Bridget Wants A Bible Club (Westside Community Schools v. Mergens, 1990 – Part One)

Background

In Widmar v. Vincent (1981), the Supreme Court determined that when the University of Missouri (Kansas City) made its facilities available to extra-curricular groups outside of normal school hours, it created a “limited open forum.” If religious student organizations wished to use the facilities on the same terms as other groups, they must be allowed to do so. Not only was this NOT a violation of the Establishment Clause (as the University had feared), but denying equal access was a form of inhibiting students’ “free exercise” of religion. Justice Lewis Powell, writing for the majority in Widmar, explained it this way:

The question is not whether the creation of a religious forum would violate the Establishment Clause. The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech. In this context, we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion… 

It is possible – perhaps even foreseeable – that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization’s enjoyment of merely “incidental” benefits does not violate the prohibition against the “primary advancement” of religion…  

A few years later, the U.S. Congress – no doubt hoping to seize the moment – passed the Equal Access Act of 1984. It essentially took the standard expressed in Widmar and applied it to public schools. Any district which prevented students from having meetings or forming clubs on the basis of the “religious, political, philosophical, or other content of the speech at such meetings” would lose federal funding and receive a very nasty glare from D.C. 

The Legislature had been frustrated in their previous efforts to work around or overturn the Court’s “anti-prayer” and “anti-Bible” decisions in Engel v. Vitale (1962) and Abington v. Schempp (1963), and despite his general popularity, President Reagan had made little progress on his promised Amendment to put the government back in charge of teaching kids what they should believe about Jesus. (OK, that’s not entirely fair. Reagan wanted an Amendment to leave it up to each state how to teach students about Jesus.)

The Equal Access Act included surprisingly practical guidelines. It distinguished between curricular organizations and those unrelated to specific coursework. Meetings had to be student-driven and not facades for outside groups coming in to run things. Perhaps most significantly, they had to be entirely voluntary and outside classroom hours. Before school was fine, lunch was fine, after school was fine – any time other clubs or groups could meet. Faculty “advisors” could attend (there are liability issues when minors are left to their own devices for extended periods of time) but not participate and certainly not lead.

All in all, it was a rather reasonable piece of legislation. That alone makes it something of a novelty in terms of Congress and public education.

Bridget Wants A Bible Study

Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school. They’d read and discuss the Bible, pray together, and enjoy what those on the inside call “fellowship.” Membership would be open to anyone, however, regardless of their beliefs – because, you know… school.  

Bridget suggested they skip the required “faculty sponsor” part. (Presumably she was under the impression this might improve her chance for approval.) The principle said no. She went to the Associate Superintendent, who turned her down as well. Their initial argument (inferred from the court’s response) seems to have been that there could be no clubs without a sponsor, and that this club couldn’t have a faculty sponsor because it would violate the Establishment Clause. Bridget, being a persistent little thing (Luke 18:1-5), took her case to the School Board, which backed school administration.

This was stranger than it may at first seem, given several factors. One, this was Nebraska – a perennial “red state.” Two, this was happening in 1985, a mere year after the passage of the Equal Access Act – big news all across the country, and of particular interest to school officials who, as a general rule, don’t like being sued. Three, there’s no way to read the act as suggesting that religious clubs can’t have teacher sponsors – merely that they can’t participate in the actual discussions or activities. If administration actually played that angle (as the record suggests), it was nonsense… and they should have known it was nonsense.

So why would the district fight this particular request so vigorously? That’s part of what made (and makes) this particular issue so interesting.

Let’s Start A “Contemporary Legal Issues” Club 

Mergens, with the support of a few friends and parents, filed suit in their district court. They argued that in addition to violating the Equal Access Act, the school was denying them their freedom of speech, association, and religion as guaranteed in the First Amendment (applied to the states via the Fourteenth). The district clearly had dozens of non-curricular clubs – including Chess Club, Rotary Club, a Scuba Diving Club (naturally very big in, um… Omaha), Photography Club, National Honor Society, Future Business Leaders of America, etc.

The district’s defense was innovative, and perhaps even sincere. All thirty or so of the clubs already established at Westside, they argued, were, in fact, curriculum-related. And since there were no extra-curricular clubs meeting on school property, the Equal Access Act did not apply. The Act assumed a “limited public forum” – and Westside hadn’t created one, legally speaking.

Rotary club? That was an extension of citizenship and public service, important school values and an essential part of each social studies course. Chess club? That was math and science and problem-solving, actual standards in several courses. Photography? Obviously a voluntary extension of art class. And scuba diving? Dude, physical education is a legit course – don’t write it off so easily. But this “Bible Club”? This was different. This was “extra-curricular.” Unlike Scuba Club.

As a backup, they asserted that even if the Equal Access Act did apply, it was unconstitutional – so it didn’t matter.

The district court accepted this reasoning and rejected Mergens’ claims. The case was appealed to the 8th U.S. Circuit Court of Appeals who reversed that decision and found in favor of Bridget’s Bible Club. The district – oddly tenacious, it seemed – appealed to the Supreme Court, which agreed to hear the case in 1990.

If You Give A Mouse A Bible Club…

The most likely explanation for Westside’s stubbornness had nothing to do with opposition to the kids’ faith. There’s at least one reference in court records suggesting that Westside’s principle encouraged the club to meet in the church next door to the school. The Court’s majority opinion mentioned that “the school apparently permits {students} to meet informally after school,” suggesting that at some point the school agreed not to chase them out of the building as long as they didn’t call themselves an official school club. This still meant being ignored in official club listings and left out of announcements, but it hardly evinced a hostility towards the general idea of kids getting together to study the Bible and pray.

