//  6/15/17  //  In-Depth Analysis

Consider the following scenario, which imagines how news of child sex abuse and institutional cover-ups might be used in the political arena if the overt anti-Catholic animus of yesteryear still prevailed today:

During a gubernatorial campaign, a candidate calls for a “total and complete shutdown of Catholic schools until we can figure out what the hell is going on.” Three months later, the candidate says in an interview that “Roman Catholicism puts her allegiance to the Pope above the flag, Catholic schools have put our children at risk by protecting child-abusing priests, and we can’t have people running schools whose first allegiance isn’t to America and who aren’t committed to our children’s safety.”

Later in the campaign, the candidate appears to modify his position, announcing a policy of “suspending accreditation of private schools in regions of the state compromised by child sex abuse.” Asked if this represents a rollback of his original proposal, the candidate responds: “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at regions. People were so upset when I used the word ‘Catholic.’ And I’m okay with that, because I’m talking private schools and regions instead of Catholic.”

A month after his election, the Governor-elect is asked whether a new report of sex abuse at a Catholic school has caused him to “reconsider or re-evaluate his plan to shut down Catholic schools.” He responds: “You’ve known my plans all along and I’ve been proven to be right, 100 percent correct.”

One week after being sworn into office, the Governor signs an executive order that suspends for 90 days existing state accreditation of all private K-12 schools in six of the state’s 60 counties. The six counties where private schools will be required to halt operations are all located in the northeast region of the state, which is where Catholics first settled when arriving in the state. Although large Catholic schools have since been opened in other areas of the state, the northeast region remains the area most closely identified with Catholicism in the minds of the state’s non-Catholic residents. More than 95% of the private schools in the six affected counties are affiliated with the Catholic Church.

To justify its scope of coverage, the Governor’s order relies on a preexisting state report listing the six counties, and no others, as being home to colleges with high-enrollment Educator Preparation Programs (EPPs) that have been deficient in teaching about awareness of child sex abuse. To be certified to teach at the K-12 level in the state, an individual must have a bachelor’s degree, complete an accredited EPP, and pass a state certification test.

Three of the six covered counties are home to at least one private school where sex abuse has been documented in the past 10 years. The same is also true, however, of several non-covered counties, both in the northeast region and around the state. At least two documented cases involving large numbers of abused children took place at non-Catholic private schools, but those schools are unaffected, as they are located in counties in the southwest region of the state that are not covered by the Governor’s order. Less than 5% of the private schools in those counties are affiliated with the Catholic Church.

Multiple suits are brought to enjoin the Governor’s order alleging (1) deprivation of the parental right recognized in Pierce v. Society of Sisters to “direct the upbringing and education of children,” and (2) religious discrimination. In defending against the first claim, the state argues that the temporary nature of the Governor’s order (90-day suspension of private school operations) is a far cry from the law at issue in Pierce, which permanently required parents to send their children to public school. In defending against the second claim, the state insists that the Governor’s “unofficial” statements about Catholic schools before taking office cannot be considered in determining whether his order suspending private school operations in select counties has a discriminatory purpose.

Of particular interest here is the second claim and the validity of relying on unofficial statements to show discriminatory purpose, which is a hotly contested issue in the travel ban litigation. Indeed, the lower courts’ reliance on President Trump’s pre-inaugural statements has drawn extraordinarily harsh criticism from some commentators, who contend it is a Trump-specific phenomenon that has seen federal judges put motivated reasoning and even hatred of the President above the rule of law. 

To help test this “Trump-anomaly” contention, imagine for a moment that anti-Catholic animus had recently reemerged as a potent political force in one state and that the scenario above had actually played out in that state. If a lower court invalidated the six-county school-suspension order, relying in part on the Governor’s anti-Catholic campaign statements and his reaffirmation of those statements during the transition, would that ruling be ridiculed as “a clear example of fake law” that inappropriately relies on “papier-mâché bulwarks, seemingly designed to last only as long as needed to hold [the Governor] at bay” through “judicial resistance”?1

I strongly suspect not, and here’s why: Such scorn has not been directed at the prominent religious liberty advocates and scholars who have relied on unofficial statements evidencing anti-Catholic animus when challenging state-level “Blaine Amendments.” These measures, which generally provide that public funds cannot be used for sectarian schooling, were enacted after an unsuccessful effort in 1875-76 to amend the federal constitution with a similar provision.

In recent years, the Becket Fund for Religious Liberty has filed numerous briefs arguing that state laws it considers to be Blaine Amendments should be struck down because they are rooted in anti-Catholic bigotry. In one such brief, which was joined by the Christian Legal Society and the Lutheran Church–Missouri Synod, and co-authored by Professor Tom Berg, Becket argued that Colorado’s no-funding measure was a “perfect example of a state provision stemming from suspicion and hostility toward Catholicism.” In support of this contention, and under the heading “Anti-Catholic statements,” the brief highlighted two statements: one made by a newspaper in support of the measure and the other made by a “noted Protestant minister.” 

