The Washington PostDemocracy Dies in Darkness

Separating church and state is nothing like racial discrimination

Conservatives judges’ attempts to compare separation of church and state to racism are misguided

Supreme Court Justice Brett M. Kavanaugh said the Montana Supreme Court's ruling against allowing taxpayer-funded scholarships for Christian schools is rooted in “grotesque religious bigotry against Catholics.” (Susan Walsh/AP)

On Wednesday morning, Chief Justice John G. Roberts Jr. took a break between stints holding the gavel at President Trump’s impeachment trial to preside over a Supreme Court hearing in a dispute that could blow a hole through America’s church-state wall.

If the tenor of the oral argument is an indication, the ruling this spring may hinge on the dangerous fallacy that separation of church and state is hostility toward religion akin to overt racial discrimination.

The case, Espinoza v. Montana Department of Revenue, involves taxpayer-funded scholarships that helped parents pay tuition at primarily Christian schools. In 2018, the Montana Supreme Court found the program incompatible with a provision of its state constitution. Now, Roberts and his eight colleagues will decide whether this application of Montana’s no-aid-to-religion rule — a version of which is found in the constitutions of three-quarters of the states — squares with the religious-freedom umbrella in the U.S. Constitution.

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Richard Komer, the lawyer for families who would like the scholarships reinstated, brought up the question of race early when he said ending the program was as bad as withholding funds from “African American schools.” Conservative justices pressed this point. Would it be constitutional, Justice Samuel A. Alito Jr. asked Montana’s lawyer, Adam Unikowsky, to stop providing state money to majority-black schools? Justice Brett M. Kavanaugh pointed to “grotesque religious bigotry against Catholics” as the impetus for Montana’s rule. And Roberts asked Unikowsky how racial discrimination is “different” from unequal treatment based on religion “which is also protected under the First Amendment.”

Justice Stephen G. Breyer commented “race is different from religion” because “there is no Establishment Clause in regard to race.” The opening words of the Bill of Rights tell Congress to make no law “respecting an establishment of religion.” There is no equivalent rule requiring the government to cease and desist when a policy happens to support one racial group more than another. On the contrary, the amendments passed in the aftermath of the Civil War expressly authorize laws to remediate racial discrimination.

While there is no legitimate reason to discriminate against someone based on race, Justice Elena Kagan said there are multiple justifications for canceling Montana’s scholarship program that “have nothing to do with animus toward religion.” The state may want to protect taxpayers uneasy with their taxes propping up religious entities, Kagan added, or to prevent “divisiveness and conflict within a society.”

In James Madison’s words, states may seek to prevent the destruction of “moderation and harmony” among sects pitted against one another in a scramble for the public purse. Or, as Unikowsky explained, people of faith may want to protect “religious schools from political influence” by shielding their curriculums from the scrutiny of state bureaucrats.

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These reasons for drawing a line between government and parochial schools are a far cry from the sinister motives several justices found underlying Montana’s no-aid rule. But they seemed not to have occurred to some of Kagan’s colleagues. When Unikowsky mentioned religious supporters of the provision, Kavanaugh was incredulous: “You think that was the design of the no-aid clause — to help religious institutions?” For Kavanaugh and several of his colleagues, steering government money away from religious institutions is just racism by another name.

But just two years ago, when the Supreme Court heard Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case asking whether a Christian baker could turn away a gay couple seeking a wedding cake, conservatives hummed a different tune. Asked to explain why a baker could shut his door to a gay couple but may not refuse to bake a cake for an interracial wedding, the baker’s lawyer said “race is different.” And in the same hearing, Noel Francisco, President Trump’s solicitor general, told the justices that “race is particularly unique.”

Keep track of the logic: Religious scruples justify discriminating against gays and lesbians seeking equal access to goods in a marketplace, but religious parents are victims of discrimination if 37 states erect solid walls between church and state to keep the peace and preserve public education funding.

Historians differ over the extent to which anxiety over Catholic demands for taxpayer dollars for parochial schools fueled the adoption of the “Blaine Amendments” in the late 19th century. But Montana’s amendment was ratified in 1972. The rise of the Christian right since the 1980s and the increasingly tight political bond between Catholics and Protestant evangelicals make it impossible to claim religious conservatives are an oppressed or marginalized group in the 21st century.

Regardless, anti-Catholic bias in the United States is nowhere near as pervasive as racial discrimination, the nation’s oldest, deepest and still destabilizing fault line.

But while conservative justices still ring alarms about anti-Catholic sentiment, they are just as quick to overlook the continuing effects of racial discrimination. In Shelby County v. Holder, his controversial 2013 opinion striking down the heart of the Voting Rights Act, Roberts wrote that because “our country has changed,” protections for racial minorities in states with historically discriminatory voting practices were no longer necessary.

But since that decision, many of the states formerly held accountable under the Voting Rights Act have rushed to pass restrictive voter ID laws and other changes with the aim of suppressing voting rates among minorities.

Before drafting an opinion in Espinoza that shreds amendments in states from Montana to Iowa to Florida, Roberts might consult the principle of equal state sovereignty he wrote into Shelby County. If that commitment to states’ rights has currency beyond a single case, it should cast doubt on a move that — based on phantom fears of religious prejudice — takes a bulldozer to dozens of church-state walls.