Steve Hinnefeld blogs about education. He is based in Indiana, which has funded charters and vouchers, the latter despite a state constitution that bans funding religious schools.

He writes here about the Supreme Court’s Espinoza decision that held that religious schools must be included in state programs that fund private schools (almost all state voucher programs already fund religious schools, in fact, I can’t think of one that does not do so).

Hinnefeld interviewed a legal scholar, who explained how misinformed the Court was:

The majority opinion — and especially concurring opinions by Justices Samuel Alito and Clarence Thomas — framed the decision as a blow against anti-Catholic bias enshrined in state constitutions via 19th century “Blaine amendments.” But that view papers over complex history, said Steven K. Green, a legal scholar at Willamette University and a leading expert on church-state issues.

Green told me it was disappointing that the court, in a highly consequential decision, “relied, to a certain extent, on a shortsighted view of history, not recognizing the nuances behind the development of the no-aid provisions.” Green elaborates on that history in an amicus brief submitted to the court on behalf of several Christian religious organizations that supported Montana’s position.

Blaine amendments get their name from James Blaine, a Maine congressman and senator and U.S. secretary of state in the late 1800s. In 1875, Blaine introduced a constitutional amendment to prohibit federal funding of religious institutions. It failed, but some states adopted similar provisions for state funding.

The late 1800s were a time of rising anti-Catholic and anti-immigrant bias. In Indiana, the nativist Know-Nothing Party gained a large following. But restriction on state funding of religion “predates the Know-Nothings and the Blaine amendment,” Green said. “And it occurred in places where there was not that much religious strife.

“Without a doubt, a lot of people, during the Blaine amendment arguments, certainly raised anti-Catholic rhetoric,” he said, “But that misunderstands the origins and purpose of the no-funding provisions. The nuance is just left out.”

For one thing, 15 of the state Blaine amendments predated Blaine and his proposal. Michigan was the first state to put a ban on state funding for religion in its constitution – in 1835, when Blaine was 5 years old.

Wisconsin followed in 1848 and Indiana in 1851. I’ve read the notes from the Indiana constitutional convention, and there is no anti-Catholic animus there. In Indiana and in other states, the primary concern was to ensure adequate funding for the public schools they were beginning to establish.

Green said the Supreme Court also ignores history when it downplays the importance of keeping church and state separate.

The First Amendment includes two clauses concerning religious freedom: it forbids “the establishment of religion” and bans laws that prohibit “the free exercise” of religion. The framers of the U.S. Constitution, especially Thomas Jefferson and James Madison, were deeply concerned that state support for religion would entangle government with churches: hence the establishment clause and Jefferson’s famous words about “a wall of separation” between church and state.

“The court seems to say the provision on establishing religion has to take a back seat to the free exercise clause,” Green said.

Consequential Court decisions based on misinformation and error should be overturned.