, the program requires, among other things, that the school receiving the vouchers affirm that no religious test would be applied against the students.

Thousands of parents took advantage of the opportunity the program offered, and many selected Catholic schools. Indeed, in one county, more than 90% of the vouchers were used for parochial schooling, a testament to the reputation and ability of the Catholic school system, and to the devotion of parents to provide a better future for their children.

In the 2002 Zelman decision, the U.S. Supreme Court found an almost identical arrangement in Ohio to be perfectly constitutional under the Establishment Clause. The key to the program's constitutionality was that the money was given to parents, to use as they chose, and not given directly to religious institutions. There was, therefore, no risk that the government was “establishing” any religion through financial support.

But the Florida court, while acknowledging that there was no federal constitutional prohibition, found that the Opportunity Scholarship Program was unconstitutional under the no-aid provision, which requires that “(n)o revenue of the state … shall ever be taken from the public treasury directly or indirectly in aid … of any sectarian institution.” The appellate court affirmed. A final ruling will likely come from the Florida Supreme Court.

The no-aid provision became part of the Florida Constitution in 1885. It is a legacy of a dark period in American history. The provision was one of the so-called “Blaine amendments” that many states adopted in the late 19th century as a direct result of anti-Catholic bigotry, which was then at a fever pitch. They are named after Maine Sen. James G. Blaine, who supported an amendment to the federal Constitution prohibiting support for “sectarian” schools. “Sectarian,” in these statutes, means Catholic, and the laws were designed to restrict the growth of Catholic schools by preventing their access to public funds.

These laws have little to do with the First Amendment and much to do with discrimination and double standards. They will be the next battleground in the fight for educational opportunity: Some 30 states have adopted Blaine amendments. Having lost at the Supreme Court, which has recognized the “shameful pedigree” of the “sectarian” language in anti-Catholic prejudice, activists are now shifting the battle to the individual state constitutions. Catholics, especially, should be aware of these cases and of the prejudicial history of the Blaine amendments.

Despite the provision's association with bigotry, the Florida court used it to invalidate the Opportunity Scholarship Program. The decision generated a vigorous dissent, which noted that the majority's reasoning extends far beyond schools. Florida has several programs that offer assistance of various types to religious institutions, including those providing health or other social services. All these are now at risk.

The majority skirted this issue, essentially arguing that “schools are different.” But this reasoning is disingenuous, because it arrogates to judges the authority to rule which activities count as religious and which do not. Indeed, the majority here noted that religiously affiliated social services are usually “operated through non-profit organizations” and implied that these may not be so “sectarian” as to be excluded from the no-aid provision. This understanding of the connections between explicitly religious and other activities is not a Catholic one, and it is a distinction the U.S. Supreme Court has largely, and wisely, rejected, because it places the activities of religious groups at the mercy of judicial panels.

These recent decisions force the Church either to conform to a world hostile to its faith or lose out on public benefits. In response, Catholic institutions need to take a hard look at their relationship with the secular world and to reaffirm both their faith and their rightful place in the public square.

Gerald J. Russello, a lawyer, lives in Brooklyn. He is the editor of Christianity and European Culture: Selections from the Work of Christopher Dawson.