(June 30)

Some Supreme Court opinions are weightier for moral and historical purposes rather than for controlling legal precedent. In a key Supreme Court case upholding a Montana school-choice program, Justice Samuel Alito  — who doesn’t get the credit he deserves for his principled approach to jurisprudence — wrote a concurring opinion of particular moral and historical weight.

First, Alito joined, in full, the main majority opinion written by Chief Justice John Roberts. It held that a state-sanctioned (and indirectly state-financed) scholarship program can be used by families to send their children to faith-based schools as well as ones without any faith affiliation. To deny that option, Roberts wrote, would be to discriminate unconstitutionally against people and institutions of faith in general.

Alito, however, also wrote separately to make his additional points. He explained that the Montana state constitutional amendment at issue, which lower courts had used to invalidate the school-choice program, had its roots in a fiercely anti-Catholic national movement in the 1800s that included major involvement by the Ku Klux Klan.

The Montana amendment and those like it in at least 37 other states were directly modeled after a proposed national constitutional amendment that almost was approved by the U.S. Congress. Called “Blaine amendments” after their powerful congressional sponsor, these state constitutional provisions were adopted in response to a wave of immigration of mostly Catholic refugees from Ireland and elsewhere in Europe.

Sam Alito, when nominated for the Supreme Court — one of the best nominees ever.

As most public schools at the time included daily readings from the King James Bible, embraced by Protestants but not Catholics (or Jews), Catholics who objected to Protestant “indoctrination” set up parochial schools of their own. As anti-Catholic riots swept the country, Catholic schools became particular targets….

This entire anti-Catholic movement, including the Blaine amendments, was morally vile. One need not be Catholic to see that rank bigotry of this sort is objectionable. Yet, that bigotry was at the very heart and root of Blaine amendments such as the Montana provision at issue in this case….

[The full column is here.]


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