On the other hand, what would be the implications of this “limited public forum” described in the Equal Access Act if the club were officially permitted? None of the existing clubs were particularly “issue-driven” or controversial. The school wasn’t wrong that they largely promoted existing school values and the usual “be a good citizen” stuff.

If the Protestants could have a club, however, then by law so could the Catholics. Next could come other faiths or issue-driven groups. Young Republicans. Young Democrats. Wiccans. Gay students. Black students. Atheists. Pro-life clubs. Pro-choice clubs. Oh god, Dungeons & Dragons could stage a comeback!

While the community would probably have been fine with students voluntarily meeting after school to read the Bible and pray, it’s not much of a stretch to imagine some would have been less-thrilled at the idea of their tax dollars supporting (in their minds) the Gay-Straight Alliance or Black Lives Matter (neither existed yet under those names, but the ideas were certainly nascent). Would the school approve Anarchy Club? Sodomites 4 Satan? MSNBC watch parties? At some point they’d reject a group based on its content and quite possibly be sued. At that point, all bets were off as to the fallout. Better to heed the advice of noted American philosopher Barney Fife: “Nip it, nip it, nip it in the BUD!”

In other words, it seems unlikely that the district fought against Bible Club because they didn’t understand the legal implications. More likely, they fought against it because they did.

NOTE: This post is an excerpt from “Have To” History: A Wall Of Education

Part Two: The Decision

“In God We Trust” (Or Else)

Team JesusThere are certainly plenty of wonderful individual people of faith around, including many Christians.

I feel obligated to open with this acknowledgement (disclaimer?) because my next several posts are going to focus on clashes between religious folks and public education which have been in the news recently, and it seems like every time you come across a story about someone asserting their Christian beliefs via legislation or the courts, they’re doing it for one of three reasons: (1) they want more government money for something without having to follow the same rules as everyone else, (2) they want the government to like their religion best and tell everyone about it more often because that’s “freedom of religion,” or (3) they want to be horrible to some group of people everyone else is supposed to be kind to.

All in all, it doesn’t paint a very flattering picture of the group as a whole. Then again, we’ve seen their voting habits, so…  

Texas Demands Empty Proclamations of Faith Without Substance

The Texas State Legislature has passed a bill requiring that any public schools which just happen to end up with one or more “In God We Trust” signs in their possession post them as prominently as possible. (As of this writing, it’s waiting on the Governor’s signature.) Presumably, they’re hoping this will pass constitutional muster thanks to a combination of factors:

  • The signage will be donated, not paid for by state tax dollars.
  • “In God We Trust” is our national motto – a statement of patriotism (supposedly), not religion.
  • The Supreme Court has previously ruled that some religious statements are so drained of meaning as to no longer trigger “wall of separation” issues.

The “national motto” thing is a remnant of our 1950s terror of all things Communist. If spiritual purity and a commitment to capitalism weren’t synonyms before World War II, they certainly became so by the time of color television. The Commies were “godless,” so one way the U.S. could stand tall was to insert things like “under God” into the Pledge of Allegiance and make “In God We Trust” our official national motto. (For those of you unfamiliar with the teachings of Jesus, he was very big on public rituals and governmental gestures of support.)

This conflation of all things red, white, and blue with orthodox Christianity has only intensified since. In the hearts and minds of the controlling (and voting) majority of American faithful, you can’t love Jesus and favor gun control legislation. You can’t take communion and oppose tax breaks for the uber-wealthy. And it’s easier for an elephant to go through restorative justice training than for a Black man to have equal rights in the eyes of the law because look they must have been asking for it or they wouldn’t have the mark of Cain to begin with. It’s hardly a coincidence that the same Texas legislature pushing the “In God We Trust” signage passed a law requiring sports teams to play the National Anthem before every game.  

From FoxNews.com:

Texas Lt. Gov. Dan Patrick was a staunch advocate for the bill, dubbed the “Star Spangled Banner Protection Act.” The measure was first introduced in February after the Dallas Mavericks briefly stopped playing the national anthem before their home games.

“Texans are tired of sports teams that pander, insulting our national anthem and the men and women who died fighting for our flag,” Patrick said in a statement in April. “The passage of SB 4 will ensure Texans can count on hearing the Star Spangled Banner at major sports events throughout the state that are played in venues that taxpayers support. We must always remember that America is the land of the free and the home of the brave.”

Hell Or TexasNotice the title – the “Star Spangled Banner Protection Act.” Because patriotism, like faith, apparently can’t survive without government propping it up by force. Note also the claim that American soldiers fight and die “for our flag.” Not our values, not our Constitution, and certainly not our people – for the cloth and the symbols and the rituals.

I won’t even try to make sense of mandating adherence to a ritual in order to remind us we’re the land of the free. Modern GOP “reality” gives me a headache. Instead, back to those godless public schools…

“Ceremonial Deism”  

In 2004, the Supreme Court heard a case involving the “under God” bit added to the Pledge in the 1950s. A non-custodial parent objected to his daughter being exposed to this daily chant of devotion in her local public school. The Court avoided deciding the case on its merits, finding instead that the plaintiff lacked standing to sue (the girl’s mother, who legally had custody, had no objections to the Pledge).
Several concurring opinions, however, indicated that had they addressed the issue itself, the Pledge would have been fine. The best-known was this bit from Justice Sandra Day O’Connor:

Given the values that the Establishment Clause was meant to serve… I believe that government can… acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

In other words, “under God” was no more spiritual than saying “bless you” when someone sneezed or “OMG!” when you see a cool TikTok video. It was purely ceremonial, stripped of substance by repetition and years of historical impotence.

