By Garrett Epps
Let’s play a game beloved by judges and lawyers: Dueling Hypotheticals.
Hypothetical one: In 1889, Congress offers statehood to an American territory, but only on condition that its constitution will set up public schools “free from sectarian control.” It promises to do so, and Montana is born. Nearly a century later, in 1972, a citizens’ convention comes together to write a new constitution. The delegates debate whether to retain the “sectarian control” language—or, as it is known, the “no aid” provision—which forbids the payment of state funds to any school or other institution “controlled in whole or in part by any church, sect, or denomination
One delegate, a Protestant pastor, leads the forces that want to keep it. Why? He admits that, by its language, it appears to penalize Catholics. But it’s now the 20th century, he says, and Catholics aren’t persecuted in Montana. The pastor, and many religious people like him, support the provision as a way of keeping government out of religious affairs. Catholic delegates take part in the debates, and various religious officials are consulted. The convention then amends the provision to make clear that federal funds intended for schools generally are not covered by the ban; even if they are distributed by the state government, federal funds can flow to religious schools on an equal basis. As a compromise, the new measure attracts the votes of Catholic and Protestant delegates.
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