The Roberts Court’s Reconstruction of Church and State

by George Thomas

Abstract

In broadening free exercise and narrowing the meaning of establishment, the Roberts Court is engaged in a dramatic reordering of church and state in America. In this effort, the Court has rewritten Establishment Clause precedents and engaged in a steady dismantling of free exercise precedents. Drawing partly on historical scholarship that portrays separationist arguments as driven by anti-Catholic animus, the Roberts Court has found so-called “little Blaine Amendments” to be unconstitutional violations of free exercise. Yet these state constitutional provisions, as history reveals, often predate the rise of anti-Catholic thinking in the mid to late nineteenth century. Indeed, many of the ideas rejecting public funding of private religious institutions are older than the Constitution. This article seeks to illustrate that the history and politics around church and state are more complex than the narrative offered by the Roberts Court.