That’s what Texas is going for with their motto requirement – something barely constitutional because it lacks the slightest spiritual or religious meaning in the eyes of the courts or, presumably, the citizenry at large. Otherwise, it would be blatantly unconstitutional.

A Moment Of Pray—Er… Silence

If Jesus Had Only Been Better Armed...The same basic approach was taken by numerous states when passing “moment of silence” legislation. These laws require school announcements each day to include 3-4 seconds of silence (some statutes specify a full minute) during which students can “reflect, meditate, or pray” or some variation thereof. These laws pass constitutional muster because they’re so pointless. Sure, kids can pray – but they don’t have to. Of course, they can also pray silently before the moment of silence, or after it. Kids have never ever EVER in the history of the United States been prohibited from praying silently during the school day, or from praying collectively and out loud on school grounds as long as it’s not in the middle of class. Never.

Legislators tried the same disingenuous strategy with the Ten Commandments as well, but the “HOW IS THAT RELIGIOUS?!?” argument somehow didn’t stick with that one. Opening with “Thou shalt have no other gods before me” kinda gave it away.

So if these moments and postings and such are neutered, meaningless symbols, why do some legislators fight so hard to make them happen?

Conservatives have somehow persuaded a majority of religious voters that these little token victories – the ones that slide past First Amendment concerns specifically because they lack substance – are somehow pushing Jesus back into public schools or securing God’s blessings on America. Mumbling “under God” or posting “In God We Trust” operates as a sort of code phrase, opening a spiritual portal for the Lord Almighty to swoop back in and take His rightful place in the big leather chair in the principal’s office. Statues become woodland creatures again, teenagers stop being interested in sex or any music recorded after 1957, and Common Core was never even invented, let alone mandated by many of these exact same legislators.

(OK, that last one wouldn’t be so bad.)

Let There Be (Gas)Light

Patriotic JesusIn other words, the only reason to pass these laws is because those supporting them believe they ARE statements of faith. They DO matter in distinguishing America’s official religion (which they’re willing to pretend isn’t official in order to secure it as such) from all of those other belief systems (which have no place in public schools because of the First Amendment).

Religious legislators have learned to go through the motions of manufacturing pseudo-secular reasons for these theological breaches. They assert that a “moment of silence” rewrites the chemistry of the teenage brain each morning or that the Ten Commandments are purely historical context for the U.S. Constitution (despite the two having not so much as a single line in common). The trick is to do this while still celebrating the banishment of the White Witch from Narnia with their constituents, who believe their nation is so great and their God so powerful that neither can survive without such gestures.

Legislators aren’t the only ones perfectly aware of the power of these little religious “victories.” They’re a reminder to anyone outside the cell group that they don’t belong. You atheists, Buddhists, Hindus, or Muslims, along with you LGBTQ+ teens and anyone else who isn’t showing proper deference to state-mandated religious and patriotic rituals – you can stay for now, but you are outsiders. You. Don’t. Count. And honestly, you’re ruining everything for the good people – the ones who believe and do the right things, in unison, whenever we’re told.

If you think I’m overstating it, go visit another country for a few years where the dominant culture is different than yours and send your kids to school there. Or just ask one of those gay or atheist types you don’t let your kids hang out with. Maybe they’ll try to explain it.

The Governor has about ten days from the time a bill is presented to either sign or veto it in Texas. You’ll know if it becomes law because you’ll hear a cock crow three times.

Jesus Texas Tacos

The Interstate Commerce Act & The ICC (from “Have To” History)

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About… the Interstate Commerce Act & the Interstate Commerce Commission

Three Big Things:

1. After several states attempted to limit the power of railroads and grain storage facilities on behalf of farmers and other citizens, Congress passed the Interstate Commerce Act (1887). This established the Interstate Commerce Commission (ICC) to regulate railroads, including their shipping rates and route choices.  

2. The ICC was the first federal regulatory agency; it’s “success” spawned hundreds of others in subsequent decades. When you hear people complain about “big government,” these are a big part of what they mean. At the same time, they remind us that economic systems are not natural rights; they’re practical mechanisms designed to serve the largest number of people in the most efficient ways possible – at least in theory.

3. Ideally, regulatory agencies attempt to balance the good of society and the general public with the rights of companies to make reasonable profits from providing useful goods and services. They oversee “public services” – things considered essential for most citizens but which don’t easily lend themselves to a competitive marketplace due to the infrastructure required or the necessary scale of the service.

Context

The second half of the nineteenth century was one of America’s greatest (and most controversial) eras of expansion. Rugged, individualistic homesteaders navigated bureaucracy and accepted government oversight to secure their own plots of government-sponsored land in the west, where the government was hard at work clearing out the local populace on their behalf. Railroads, arguably the most poignant symbol of progress in all of Americana, were bravely, capitalistically accepting massive government land grants in exchange for laying their tracks across the Great Plains and finally connecting one coast with another. Along the way they manipulated local townships into catering to their every fiscal whim, lest they destroy them by altering course and instead bestow their blessings on communities more willing to kiss their caboose.

