In the last several weeks, Americans have been debating how best to address the question of lingering racial prejudice in society. As the country struggles to shed any remnants of the sordid legacy of slavery and Jim Crow laws, the U.S. Supreme Court issued a decision that struck down one of the last props holding up another form of bias that had become embedded in American law in the 19th century. The court’s decision in Espinoza v. Montana Department of Revenue that was handed down this week spelled out the doom of so-called “Blaine amendments,” legislation passed in dozens of states across the nation in the 1880s that were a manifestation of hatred against Catholics.
The high court’s 5-4 ruling made it clear that these laws that forbade any state money going to religious schools were clearly discriminatory because they were prepared to aid non-religious schools. This is a victory for children of all faiths, their parents, as well as the rule of law and a defeat for militant secularists and bigots. The question is: Why are so many American Jews and the organizations that purport to represent them among the ranks of those mourning the result?
The answer is that much of the American Jewish world is still stuck in an obsolete mindset about the role of religion in the public square that’s rooted in ancient biases that Jews should really deplore. It’s also a function of a secularist mindset that is deeply destructive of efforts to promote Jewish communal life. Though Orthodox organizations were among those lauding the court’s decision, much of the rest of the community was either silent or upset about a ruling that will benefit many Jewish families.
The facts of the case involved the efforts of Karen Espinoza, a single working mother who holds down two jobs to support her two children and who wanted to send them to a school that would provide a curriculum that supports the religious values she supports. She chose to send them to Stillwater Christian School in Kalispell, Mont., an avowedly evangelical academy in a remote part of the state. But in order to afford the private-school tuition, she relied on a state program created by the Montana legislature that allowed donors to get tax credits that created scholarship funds to help struggling parents.
Similar education tax-credit funds exist in many other states. But in 2018, Montana’s Supreme Court struck down the scheme as violating the state’s Blaine amendment to its constitution that forbids any public funds from going to religious schools.
The Blaine laws are named after James G. Blaine, a Republican senator and secretary of state who lost a close race for the presidency in 1884. He sought to win the White House on a platform of opposition to “Rum, Romanism and rebellion.” The last of those three planks denoted his opposition to former Confederates. But the first two indicated his contempt for the immigrants streaming into the country from Ireland and southern Europe, most of whom were Catholics, coupled with the idea that all such newcomers were drunks.
The Blaine laws were not, as some of their current supporters think, a manifestation of opposition to any form of religious education. To the contrary, most public schools of the era also taught religion. The only difference is that almost all of them incorporated Protestant liturgy, the faith of the overwhelming majority of Americans in the late 19th century.
The target of Blaine and his supporters was the growth of Catholic schools set up to serve the children of immigrants. Although opponents of state aid to religious schools now claim their stand dates back to the opinions of Thomas Jefferson, few in the 19th century thought there was anything wrong with the state supporting religious education. What they were opposed to was non-Protestant education, and it was that anti-Catholic bigotry of Protestants that led to the passage of Blaine laws aiming to cripple Catholic schools.
More than a century later, almost all of these prejudice-soaked amendments are still in the books. The only difference now is that the bigots who seek to enforce them are militant secularists who are aghast at the idea of funding going to any religious school—be it Protestant, Catholic, Jewish, Muslim or any other faith.
Public-teacher unions—primarily concerned with preserving a government monopoly on public education—also back them. That involves their war on private, religious and charter schools that provide competition to failing public schools, where all too many poor and minority children remain trapped.
At a time when Jewish day schools, which can give children an understanding of their faith and heritage, are needed more than ever, tax-credit and other programs that promote school choice remain a vital resource for the Jewish community. The only groups applauding the court’s ruling, however, are those associated with the Orthodox movements. Liberal and secular groups supported Montana’s efforts to maintain its old prejudicial law.
Contrary to the stand of the Religious Action Center of Reform Judaism, state aid—even of the indirect kind like that of the tax-credit scholarship programs—doesn’t constitute an “establishment” of any religion since it is available to all faiths. Those who want to create an unreasonably high “wall of separation” aren’t protecting either the Constitution or the sensibilities of the secular. What they are doing is waging a war on religion in the public square that is based in an unjustified fear of the influence of faith.
Perhaps such attitudes made sense in the past, when Jews feared the influence of faith in the public square as a religious minority. But that has nothing to do with the reality of 21st century, in which it is religious liberty that is under attack from secularists, rather than the other way around.
Religious education is no threat to the Constitution, let alone the Jewish community. Vital tax-credit and school-choice programs that help families deserve Jewish support. Sadly, liberal Jewish groups that cling to the prejudice against faith embodied in Blaine amendments are stuck in a past that most of the rest of the country has transcended.
Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.