Roberts cites ob­scure speech in church-state case

The Washington Post Sunday - - COMMUTER - BY ANN E. MARIMOW ann.marimow@wash­post.com Sarah Pulliam Bailey con­trib­uted to this re­port.

When Chief Jus­tice John G. Roberts Jr. de­liv­ered the Supreme Court’s rul­ing in an im­por­tant sep­a­ra­tion of church and state case, he closed with an ex­cerpt from an 1819 speech by a lit­tle­known state law­maker, who spoke pas­sion­ately against the ex­clu­sion of Jews from public of­fice in the early 19th cen­tury.

The law­maker Roberts cited last week was H.M. Brack­en­ridge, a mem­ber of the Mary­land House of Del­e­gates and lead­ing sup­porter of what was known as the “Jew Bill” — a mea­sure to re­move the state’s re­quire­ment that elected of­fi­cials swear to “a be­lief in the Chris­tian re­li­gion.”

The brief ex­cerpt from Brack­en­ridge’s lengthy speech came at the end of the 15-page ma­jor­ity opin­ion in Trin­ity Lutheran v. Comer. The high court found that a preschool op­er­ated by a Mis­souri church should have been el­i­gi­ble for state fund­ing just like other non­re­li­gious char­i­ta­ble or­ga­ni­za­tions.

Trin­ity Lutheran Church in Columbia, Mo., brought the case af­ter the Mis­souri gov­ern­ment ex­cluded the church from a grant pro­gram that pays to resur­face play­grounds be­cause the state said it could not pro­vide fi­nan­cial as­sis­tance di­rectly to a church. In the 7-2 de­ci­sion, Roberts quoted Brack­en­ridge be­fore con­clud­ing that the ex­clu­sion of the church “solely be­cause it is a church, is odi­ous to our Con­sti­tu­tion all the same, and can­not stand.”

The son of a Penn­syl­va­nia Supreme Court judge, Brack­en­ridge is hardly a house­hold name in Mary­land’s po­lit­i­cal his­tory, hav­ing served just two terms rep­re­sent­ing Bal­ti­more. Much of his ca­reer was spent in other states, in­clud­ing stints as a judge in Louisiana and Florida, and as a U.S. con­gress­man from Penn­syl­va­nia in 1840.

Brack­en­ridge’s 1819 speech was part of broader ef­fort to get rid of a mea­sure that pre­vented Jews from be­ing elected. Many states in the early 19th cen­tury had re­li­gious qual­i­fi­ca­tions for of­fice.

Ac­cord­ing to the Mary­land State Ar­chives, Brack­en­ridge ar­gued that Mary­land’s re­quire­ment vi­o­lated the First Amend­ment of the Con­sti­tu­tion, which at the time only ap­plied to the fed­eral gov­ern­ment. The Jew Bill did not pass dur­ing Brack­en­ridge’s tenure, when there were only about 150 Jewish peo­ple in Mary­land. Jews were un­able to hold elected of­fice in Mary­land un­til 1826, said Emily Oland Squires, di­rec­tor of re­search, ed­u­ca­tion and out­reach at the Mary­land State Ar­chives.

Re­li­gious-his­tory schol­ars said last week that Brack­en­ridge’s speech was a fas­ci­nat­ing choice for Roberts in that he used the lan­guage of pro­tect­ing re­li­gious mi­nori­ties to pre­vent the ex­clu­sion of Chris­tians from a state grant pro­gram. In the Trin­ity Lutheran opin­ion, Roberts quotes the fol­low­ing lines:

“If, on ac­count of my re­li­gious faith, I am sub­jected to dis­qual­i­fi­ca­tions, from which oth­ers are free . . . I can­not but con­sider my­self a per­se­cuted man . . . . An odi­ous ex­clu­sion from any of the ben­e­fits com­mon to the rest of my fel­lowc­i­t­i­zens, is a per­se­cu­tion, dif­fer­ing only in de­gree, but of a na­ture equally un­jus­ti­fi­able with that, whose in­stru­ments are chains and tor­ture.”

Peter Manseau, cu­ra­tor of Amer­i­can re­li­gious his­tory at the Na­tional Mu­seum of Amer­i­can His­tory, noted that the full text of the speech makes clear that Brack­en­ridge was talk­ing about mi­nor­ity or mar­ginal opin­ion:

“If, on ac­count of my re­li­gious faith, I am sub­jected to dis­qual­i­fi­ca­tions, from which oth­ers are free, while there is no para­mount rea­son drawn from a re­gard to the safety of so­ci­ety, why I should be thus ex­cepted, I can­not but con­sider my­self a per­se­cuted man. The per­se­cu­tion may be but slight in its char­ac­ter, but still it must bear the de­tested name of per­se­cu­tion. It is true, it is not the fagot, or the wheel, but it is ap­plied for the same rea­son — be­cause my opin­ions do not con­form to those of the more nu­mer­ous, or more pow­er­ful.”

Alex Luchen­itser, as­so­ciate le­gal di­rec­tor of Amer­i­cans United for Sep­a­ra­tion of Church and State who filed a brief sid­ing with the state of Mis­souri, said other parts of Brack­en­ridge’s speech are more in line with the view of the two dis­sent­ing jus­tices in the Trin­ity Lutheran case. Jus­tice So­nia So­tomayor, joined by Jus­tice Ruth Bader Gins­burg, said the coun­try’s “long­stand­ing com­mit­ment to sep­a­ra­tion of church and state” means “the gov­ern­ment can­not, or at the very least need not, tax its cit­i­zens and turn that money over to houses of wor­ship.”

Brack­en­ridge’s words, said Luchen­itser, echo the gen­eral think­ing of the Found­ing Fathers that re­li­gion should be sup­ported solely by pri­vate funds. He pointed to a line in the speech that says:

“The only sup­port of re­li­gion, should be de­rived from the zeal af­fec­tion and faith of those who pro­fess it.”

Roberts did, how­ever, ac­knowl­edge that the state of Mis­souri’s de­nial of tax­payer funds for a play­ground was not equiv­a­lent to sub­ject­ing “any­one to chains or tor­ture on ac­count of re­li­gion” and that the state’s pol­icy was “noth­ing so dra­matic” as the de­nial of public of­fice.

Some of the re­li­gious schol­ars who pointed out the fuller con­text for Brack­en­ridge’s speech none­the­less said they were im­pressed that Roberts — or one of his clerks — had dug up the ob­scure his­tor­i­cal ref­er­ence.

STATE AR­CHIVES OF FLORIDA

H.M. Brack­en­ridge in 1819 spoke in Mary­land’s leg­is­la­ture against re­li­gious ex­clu­sion.

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