For railroads, more miles of track, continued national expansion, and the vast quantities of crops farmers were shipping further and further from where they were grown meant increased profits and political influence. For farmers, on the other hand, more land, technological advances, and increased production meant lower prices, endless struggles, and increased debt just to stay in the game. Eventually, traditionally individualistic farmers began forming collectives – the Grange, the Farmers’ Alliance, etc. – and pressuring their state and local governments to balance the scales a bit. They weren’t looking for handouts, just some restraints on what they saw as unchecked corporate power and greed. It wasn’t long before other segments of society began adding their voices in support.

Regulating For The Public Good

In Munn v. Illinois (1877), the Supreme Court determined that it was perfectly constitutional for a state to regulate industries within its borders, including capping the amounts grain elevators and storage warehouses were allowed to charge for their services. As the Court explained,

When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. “A body politic,” as aptly defined in the preamble of the Constitution of Massachusetts, “is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”

This does not confer power upon the whole people to control rights which are purely and exclusively private… but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government.

In other words, capitalism is all very fine and well, and the individual’s (or even the corporation’s) right to property and profit is important – but only because this economic approach presumably serves a larger good. The U.S. doesn’t practice a form of free market economics because it’s holy and just to do so – it’s a pragmatic decision based on the perceived shortcomings of alternative economic systems in comparison. (To paraphrase Winston Churchill, “Capitalism is the worst economic system except for all those other forms that have been tried from time to time.”)

Munn marked as well as anything the birth of the idea that governments can and should regulate industries deemed essential to the general welfare. At the time, that primarily meant stuff related to farming and the distribution of crops, but it would eventually encompass any number of public “utilities” (electricity, water, gas, etc.) as well as some transportation systems, television and radio broadcasting, and even trash pickup.

Many would argue that as society and technology continue to evolve, the same sorts of regulation should apply to internet access, cell phone plans, and even health care and other medical services. While it’s usually pretty easy to find a new burger joint if the one you liked before starts skimping on fries or changes their menu, it’s harder to change gas companies. The local sewer service rarely competes for your business, and only a small percentage of American homeowners get to actually choose who provides their electricity – let alone at what rate. Anytime laissez-faire capitalism would result in an “essential” service being reserved for the elite few, government steps in and makes everyone play nice. Companies providing valuable services deserve to make a reasonable profit, but not at the cost of the larger social good – or so the reasoning goes.

In the late nineteenth century, however, it was primarily grain storage and railroad rates.

The Commerce Clause Wins Again  

Not quite a decade after Munn, the Court revised its opinion while pretending it was simply picking up where it left off. Wabash, St. Louis and Pacific Railway Company v. Illinois (1886) clarified that while states had the right to regulate industries within their borders, that power didn’t extend beyond state lines. Just because a railroad route began in Chicago, that didn’t mean the Illinois legislature could dictate shipping rates or other policies as it choo-choo-ed through Iowa or Missouri. This was “interstate commerce” in the truest sense of the term, making it the exclusive province of Congress – whether they chose to act on it or not.

Congress finally took the hint and created the very first federal “regulatory agency” – the Interstate Commerce Commission – in 1887. The ICC was charged with overseeing railroads and shipping of all sorts, and set strict guidelines for how the railroads could do business. Rates had to be the same for short trips as for long, and for all customers, however much or little they shipped. Railroads couldn’t even offer special packages for “preferred destinations.”

The specific rules weren’t the important part, however. These were modified or eliminated as technology, transportation, and society evolved. The important thing was the idea that government could and should set limits on important industries for the good of society. In practice, this usually means federal government. It’s nearly impossible today to find a good or service functioning purely “intrastate.” States can sometimes add to regulations while the good or service is withing their purview, but not beyond.

Over the next century, hundreds of federal agencies would be created in the image of the ICC. While Congress still established guidelines and priorities, agency directors and bureaucrats were left with the detail work – writing the actual rules and at times even taking part in enforcement. When you hear people complain about the unending nightmare of red tape, small print, and regulatory burdens on pretty much everything, this is what they mean. The positive side is that the meat you bought at the store today is probably not rotten and your kids’ clothes probably won’t burst into flames anytime the sun is too bright. The negative side is that unchecked bureaucracy tends to grow like the demonic kudzu and has proven nearly impossible to restrain, let alone prune back. No one can even agree on how many federal regulatory agencies there are, let alone which ones are necessary or what at each of them is actually in charge of.

The ICC was dissolved in 1995 after most of its regulatory power had been reduced or stripped away. Its few remaining functions were transferred to yet another agency – the “Surface Transportation Board” (as opposed to all those other sorts of transportation) which operates under the “U.S. Department of Transportation.” The Secretary of Transportation, in turn, reports directly to the President.

How Do I Remember This? (And Why It Matters)

Much of American history can be viewed as an ongoing struggle between freedom and security – nationally, locally, legally, socially, and – as in this case – economically. Just like in school, too little freedom stifles innovation and productivity; too much freedom leads to chaos, abuse, and a breakdown of the system.

The Interstate Commerce Act and ICC were the federal government’s first major effort to restrict what big business could and couldn’t do in an effort to ensure the results served everyone, not just those already at the top of the economic ladder. The resulting arguments would sound surprisingly familiar nearly a century-and-a-half later. Is it better to let big business run free or rein it in from time to time? Is government better or worse than raw capitalism at meeting the needs of the people as a whole over time? Do the basic rights guaranteed to American citizens as individuals apply to corporations as well?

If the answer to any of these questions seems obvious or easy, you’re doing it wrong.

The ICC, while no longer with us, remains the granddaddy of all federal bureaucracy and regulation. From the “alphabet agencies” of the New Deal to the half-dozen different agencies which today dictate the minutia of salmon treatment, processing, costs, transportation, and preparation long before you squeeze lemon on it at your local chain restaurant – they can all be traced back to the Interstate Commerce Commission… for better or worse.

