The Volokh Conspiracy
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The Case for a Consistent Approach to Government Discrimination on the Basis of Religion
Both right and left decry implicit government discrimination on the basis of religion when it targets groups they sympathize with. But both are all too ready to turn a blind eye in other cases.
One of the points at issue in the debate over Judge Brett Kavanaugh's nomination to the Supreme Court is his history of supporting efforts to get courts to invalidate "Blaine amendments": provisions in many state constitutions that forbid government funding of religious schools. Kavanaugh and other conservatives have long argued that Blaine amendments are unconstitutional because, although their text does not specifically target any one religion, their enactment was motivated by virulent anti-Catholicism in the late nineteenth century. Liberals fear that it will open the door to school choice programs they oppose, and often defend the Blaine Amendments on the basis that they ultimately treat all religious schools alike, despite the invidious motivations of those that enacted them.
Both liberal and conservative positions on the Blaine Amendments are in deep tension with those they have taken in other cases where a seemingly neutral government policy was in fact enacted out of discriminatory hostility towards a particular religious group. As Harvard law professor (and prominent law and religion scholar) Noah Feldman points out in a recent column, liberal defenses of the Blaine Amendments are at odds with their critiques of Donald Trump's travel ban order, which barred nearly all citizens of several Muslim-majority nations from entering the United States:
The original Blaine amendment was proposed in 1875 — to the U.S. Constitution, not the states. It would have applied the federal establishment and free exercise clauses to the states, and it would have said that no "money raised by taxation in any State for the support of public schools … shall ever be under the control of any religious sect … [nor] divided between religious sects or denominations."
The word "sect" in the amendment was understood by all at the time to refer primarily to the Catholic Church….
The Senate debates over the Blaine amendment produced some of the nastiest anti-Catholic invective ever to grace the pages of the Congressional Record….
On the one hand, it could be argued that the prejudice and animus that motivated the Blaine amendments should be irrelevant to their legal effects, because all they did in practice was preserve existing separation of government and religion….
On the other hand, much recent Supreme Court doctrine says that state laws motivated by bias violate the equal protection of the laws. Anti-religious bias has been held to violate the free exercise clause, too. Today my old view [supporting the Blaine Amendments] feels much harder to sustain in the light of how the case law has developed.
Seen through this lens, the Blaine amendments are almost certainly unconstitutional. The Supreme Court hasn't said so, but it also hasn't defended the Blaines. It just pretended that they don't exist, avoiding their legal implications even when it might have seemed relevant.
Kavanaugh might well provide a fifth vote to strike down the Blaine laws. But that isn't the end of the world, legally speaking. In truth, it will be hard for the court's liberals not to join such an opinion, given their own anti-bias jurisprudence, especially in cases like Trump v. Hawaii, the travel ban decision.
Like the Blaine Amendments, the travel ban was, on its face, neutral between religions. But overwhelming evidence—including Donald Trump's own statements—shows that the true motive was religious discrimination: carrying out Trump's notorious campaign promise to institute a "Muslim ban" by excluding citizens of Muslim-majority nations. Most liberals decry the Supreme Court majority's decision to largely turn a blind eye to this discriminatory purpose, even as they advocate a similar approach to the Blaine Amendments. For their part, most conservatives cheered the travel ban ruling, but want courts to strike down the Blaine Amendments.
There is a similar pattern of reactions to the recent Masterpiece Cakeshop decision, in which the Supreme Court ruled against a state effort to force a Colorado baker who objects to gay marriage on religious grounds to prepare a cake for a same-sex wedding celebration. While the anti-discrimination law the state was seeking to enforce is neutral on its face, the justices ruled in favor of the baker because two of the members of the state civil rights commission that considered his case expressed hostility towards his religious beliefs. Despite the striking parallels between the Masterpiece Cakeshop case and the travel ban decision, the same conservative justices who voted in favor of the baker all voted to uphold the travel ban in a ruling issued just a few weeks later. Most conservatives outside the Court took similarly contradictory stances. For their part, most liberal commentators thought the baker deserved to lose, but also condemned the travel ban ruling; though it is important to recognize that liberal Supreme Court justices Stephen Breyer and Elena Kagan took a consistently principled stance in voting for both the baker and the travel ban plaintiffs.