A separate brief in the case filed by Professor Doug Laycock and Paul Clement relied on these same two statements, along with a second newspaper’s commentary and the private statement of a former governor, as proof of the “virulent strain of anti-Catholicism pervading the [Colorado] convention.” See also Brief of Amici Curiae Becket Fund et al. in Locke v. Davey (Becket Locke Br.)(contending that Washington State's no-funding measure is a "classic example" of nativist "hostility" towards Catholics, and quoting statements from out-of-state groups that were "politically successful in inciting anti-Catholic hatred," but citing no anti-Catholic statements made by officials in Washington State). See generally Richard W. Garnett, Brown’s Promise, Blaine's Legacy, 17 Constitutional Commentary 651, 673 (2000) (“[T]here is ample evidence that many States’ anti-aid provisions were motivated by bigotry—by discriminatory ‘animus’—to support an argument that these laws violate the Equal Protection Clause, as well as the various clauses of the First Amendment.”).

The claim that state Blaine Amendments were born of bigotry is contested, but nobody has accused those making the claim of practicing “fake law,” even though they have relied at times on unofficial statements far less probative than those at the heart of the travel ban litigation. And there is good reason such accusations have not been made: the Supreme Court’s well-settled precedent on ascertaining discriminatory purpose requires a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including the “historical background of the challenged decision” and the “series of events leading up to” it. See Becket Fund Locke Br. (relying on this precedent). The late Justice Scalia famously raised concerns when the Court applied this approach in the Establishment Clause context (see here and here), but until and unless his dissents become majorities, lower courts are obliged to take the Court’s current precedents at face value.

The federal government, however, appears undaunted by those precedents. In its recent petition to the Supreme Court in the travel ban litigation, the government favorably highlights the following criticism one circuit court judge offered about other judges who have relied upon President Trump’s pre-inaugural statements.

Judge Kozinski opined that using campaign and other unofficial statements made outside the process of “crafting an official policy” to establish “unconstitutional motives” is unprecedented, “unworkable,” and produces “absurd result[s].” … And it threatens to “chill campaign speech,” to which “our most basic free speech principles have their fullest and most urgent application.” 

There’s one small problem with this argument: In the past, the federal government itself has successfully relied upon campaign statements to demonstrate discriminatory purpose in litigation, and it has explicitly rejected the free speech chilling argument it now offers. See Reply Brief of the United States at 6, LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995) (brief available at 1994 WL 16181393):

The Village’s attempt to hide under the protective cover of ‘free speech’ is misguided…. [W]hen people leading the movement to form a village openly express anti-Orthodox animus and thereafter become cloaked with the color of law as the village’s elected and appointed officials, their expressions of religious animus become highly probative evidentiary sources in assessing whether discriminatory intent underlay formation of the village and enactment of its zoning code.

See also Opening Brief of the United States in LeBlanc-Sternberg at 38 (brief available at 1994 WL 16181390) (rejecting the same type of slippery-slope argument against using unofficial statements"You could have put in evidence when Mr. Fletcher was a boy in high school"that the government is now making in the travel ban litigation).  

In the end, the anomaly in the debate over the Trump travel ban is not the reliance on campaign and other unofficial statements as evidence of discriminatory intent.  Rather, the real anomaly is the expression of such indignant reactions to that reliance. As the Blaine Amendment and LeBlanc-Sternberg litigation shows, reference to such statements is far from novel in our religious liberty tradition—and would no doubt be embraced by federal judges in the face of an anti-Catholic measure along the lines posited above.

1 The two pieces quoted in the text reserve their harshest criticism for the general idea of using unofficial statements in animus inquiries, apart from the question of whether the inquiry should be modified in cases involving foreign affairs, national security, or immigration. See Marc DeGirolami, Fake Law (“Put to one side that the Supreme Court has never yet applied the establishment clause to foreign claims—a fact not even acknowledged by this judge. What makes the Hawaii court ruling so absurd—and such a clear example of fake law—is the district judge's use of campaign statements by people without any lawmaking power when they were made to identify the order's purpose.”); Josh Blackman, Analysis of IRAP v. Trump Part I: The Fourth Circuit’s Reliance on Pre- and Post-Inauguration Statements (“The majority opinion’s biggest error lies in its reliance on Trump’s statements on the campaign trail.”). The question of how the Court’s decision in Kleindienst v. Mandel and Justice Kennedy’s concurrence in Kerry v. Din should affect the inquiry in the travel order litigation raises separate questions beyond the scope of this post. See Blackman, Analysis of IRAP v. Trump Part IV: Judge Niemeyer’s Dissent (addressing those questions); Corey Brettschneider, The Fourth Circuit & Animus Under Mandel (same).

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