What You’re Most Likely To Be Asked

It’s unlikely you’ll be asked to recognize or analyze the language of the Interstate Commerce Act itself (it’s not that readable). Instead, make sure you understand its connection to pretty much everything else going on at the time. It’s also a nice precursor to discussing populism (the late 19th century version) or even the Progressive movements of the early 20th century. They were all about using government to balance the power of big business against the needs of the “common man.”

In APUSH, Period 6 (1865-1898) is packed with standards related to economic development and industrial growth. The rest mostly involve westward expansion and the farmers movement (“populism”). The ICC is about both, particularly in relation to one another. Knowing the basics will help you add relevant details for any prompt related to government regulation, important Supreme Court decisions of the nineteenth century, or early efforts by farmers to push back against big businesses. It should always be mentioned when speaking or writing about railroads in this period as well. It may not be the single most important thing from this half-century, but it connects to almost everything else happening at the time – and that makes it mighty useful for making yourself look knowledgeable. (KC-6.1.III, KC-6.3, KC-6.3.II, and others)

Utah’s Core Social Studies Standards pose a question many teachers love asking in some form:

How could industrial leaders be considered both “captains of industry” and “robber barons”?  (U.S. II Strand I – Industrialization)

It’s a topic typically addressed while covering the Gilded Age (closer to the start of the twentieth century), but it’s a great chance to reference events associated with the creation of the ICC. Railroads were essential to American growth and progress, as were grain storage facilities, banks, and other “wicked witch” industries of the late nineteenth century. At the same time, they tended to exploit and discard anyone non-essential to their continued growth and power. It was capitalism at its most dichotomous (the whole point of the question).  

If you’re not feeling that bold, chances are good you’ll be asked something along the lines of this substandard from Utah. Some variation of this is present in over half of all state social studies standards:

Students will assess how innovations in transportation, science, agriculture, manufacturing, technology, communication, and marketing transformed America in the 19th and early 20th centuries. (U.S. II Standard 1.1)

At the very least you should recognize the ICC as the first federal regulatory agency and railroads as the first federally regulated industry.

Bonus Points: How To Sound Like You Know More Than You Do

Congress’s authority to regulate interstate commerce is found in Article I, Section 8 of the U.S. Constitution. As a practical matter, this means that Congress can regulate almost anything by tying it in some way to interstate commerce – a power confirmed by the Supreme Court a half-century before in one of those “must know” cases, Gibbons v. Ogden (1824). Combined with the “Necessary and Proper Clause” (also in Article I, Section 8; confirmed by McCulloch v. Maryland, 1819), Congress and its regulatory power became virtually unchallengeable. Throw in details like what’s covered above, then thoughtfully note that this same basic tension – big government vs. small, the Hamiltonian approach vs. the Jeffersonian approach, etc. – is still a fundamental source of conflict between the two major parties today. (You’ll have literally covered the entire range of American history in a single observation.)

If your teacher seems to lean a bit conservative (they gripe about “those people” or refer to the Civil War as “the war of Northern Aggression,” etc.), you might ingratiate yourself by referring to the current web of federal regulations (which started with the ICC) as “Kafkaesque.” Kafka was a novelist who specialized in the bizarre, especially when it involved protagonists overwhelmed by systems or powers beyond their understanding or control but forced to go along with them anyway. Remember the guy who wakes up as a giant cockroach one day and we never find out why? That was his. “Kafkaesque” is a nice literary touch and should tingle their little conservative hearts without actually committing you to any particular worldview.

Above all else, avoid taking easy positions on the “good” or “bad” of railroads, regulation, farmers’ demands, or even the ICC itself. Always reference specifics while nevertheless acknowledging the inherent complexity and the valid claims of both (or all) sides – freedom, competition, and capitalism on one side and a reasonable opportunity for individuals to succeed (or at least survive) on the other. That’s what makes it interesting – the lack of easy answers.

What’s In A Blaine?

I’ve written about the Blaine Amendment before in the context of Oklahoma GOP shenanigans a few years back. This time around, I’m looking to go a bit ‘bigger picture’ and give it a brief chapter in “It Followed Her To School One Day,” which might actually be finished before summer. Below is the first draft of that chapter.

The final product will be tighter (this one’s too long) and less ranty-ravee about things.While I’m not going for detached and boring in the book, I will shoot for something a bit more balanced and accessible to the average reader. This is not an ethical decision so much as capitalistic lust. I mean, let’s be honest – conservative dollars spend the same as liberal dollars, and they have WAY more of them, so no sense alientating them right out of the gate. Keep it subtle, so they can be offended and horrified after it’s too late to return it.

Here with you, however, my Eleven Faithful Followers, I can share my unfiltered wisdom with spices and color intact. 

What’s In A Blaine?

Blaine GatorsWhile it was not always mentioned by name, several major decisions of the Court in the early 21st century very much involved the history and potential future of the “Blaine Amendment.” Blaine is a general label applied to various provisions in 37 different state constitutions limiting or prohibiting the use of state funds to support religious organizations or sectarian activity. The precise wording and application vary from state to state, and 13 states don’t have one at all. Most Blaine Amendments are actually sections or clauses in their respective state constitutions and not “amendments” at all, but the term has proven persistent. Plus, it’s used in the singular (collectively) or plural more or less interchangeably – so that’s kinda fun.

