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01/27/2018

Robert Natelson: Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional
Michael Ramsey

In The Federalist Society Review (vol. 19, 2018), Robert Natelson (Independence Institute): Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning.  Here is the introduction (footnotes and some text omitted):

 In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court struck down a Missouri state policy of restricting religious institutions from participating in grant programs. The policy arose from the state government’s efforts to comply with its state constitution’s prohibition on use of public funds to benefit “any church, sect or denomination of religion.”

Many states have prohibitions even broader than the one in the Missouri constitution. Most state constitutions adopted during the nineteenth century, unlike that currently prevailing in Missouri, identified their proscribed recipients and purposes as sectarian. This was true of Missouri’s superseded 1875 charter, and it is also true of charters under which many states still operate. For example, the current Colorado constitution, ratified in 1876, provides:

No appropriation shall be made for charitable, industrial, educational or benevolent purposes . . . to any denominational or sectarian institution or association. …

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

No sectarian tenets or doctrines shall ever be taught in the public school . . . .

In some cases, prohibitions against aid to sectarian organizations or for sectarian purposes were not in the state’s original constitution, but were added by amendment during the nineteenth century; many of these changes were minor alterations in wording, suggesting that no major substantive changes were contemplated.  In other cases, twentieth century constitution writers copied such prohibitions from their states’ earlier charters.

Commentators have long argued that prohibitions against aid to sectarian groups are void under the First and Fourteenth Amendments to the U.S. Constitution. …

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Part I of this article examines language from nineteenth century state constitutions to determine whether, as some claim, sectarian meant merely “religious” or “denominational.” The texts tell us rather clearly that this was not the case—that sectarian held a meaning quite distinct from “religious” or “denominational.” Part II surveys contemporaneous dictionary definitions and newspaper usage. Those sources show that sectarian referred specifically to religions and religious people the speaker deemed bigoted or out of the mainstream. Part III summarizes the constitutional implications of these findings. However, this article does not discuss the standards of constitutional review or aspects of those standards such as levels of scrutiny or burdens of proof. The focus here is on the meaning of sectarian—a subject not heretofore reported accurately in the legal literature.