Sadly, both liberals and conservatives are often willing to ignore strong evidence of discriminatory motivation when the policy in question is one they like on other grounds, whether it be restricting immigration or blocking school choice programs that include parochial schools. It would be better if more people followed Noah Feldman's example and took a consistently principled stance and recognized that policies enacted for the purpose of religious discrimination are unconstitutional across the board.
Of course, it is also possible to adopt a consistent view that goes the other way: motivation should be deemed irrelevant, and courts should only consider the text of the law or regulation in question. That approach would go against decades of Supreme Court precedent requiring courts to strike down seemingly neutral policies in cases where evidence shows the true motive was unconstitutional discrimination based on race, ethnicity, religion, and other forbidden classifications.
Worse, ignoring motivation would open the door to extensive discrimination against a wide range of groups. Government officials who seek to punish an unpopular religious minority need only adopt policies targeting some "neutral" characteristic that correlates with membership in the group in question. If you want to discriminate against Muslims, target citizens of Muslim-majority countries (the travel ban). If you want to target Catholics, discriminate against parochial schools at a time when the Catholic Church operates by far the largest network of such institutions (the Blaine Amendment). If the same rule is applied to racial, ethnic, and gender discrimination, the same tactic can be used even more widely. For example, instead of discriminating against African-Americans explicitly, you can target people who live in areas that just happen to have large African-American populations. Such tactics were in fact used in the Jim Crow-era, when policymakers sought to circumvent court decisions forbidding explicit racial discrimination.
Skeptics claim that there is little point to striking down policies with discriminatory motives if the same policies can be enacted by other officials for different reasons. Defenders of the travel ban, for example, often argued that it had to be constitutional if another president could have done the same thing for less objectionable reasons. But such claims overlook the reality that most such policies are unlikely to be adopted in the first place if not for discriminatory purposes. I addressed that argument in greater detail here.
In some cases, the true motive for a policy may be difficult to determine. Not every case is as clear-cut as the travel ban, where the relevant decision was made by one person, and he openly broadcast his bigoted motives to the world over a period of many months. But courts have dealt with the issue of determining motives in many areas of law, including other types of antidiscrimination law. Intentionally killing or injuring someone is punished far more severely than doing so accidentally. Firing an employee because of her race or gender is illegal, while firing her for most other reasons is not. While there are genuine difficulties involved in ascertaining motives, they are not insuperable, and they do not justify simply ignoring discriminatory motives—especially not in cases where the evidence is strong and clear. And if the government has a genuine non-bigoted justification for the challenged policy, Supreme Court precedent allows it to prevail if it can prove it would have adopted the same policy even in the absence of improper motives. That reduces the risk that striking down discriminatory policies would somehow create a dangerous slippery slope.
Many claim that the government should get a pass on otherwise impermissible discrimination in particular types of cases. For example, defenders of the travel ban often argued that special deference is appropriate because aliens have no constitutional right to enter the country. Nothing in the text or original meaning of the Constitution justifies such exceptions to the First Amendment's ban on religious discrimination. If they were allowed, the exceptions would quickly swallow up the rule. While there is no constitutional right to enter the United States, there is also—under current Supreme Court precedent—no constitutional right to government funding of religious schools (the Blaine Amendment cases), and no meaningful constitutional right to be a baker (Masterpiece Cakeshop). The whole point of constitutional restrictions on discriminatory policies is to forbid certain types of discrimination even when it comes to things that are not otherwise constitutional rights. In cases where the activity in question is protected by some other constitutional right, we don't need anti-discrimination rules, because the government's restrictions would be struck down regardless.
Some also argue that discrimination in immigration or national security policy should get strong deference because the executive has specialized expertise on these issues (a contention that played a key role in the Supreme Court's decision in the travel ban case). The exact same thing can be said of many other policies, including education policy (the issue at stake in the Blaine Amendment cases). At the very least, deference is not appropriate in cases where the evidence indicates that neutral application of specialized expertise is not the true motive behind the policy in question, but rather a cover for discrimination.
In a diverse and politically polarized society, government officials on both right and left will sometimes target religious minorities for discrimination, especially ones disliked by their side of the political spectrum. Courts should strike down such discrimination regardless of whether it targets Muslims, Catholics, or socially conservative Protestants, and regardless of whether the policy involves immigration, education, or some other issue.