The term dates back to Representative James Blaine of Maine, who pushed for a national amendment along those lines during the presidency of Ulysses S. Grant. The movement failed at the federal level, but the idea was picked up by numerous states in subsequent years – some voluntarily, and some as a requirement for entering the Union as the nation continued to expand. While innocuous enough as written, these various Blaine Amendments have something of a rocky historical past. “Non-sectarian” in the 19th century was often used euphemistically to promote anti-Catholic bias. (If Protestant was normal and proper, then “sectarian” was by implication any deviation from that – with emphasis on “deviant.”)

To be fair, it wasn’t just Catholics who were suspect. Your average 19th century WASP didn’t think much of anyone or anything not brazenly Protestant, at least in form and rhetoric. Catholics, however, were a particularly prominent and successful example of dangerous foreign influences and cultish ideologies trying to strip “real Americans” of their only-recently-established eternal birthrights to the continent. They were in many ways the Muslims of their era – technically entitled to their beliefs, and most wanting the same basic things for their homes and families as everyone else, but still viewed with suspicion because obviously their religion meant their loyalties must truly lay elsewhere, far across the globe in places most Americans still can’t locate on maps. (Nor should they have to, given that anything not in America is by definition un-American and besides-who-prays-to-dead-people-that’s-so-weird-am-I-right?!?)

Needless to say, American Catholics were relieved when a generation or two later the nation realized the true enemies of freedom were immigrants, labor unions, and women who wanted to vote.

In any case, there’s history suggesting that these Blaine Amendments weren’t always so much about keeping schools secular as keeping them vaguely Protestant. Variations on the idea date back to the anti-immigrant, anti-Catholic Know-Nothing Party of the 1840s and 1850s.

Make America Know-Nothing Again

Know Nothing FlagThe Know-Nothings, who actually called themselves “The American Party,” were the MAGA of their day – slogan driven, easily triggered, and fiercely patriotic (as long as the nation they perpetually celebrated prioritized those who looked and thought as they did). They didn’t have a “dark web” or the chance to go giddy over secret Q-Anon symbols encoded in the evening news, but they did their best to be melodramatic nonetheless. When asked about their political druthers or anything related to the party itself, members were expected to go full Sgt. Schultz and claim to “know nothing” – hence the nickname.

The true irony of this self-inflicted moniker was, of course, entirely lost on them.  

The Know-Nothings as a political party vanished after the Civil War, but their toxic sentiments, like the smell of desperation and last night’s cigarettes, proved difficult to wash out of Uncle Sam’s sparkly coat. One of these sentiments was the desire to “protect” public schools (relatively new entities, even in the late 19th century) from pagans, atheists, “Muhammadans,” and of course, Catholics.

There was no federal Department of Education at the time, and state-level governments weren’t always overly concerned with how local districts were run. It wasn’t unusual for students to be required to read from the King James Bible, sing hymns, or pray, and teachers often taught through the lens of Protestant doctrine. Not surprisingly, Catholic Americans didn’t love paying taxes to support public schools that openly reviled their faith and forced their children to perform Protestant rituals. Some began pushing for equitable state support for Catholic-flavored schools as well – an idea Protestants found horrifying. What a vile betrayal of our freedom of religion! The First Amendment was supposed to build a wall protecting us from stuff like this!

Thus, the Blaine Amendments – at least in some cases. In others, history suggests a genuine effort to balance the roles of church and state to the benefit of society as a whole. That’s the trick with politics and history. People (especially politicians) claim all sorts of motivations for things, both good and bad, and there are often a combination of sentiments and goals all mushed together in any slice of legislation or political rhetoric. Sometimes later generations can tease out the underlying motivations with confidence (the Eleventh Amendment, the Oklahoma Land Run); other times historians are left to grapple with conflicting information and informed speculation in their efforts to address hows and whys (the Salem Witchcraft Trials, the endurance of “Deadliest Catch”).  

A century and some change later, most Americans’ opinions of the Blaine Amendment have little to do with its origins and more to do with their personal religious druthers and the extent to which they feel persecuted and downtrodden by the presence of other belief systems in the society around them. Nevertheless, the origins of these state provisions have become a primary focus of those wishing to overturn it. The argument is that these Blaine Amendments are expressions of religious bias and discrimination, something Protestants in this country have generally favored but must now modify based on shifting dynamics and a shared cause – “the enemy of my enemy is still a heretic, but whatever.”

Historical Motivations

The Supreme Court has not always been consistent when it comes to factoring in historical contexts. In its defense, as discussed above, it’s sometimes difficult to unravel the motivations or intentions behind legislation or specific constitutional verbiage. The Second Amendment, for example, was clearly written with the assumption there would be no standing army in the United States and that local militias were thus essential to “provide for the common defense.” The amendment has nevertheless entrenched itself in the American psyche and longstanding jurisprudence far beyond its original purpose. Whatever else might have been intended, it certainly never came anywhere close to “individuals should be allowed a reasonable variety of weapons for personal protection or hunting but nothing designed primarily to fight in wars like, say, a militia might use.” And yet, over time, the meaning has been allowed to evolve based on changing times. Lawyers and judges still shamelessly wrestle with each word and tortured comma as if they don’t know perfectly well what an incoherent mess it is. The text and practical application has become the priority; the history of the amendment is now merely a curiosity.

