Yoni Appelbaum: How America ends

The conservative justices at oral argument, however, also seemed to find discrimination. Justice Brett Kavanaugh asked, “Suppose the state said, ‘We’re going to allow the scholarship funds to be used for secular schools or Protestant schools but not for Jewish schools’? Unconstitutional? … So what’s different when you say the scholarship funds can be used for secular schools but not for Protestant, Jewish, Catholic, or other religious schools?” Justice Samuel Alito said that the Montana decision was like a scholarship program that is “going mostly to blacks and we don’t like that and that’s contrary to state law. So the state supreme court says, ‘Okay … we’re going to strike down the whole thing.’” Roberts compared it to a racist decision to close public parks and pools, imagining a governing body saying, “If a higher percentage of African Americans come and use the pools, then we are going to shut down the whole thing.”

By this time, the case had become totally unmoored from reality. Justice Ruth Bader Ginsburg rather sharply reminded Komer, the challenger’s lawyer, that “under the Montana judgment, these parents are treated no differently than parents of children who are going to secular private schools, so where is the harm?” Courts, she noted, can “level up” (ordering relief for the challengers) or “level down” (invalidating the entire program). Ginsburg, writing for a unanimous Court, did exactly that in a 2017 case, Sessions v. Morales-Santana, which was a challenge to a citizenship law that allowed some children born to U.S.-citizen mothers abroad to gain citizenship more easily than children of citizen fathers. That law discriminated against men in violation of the equal-protection clause, she said. However, she continued, “this Court is not equipped to grant the relief Morales-Santana seeks” by giving him citizenship through his father; therefore, the statute was unconstitutional and would be struck in its entirety. No one would get the easier path to citizenship.

Kavanaugh himself suggested exactly the same thing in a 2019 case in which the Court stayed a Texas execution because the state allowed Christian and Muslim clerics to accompany prisoners to the death chamber but denied a Buddhist inmate the same accommodation. Because this was religious discrimination, he wrote, “the government ordinarily has its choice of remedy, so long as the remedy ensures equal treatment going forward.” So if a state excludes all advisers, the problem is solved. What is different here?

The real stakes in the case became clear when Komer insisted that Montana’s 1972 constitution contained a “Blaine Amendment.”

Dearly beloved, in religious-freedom law, them’s fightin’ words.

The name refers to James G. Blaine, known to his fellow members of Congress as “the magnetic man,” to his supporters as “the Plumed Knight,” and to his foes as “the continental liar from the state of Maine.” Blaine was by turns speaker of the House, a senator, secretary of state (twice), and an unsuccessful Republican presidential nominee. In 1875, in order to harness anti-Catholic support for his first presidential run, he proposed a constitutional amendment:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The word sect is the tell. At the time, it meant “Catholic.” For much of the 19th century, public schools in many states were infused with American Protestant culture—in-class reading of the King James Bible, the use of Protestant-themed textbooks, singing of Protestant hymns.