Scholars of legal and religious history, including Willamette University College of Law Professor Steven K. Green filed an amicus brief for Trinity Lutheran Church of Columbia, Inc. v. Pauley, being heard by the United States Supreme Court in the October 2016 term.
The brief, filed in support of the respondent, addresses Trinity Lutheran’s challenge to the legitimacy of article one, section 7 of the Missouri Constitution in which they allege that the article arose from pervasive anti-Catholic animus and discusses the lack of connection between the Blaine Amendment and the article. Trinity Lutheran asserts that if the rationale behind the article were illegitimate or corrupted by a bigoted history, then Trinity Lutheran’s free exercise and equal protection claim should prevail.
The scholars advise the court to rely cautiously on history explaining that legal analysis and historical methodology use different processes and ask different questions. “The no-funding principle, based on notions of religious liberty and freedom of conscience, arose prior to the rise of significant Catholic parochial schooling and independently of the nativist anti-Catholic movement. Specifically, no evidence ties Missouri’s no-funding provisions to anti-Catholic motivations.”
The brief explains that the no-funding principle, which limit public school funds to common schools, was established in many locales before the earliest controversies surrounding catholic school funding were established.
The scholars contend the Blaine Amendment’s creation came from a variety of motivations of which anti-Catholicism was only one. The Blaine Amendment attempted to achieve two things, first was to apply the First Amendment directly to state actions and second was to prohibit the allocations of public school funds or other public resources to religious institutions. The scholars explain that the debate surrounding the Blaine Amendment was “a combination of at least three distinct issues, whether public schooling should be secular or religious, whether the national government should mandate schooling at the state or local levels, and how best to defuse religious strife.”
Amici urge the court to affirm the decision of the lower court, the Eighth Circuit Court of Appeals, which ruled against Trinity Lutheran Church of Columbia. Joining Professor Green are Professors Ronald B. Flowers and John F. Weatherly of Texas Christian University; Professors Sarah Barringer Gordon and Arlin M. Adams of University of Pennsylvania; Professor Fred H. Paulus, Willamette University; Mark D. McGarvie, a visiting scholar with the Institute for the Bill of Rights at Marshall-Wythe School of Law, College of William and Mary; Professor and Walter H. Stowers Chair in Law and Religion Frank S. Ravitch of Michigan State University College of Law; Professor David Sehat, with Georgia State University; Professors Laura S. Underkuffler and J. Forest White with Cornell Law School; and Professor and Faculty Fellow Laurence H. Winer with Arizona State University.
Read the full amicus brief.
About Steven K. Green
Steven K. Green is the Fred H. Paulus Professor of Law and director of the Center for Religion, Law & Democracy at Willamette University College of Law, where he teaches courses in constitutional law, the First Amendment, legal history, jurisprudence, and criminal law. Green has significant legislative experience, having testified before Congress and several state legislatures. He helped draft federal and state laws affecting religious liberty interests, including the Religious Freedom Restoration Act (1993), the Religious Land-Use and Institutionalized Persons Protection Act (2000), and the Oregon Workplace Religious Freedom Act (2009). He is a widely sought speaker at national conferences and a prolific author whose writings have been cited by the U.S. Supreme Court and lower courts. Green’s most recent book is Inventing a Christian America: The Myth of the Religious Founding (Oxford University Press, 2015).
About Willamette University College of Law
Opened in 1883, Willamette University College of Law is the first law school in the Pacific Northwest. The college has a long tradition at the forefront of legal education and is committed to the advancement of knowledge through excellent teaching, scholarship, mentoring and experience. Leading faculty, thriving externship and clinical law programs, ample practical skills courses, and a proactive career placement office prepare Willamette law students for today's legal job market. According to statistics compiled by the American Bar Association, Willamette ranks first in the Pacific Northwest for job placement for full-time, long-term, JD-preferred/JD-required jobs for the class of 2014 and first in Oregon for the classes of 2012, 2013 and 2014. Located across the street from the state capitol complex and the Oregon Supreme Court in downtown Salem, the college specializes in law and government, law and business, and dispute resolution.