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Justice Alito Cites 1871 Anti-Catholic Political Cartoon of Priests as Crocodiles in Religious Liberty Opinion

WASHINGTON, DC - MARCH 07: U.S. Supreme Court Associate Justice Samuel Alito testifies about the court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee March 07, 2019 in Washington, DC. Members of the subcommittee asked the justices about court security, televising oral arguments and codes of ethics for the court.

U.S. Supreme Court Justice Samuel Alito on Tuesday dug deep into the annals of anti-Catholic history in America by pasting a 149-year-old Harper’s Weekly political cartoon into a concurring opinion in Espinoza v. Montana Dept. of Revenue. In that case, the U.S. Supreme Court held 5-4 that Montana violated the Free Exercise Clause of the U.S. Constitution by shutting down a tax credit and scholarship program which operated under a questionable rule which allowed benefits for students of private schools — but not for students of private religious schools.

The high court’s decision pitted legally conservative justices John Roberts, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Alito, three of whom also filed concurring opinions to further voice their thoughts, against legally liberal justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor. Alito, in his concurrence, was not pleased that the program, pursuant to Montana’s state constitution, “forb[ade] parents from participating in a publicly funded scholarship program simply because they send their children to religious schools.” Thus, he agreed that the Montana program should be kept alive in a fashion which allowed it to remain open to all.

To arrive at his holding, Alito traced the history of the Montana constitutional amendment at issue in Espinoza through the help of nearly two dozen briefs, most of which were filed by amici curiae “not filed by organizations affiliated with the Catholic Church.” Taken together, the amici suggested that Montana’s 1972 amendment upon which the disputed scholarship program was built was itself “modeled on the failed Blaine Amendment to the Constitution of the United States.” The 1875 Blaine Amendment, Alito said, was “prompted by virulent prejudice against immigrants, particularly Catholic immigrants.”

“In effect, the amendment would have ‘bar[red] any aid’ to Catholic and other ‘sectarian’ schools,” Altio noted.  The Blaine Amendment was, for example, supported by the Ku Klux Klan, he said.

Though it was narrowly defeated at the federal level, “most States adopted provisions like Montana’s to achieve the same objective,” Alito said, and “[t]hirty-eight States still have these ‘little Blaine Amendments’ today.”

As Catholics increasingly emigrated to America, “[n]ativist fears increased,” the Know Nothing Party was formed “to decrease the political influence of immigrants and Catholics,” and activism against Catholic education became part of the political discourse.

That backdrop led Alito to the political cartoon.

“The feelings of the day are perhaps best encapsulated by this famous cartoon, published in Harper’s Weekly in 1871, which depicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background,” Alito wrote.

The cartoon “depicts Roman Catholic clergy as crocodiles invading America’s shore to devour the nation’s schoolchildren–white, black, American Indian, and Chinese,” one repository of Harper’s Weekly content explains. “The public school building stands as a fortress against the threat of theocracy, but it has been bombarded and flies Old Glory upside down to signal distress.”

Alito further explained the cartoon’s relevance to his search for legal answers. “The resulting wave of state laws withholding public aid from ‘sectarian’ schools cannot be understood outside this context” depicted in the cartoon, Alito said. He noted that Montana’s amendment “retains the bigoted code language” that he found more constitutionally offensive than that contained in other recently jettisoned state provisions, such as those which once allowed non-unanimous jury verdicts. (The Supreme Court held in an Apr. 20 plurality opinion that unanimous verdicts were now required in serious-offense criminal trials and that previous rules allowing split juries were born of racism.)

After outlining the history and the cartoon, Alito attacked Montana’s constitution. Here’s how the section up for debate in Espinoza reads:

Aid prohibited to sectarian schools.

(1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

(2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.

Historically, “it was an open secret that ‘sectarian’ was code for ‘Catholic,’” Alito said. He then broadened its divisiveness: “The term was likewise used against Mormons and Jews.”

After more legal history, Alito described the creation and funding of public schools as part of a “strong nativist movement” against Catholic education. Public schools historically sought “to establish a system that would inculcate a form of least-common denominator Protestantism,” Alito said, including teaching students to complete “daily reading from the King James Bible.” Those readings, Alito said, were “an affront to many Christians and especially Catholics.”

Alito then argued that public schools were historically tied to nativist and even racist ideologies.

“Catholic and Jewish schools sprang up because the common [public] schools were not neutral on matters of religion,” Alito said. He then said the “Know Nothing party, in many ways a forerunner of the Ku Klux Klan, took control of the [Massachusetts] legislature . . . and championed one of the first constitutional bans on aid to ‘sectarian’ [Catholic] schools.”

Alito was unpersuaded by the nearly 100 years which passed between the 1972 Montana amendment and the 1875 Blaine amendment. He was also unpersuaded that separation-of-church-and-state Catholics were among those who championed Montana’s amendment. In Alito’s view, “non-bigoted reasons” for passing the Montana amendment do not matter (internal punctuation and citations removed):

[I]t emphatically does not matter whether Montana readopted the no-aid provision for benign reasons.  The provision’s uncomfortable past must still be examined.  And here, it is not so clear that the animus was scrubbed . . . there appears to have been little doubt which schools this provision would predominantly affect. [T]he no-aid provision’s terms keep it tethered to its original bias, and it is not clear at all that the State actually confronted the provision’s tawdry past in reenacting it . . . the discrimination in this case shows that the provision continues to have its originally intended effect.

Alito then espoused an opinion which suggests parents angry with the trajectory of an increasingly secular society should demand and expect government support for education which perpetuates their religious beliefs:

Today’s public schools are quite different from those [of the past], but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice. The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”

None of the justices, Catholic or otherwise, joined Alito’s concurrence.

[Image via Chip Somodevilla/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.