Trump Statue of LibertyMore recently, in 2018, the Supreme Court upheld then-President Trump’s “Muslim Ban” on travel from a half-dozen countries. Trump had promised a “Muslim Ban,” his agents fought for a “Muslim Ban,” and his supporters celebrated the proclamation of a “Muslim Ban” because it was about time we started banning those Muslims with a Muslim Ban that bans them darned Muslims! After backlash from the courts, however, the administration managed to tweak the language enough that it could conceivably be viewed by someone who’d missed all the kerfuffle as a valid national security measure that only coincidentally sorta looked a great deal like a Muslim Ban. (It probably helped that they crossed out the title “Muslim Ban” at the top and scribbled “Valid National Security Measure” in orange crayon.) It was this “Huh? A ‘Muslim Ban’? Who told you THAT?” version the Supreme Court chose to validate, treating the act’s obvious intent and recent history like mysteries lost to the ages and certainly of no relevance to this shiny new valid security measure before them.

Other times, however, the motivation behind a law or government action suddenly matters, at least to interested parties. In cases involving holiday displays, moments of silence, or public installments of the Ten Commandments, the Court generally weighs the context and history of the legislation or decision-making and considers intent along with the actual text or result. The infamous “Lemon Test” begins by examining the purpose of a governmental action. The updated “endorsement test” first expressed by Justice Sandra Day O’Connor asks what a reasonable observer would perceive as the intentions of the government in a given situation – again bringing backstory into the foreground. In short, sometimes the history matters. (That’s why politicians have become so adept at signaling supporters as to what they’re really trying to accomplish with a particular piece of legislation while coating their official rhetoric in slippery nonsense; they don’t want their own words and true goals to be used to overturn pet projects.)

Despite the obvious benefits of this approach, it can be tricky business. As Justice Rehnquist expressed in his dissent in Stone v. Graham (1980), when enough legislators and constituents support something they believe has legitimate value and meets constitutional guidelines, it’s presumptuous for any court to step in years later and impugn their motivations in order to invalidate their choice

In other words, if something’s unconstitutional in its text and application, that’s one thing, but if it’s only unconstitutional because the courts know what people in the past were really up to, well… that’s potentially a bit more complicated. Which brings us back to the Blaine Amendment. Amendments. Whatever.

The dominant majority of WASP Americans in the late-19th century were certainly distrustful of Catholics (and Jews, and Chinese, and Freedmen, and transcendentalists, and DC Comics movie adaptations, and GMOs, and immunizations, and… you get the idea). It’s not universally clear that Blaine Amendments were solely the product of this bias, and states retained substantial wiggle room when it came to spending state funds on state interests through the end of the 20th century– with or without Blaine in the discussion. It was substantially weakened, however, by Zelman v. Simmons-Harris (2002), a landmark voucher case in which the Court determined that vouchers could be used at religious schools whether the state wanted them to or not. It seemed to be holding its own in Locke v. Davey (2004), however, when the court decided that the state of Washington was not violating the Free Exercise Clause by excluding theology majors from a state scholarship program.

Room For Playgrounds In The Joints

Only Mostly DeadThen, in 2017, a particularly conservative Court decided that the whole “wall of separation” thing was overblown. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court ruled that if the state was going to offer ANY public institutions financial support – in this case, new bouncy rubber “gravel” for their playgrounds – it had to include religious institutions in the mix no matter what the state constitution might say or the original program intend. Hence Trinity Lutheran, an overtly religious institution which proudly proclaimed that everything it did and every facility under its control was there to bring little children to Jesus, would receive the same check directly out of state funds as the public school playground down the street which was just there so kids had a safe place to play – or perhaps instead of it. Blaine was now clearly on life support but still taking up bed space.

In Espinoza v. Montana (2020), the Court danced about on Blaine’s grave and urinated on its tombstone – despite never quite declaring it dead. This was another “school choice” case in which the majority determined that states had no right to exclude religious schools with overtly religious missions from programs paid for with public tax dollars. While religious schools were “churches” for purposes of shielding them from most forms of government oversight, they were suddenly “schools” again when it was time for checks to go out, as long as some veneer of “parent choice” was involved in the mix. In Montana’s case, the mechanism was a “scholarship program” in which donors could contribute to “scholarship funds” in exchange for tax credits. The organizations running the “scholarships” would then award them to families to use at private schools of their choice.  

Unlike in Zelman v. Simmons-Harris, there was little discussion in the Court’s opinion regarding mechanisms for ensuring funds were equitable – that is, that they actually covered most of the cost of tuition at the private school where they were applied, making it possible for families of limited means to participate alongside those for whom the “scholarship” was simply a nice bonus. The Court expressed little concern with whether or not the institutions in question were focused on providing a quality education across the curriculum or simply promoting their own religious dogma, suggesting that it wasn’t really their place to distinguish between schools that happened to be religious and religious institutions that happened to call themselves schools. The roundabout “scholarships” and “tax credits” system was sufficient to eliminate the need for state oversight of such things in the name of the Establishment Clause, while the Free Exercise Clause meant any effort to limit the use of public funds based on religious status was outright verboten.

The state could either indirectly support everyone who wanted to play, whatever the actual results or applications of the funds, or cancel the program altogether.

And yes, this time the Court called out Blaine by name as it yanked out the IV and held the pillow over its face. It stopped short of declaring Blaine irrevocably deceased, but… let’s just say things aren’t looking too good overall for the whole “church-state separation” thing. Whether that’s a positive or a negative depends on how much you actually paid attention in history class.

RELATED POST – Worth A Look: Locke v. Davey (2004)

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One Nation Mumbles God (Is the Pledge Constitutional?)

