Rules Are for Schmucks: Time to Amend the Constitution

Thomas Jefferson's grave (photo by Christopher Hollis)

Some secular analysts of the Supreme Court’s landmark Trinity Lutheran decision, including here at, are taking a balanced, wait-and-see approach to its impact. “Don’t plan a funeral dirge for the Blaine Amendments yet,” advises the usually insightful Kimberly Winston at the Religious News Service.

With all due respect, I believe they are mistaken. Unmitigated disasters do occur and this case is one of them. Ignore all the fine-point quibbles about footnotes and concurrence nuances that hair-splitters love to toy with. The fact is there were thirty-eight states that had Blaine Amendments, prohibiting the transfer of tax money to religious institutions. They were all based on Thomas Jefferson’s proudest legislative achievement, the Virginia Statute for Religious Freedom, which boldly proclaimed that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” These laws were deliberately intended to go further than the Establishment Clause of the First Amendment in keeping religion and government separate. The American people, even in highly religious states like Oklahoma and Florida, overwhelmingly approved of them and voted at every opportunity to keep them in place.

Now they’re gone, by a vote of 7-2. There is nothing left that would be prohibited by a Blaine Amendment that wouldn’t also be prohibited by the less robust Establishment Clause. The entire point of the Blaine Amendment to strengthen church-state separation is gone with the Trinity Lutheran decision.

Understand this: Trinity Lutheran doesn’t just permit tax money to go to churches. It requires tax money to go to churches. It forbids the government at any level from carrying out Jefferson’s simple rule “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”

Justice Roberts, author of the opinion explains that he does not require the government to fund the direct propagation of religious belief. However, this argument is absurd.. Money is fungible—every tax dollar that Trinity Lutheran doesn’t spend on resurfacing its playground is a tax dollar they can spend on advertising their supernatural beliefs or spouting Christian Right political views. As you read this, God industry execs and their lawyers are busy at work devising creative new ways to transfer more and more money out of your pocket and into theirs. Today it’s playgrounds. Tomorrow it will be utility bills, or teacher salaries, or rent, or meals, or pension funding. No government at any level will have a choice. If funding is provided to anyone, it must be provided to churches as well.

I can see three possible responses to this travesty from the secular community.

Plan A: Live with it. Turn the other cheek while billions and billions of dollars flow out of our pockets and into the God industry, where they will be used to indoctrinate little children about how evil we are. I don’t like this plan.

Plan B: Work through the political system in order to elect presidents and senators who will give us judges who will someday overturn this outrage. This may be the conventional wisdom, but it won’t work. A plurality of Americans have already voted to elect moderate-to-liberal Democratic presidents in six of the past seven elections, and all it’s gotten us is a crushing 7-2 defeat. Even “liberal” justices like Elena Kagan and Stephen Breyer, appointed by Democratic presidents, voted to erase an achievement of Thomas Jefferson’s that he asked to be inscribed on his tombstone. Even if by some magic the court became populated by justices who do respect the separation of church and state, there is a great reluctance (legally called stare decisis) simply to say “Oops!” and overrule a prior decision. I don’t like this plan either.

Plan C: Thomas Jefferson would have been dumbfounded at the thought that his Statute of Religious Liberty somehow violates the First Amendment. But he’d have shown no hesitation in what to do about it. Repeatedly throughout his career, Jefferson stressed the idea that a self-governing people will amend its constitution from time to time as needs arise. “Every human essay must have defects,” he wrote. “It will remain, therefore, to those now coming on the stage of public affairs, to perfect what has been so well begun by those going off it.”

Amending the US Constitution is not easy. There has not been a single constitutional amendment proposed and adopted during the lifetime of most Americans. Jefferson would be as mystified by this failure as he would by Trinity Lutheran itself. We’ve grown far too dependent on the Supreme Court oligarchs to read new interpretations into old words, leading to occasional catastrophes like this decision. Jefferson’s vision was that we would govern ourselves—not count on nine people in black robes to do it for us.

What should be in such an amendment? The temptation would be to load on even the kitchen sink and try to cover every aspect of church-state separation in one fell swoop. However, I think that would be a tactical mistake. I’m a million percent in favor of working hard to promote inclusiveness by removing religious symbols from our public square—something the American Humanist Association is exceedingly good at. But when you get down to it, symbols are just symbols, but money is money. The Blaine Amendment, as enacted in nearly identical form in thirty-eight states, restricts the use of money supplied by taxpayers for religious ends. It prevents Christians and Jews from having to fund Muslim madrassas. It prevents Muslims for having to fund Jewish institutions that are rabid for Israel. It prevents nonbelievers and the nonaffiliated—our own little quarter slice of the population—from having to fund the brainwashing of children to the effect that all of us deserve to be tortured forever in Hell. At least it used to, before last week. As noted above, Americans in even the most conservative religious states overwhelmingly support the Blaine Amendment, when given the chance. I hope that some enterprising members of Congress give people the chance to support it again, at the federal level, before too many billions of our dollars get “repurposed” for things we don’t believe in.