Why Blaine Amendments Must Be Defended

July 10, 2015

It’s been almost two weeks since the Supreme Court decided the Obergefell case, and extended marriage equality across the nation. In that two weeks, there has been remarkably little smiting of America by a vengeful God. Either he is busy with other things, or he wasn’t overly upset by the decision after all.

Anyway, the battle, as we see, is far from over. The response to extending marriage rights has been predictable and depressing. Religious leaders, Fox News Commentators, and Republican presidential hopefuls have wailed and gnashed their teeth at the collapse of civilization, and the alleged oncoming persecution of Christians. I don’t have the space or knowledge to fully dissect this apparent need to feel persecuted felt by the Religious Right, but it is undeniable. As the Bible says, before Jesus’ Second Coming, there will be great persecution for the faithful. So, if you claim to be persecuted, it not only means the Second Coming is at hand, but also it means you are one of the faithful. Living in comfort and safety means you are a sinner who doesn’t love God enough. Like “the gays,” or “the liberals,” or “the French.”

In Lower Merion, PA, a case has just come to light where a Roman Catholic elementary school has terminated one of its teachers, Margie Winters, after parents discovered she was married to another woman, and complained. Ms. Winters had taught at the school for 8 years, and was the Director of Religious Education; she was married when she got the job, and was told she could only inform other teachers, but should hide her orientation and marital status from parents.

American courts are incredibly wary of getting involved in the internal decision making of religious groups. Churches have long benefited from “the ministerial exemption” whereby internal, doctrinal based matters of religious groups are considered non-reviewable by courts. This is based both on free exercise – churches should decide their own rules – and the Establishment Clause – government should not be excessively entangled in religion. This exemption was dramatically broadened in 2012, when the Supreme Court decided Hosanna Tabor v. EEOC. In this case, a teacher at a Lutheran school was diagnosed with narcolepsy, and was fired. Her lawsuit claiming discrimination was dismissed, as the Supreme Court ruled the ministerial exemption covered her, even though her religious duties amounted to only 45 minutes per week.

The Archdiocese of Philadelphia will likely claim that Ms. Winter’s termination is a matter of internal church doctrine that should be unreviewable by the court system, if such a case can even be brought, as the anti-discrimination ordinance in Lower Merion Township does not apply to religious organizations unless they are “supported in whole or in part by government appropriations.” However, this is a classic example of how religious groups are seeking to both have their cake and eat it. They claim their religious freedom exempts their schools from obeying the same rules everyone else has to obey – and, indeed, after Justice Alito’s legally flawed and massively expansive reading of RFRA in Hobby Lobby they may well be able to successfully claim such an exemption. However, they also seek, though voucher programs, state scholarships, and tax breaks, to have such schools paid for by taxpayers.

This is why Blaine Amendments, the constitutional provisions in 38 states which restrict state money from being used to fund sectarian organizations, are of such critical importance. They are under attack nationwide, with groups such as the inappropriately named Becket Fund for Religious Liberty leading the charge. It is Florida’s Blaine Amendment under which the Council for Secular Humanism sued the state of Florida for funding sectarian halfway houses, and it is Oklahoma’s version which is preventing a Ten Commandments monument being hosted at the state capitol. Some maintain these state laws were born initially out of anti-Catholic prejudice. This is a debatable historical question, but even if that were true they now serve a key role to protect all citizens, secular and religious, Catholic and Protestant, Jewish and Muslim. They stop taxpayers being forced to pay for the religious beliefs and religious education of other people.

Religious institutions such as schools and hospitals cannot have this both ways. If a religious organization accepts state money, it should play by the same rules as everyone else. A secular humanist should not have to pay taxes to fund a rehabilitation facility claiming that faith in Jesus Christ is the only way out of addiction. Similarly, a Catholic should not have to fund a fundamentalist Baptist school which teaches that the Pope is the antichrist. And a Jewish citizen should not have to pay taxes which fund an Islamic counselling center.

It is possible that religious schools and groups cannot be prevented from discriminating under current Supreme Court precedent. But it is essential we continue the fight to ensure that they do not fund that discrimination from the pockets of the tax payer.

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