You’ve probably heard that I’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases because I mention it every chance I get and won’t talk about anything else so why aren’t more of you buying my book do you hate truth and America? Along the way, I’m posting rough drafts and ramblings that may or may not make it into the final version (working title: “It Followed Her To School One Day…”)

The following is a case that started off as a one-page insert but keeps trying to grow beyond its word count. We’ll see how that goes.

FOLLOW UP: The “final” version of this post (the one that ended up in the book) can be found here.

One Nation Mumbles God

Worth A Look: Elk Grove Unified School District v. Newdow (2004)

The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national significance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which we have avoided passing upon a large part of all the constitutional questions pressed upon us for decision… Always we must balance the heavy obligation to exercise jurisdiction…  against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary…

Consistent with these principles… {a} plaintiff must show that the conduct of which he complains has caused him to suffer an “injury in fact” that a favorable judgment will redress… Without such limitations… the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights…

Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.

(from the majority opinion by Justice John Paul Stevens – internal quotes and citations omitted for clarity)

The Court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling. On the merits, I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words “under God,” does not violate the Establishment Clause of the First Amendment…

Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.

(from the opinion of Chief Justice William Rehnquist, concurring in the judgement)

There are no de minimis violations of the Constitution — no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can… acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as The Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). 

These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.

(from the opinion of Justice Sandra Day O’Connor, concurring in the judgement)

Adherence to Lee {v. Weisman (1992) and other precedents established by this Court} would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day…

I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional. I believe, however, that Lee was wrongly decided. Lee depended on a notion of “coercion” that… has no basis in law or reason…

(from the opinion of Justice Clarence Thomas, concurring in the judgement)

Elk Grove v. Newdow involved an issue the Supreme Court has otherwise tried very hard to avoid: the inclusion of “under God” in the Pledge of Allegiance, at least in terms of its mandatory recitation in classrooms across the nation every school day. The Court had determined in West Virginia v. Barnette (1943) that students could not be required to stand and participate in the Pledge. Far more recently, however, in Lee v. Weisman (1992), the Court found state-sponsored prayer at graduation ceremonies – whether students actively participated or not – to be a violation of the Establishment Clause. By inserting religious dogma, however briefly, into an important educational ritual, the State was coercing students who wished to participate into choosing between silent acquiescence or the potential disruption and embarrassment of some form of overt protest.

Michael Newdow, an eccentric but sincere atheist, was convinced the daily conflation of patriotism with religious belief in his daughter’s elementary school classroom was at least equally inappropriate. He filed suit on behalf of both himself and his daughter, claiming among other things that this was a blatant violation of the Establishment Clause and he didn’t want his child subjected to it any longer.

General, brief references to the Almighty have been a part of innumerable American traditions since long before the First Amendment was an ink spot at the top of James Madison’s parchment. It has thus been difficult at times for the Court to reconcile the proverbial “wall of separation” with a history demonstrating that the authors of the sentiment obviously didn’t mean in everything. Unlike compromises over slavery or state vs. federal power, there’s no evidence the Framers willingly kicked this constitutional can down the road for their scions to sort out. They simply saw no conflict between a reasonable degree of religious acknowledgement in public life while shielding personal faith from the machinery of government.  

As the nation has evolved and the concept of “personal belief system” has expanded a bit beyond what could have been envisioned a few short centuries ago, this particular balance has proven trickier than expected. It doesn’t help that the religious majority hasn’t always shown itself to be overly accommodating or sympathetic to anyone outside the chosen few. Self-identifying as a spiritual “other” has often resulted in personal, professional, or physical harm, making governmental choices about even ceremonial prayers or displays a tad more problematic than a First Lady supporting one hockey team over another or the ceremonial naming of highways.

Supreme Court decisions sometimes have explosive potential, unfortunately. It matters what our government validates or who it marginalizes. Maybe it shouldn’t, but… it does.

The Ninth Circuit Court of Appeals agreed with Newdow and declared the use of the Pledge in public schools unconstitutional. Other federal courts had ruled differently in similar cases, setting up the exact sort of confusion that often prompts the Supremes to take up a subject they might otherwise prefer to circumvent. Once the details were officially before them, the majority found they had a very convenient out – Newdow was not the custodial parent of his daughter. While sharing custody in practice, the girl’s mother was the legal guardian and not thrilled with her daughter suddenly being in the headlines (not by name, but still!) for such a controversial reason. Besides, Mom was a church-goer, as was the daughter, and neither wanted to take this particular stand.

Thus the Court’s “aw, shucks!” opinion in which it somehow spun “no way we’re touching this” into “across the ages of jurisprudential magnanimity it has proven prudent for this hallowed body to shunneth the touching of grand slam breakfast issues such as these eggs with so much as the proverbial ten cubit pole.” In other words, the Court would not rule on the constitutional question involved because a majority was unpersuaded Newdow had standing to bring the complaint in the first place.

Technically, they may have been correct. Realistically, there were doubtless a number of relieved sighs. Maybe even cupcakes.  

Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas concurred with the result, but not the reasoning. Each submitted a separate opinion suggesting that they’d be more than happy to declare a little patriotic Jesus here and there as perfectly acceptable, because… reasons. (With concurrences like that, who needs dissents?)

Despite the attempted pot-stirring by these three justices, the underlying issue remains foggy and unlikely to reach the Supreme Court again anytime soon. It is thus safe to keep stumbling and mumbling your way through the daily Pledge of Uh, Legions before the roughly 3-second “minute of silence.” Apparently this bit of generally unenthusiastic ceremony is constitutionally safe for now.

RELATED POST: “Have To” History (Thou Shalt Not Post…) – Stone v. Graham (1980)

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