The House of Representatives has passed a bill now pending consideration in the Senate and supported by the Democrats known as “Build Back Better” or BBB. One of the biggest problems with this bill is that it is blatantly unconstitutional.
BBB contains provisions for federally financed day care and preschool. It also prohibits the payment for any such services held in facilities that are “used primarily for sectarian instruction or religious worship.”
The bill, if it becomes law, will, no doubt, give birth to fights over its meaning. Is a room, in a church, used for receptions after Sunday services disqualified? Does it matter how much of the church building it occupies? Is a room used for Sunday school disqualified? What about a small classroom in a church building?
These questions should never have to be answered because the bill is unconstitutional on its face, no matter what the answers are. The anti-religious provision in the bill is an echo of a shameful period in the late 1800s when a majority of the states passed so called “Blaine Amendments” to their constitutions. These provisions prohibited state aid to religious primary and secondary schools.
On June 30, 2020, the U.S. Supreme Court, in a case known as Espinoza v. Montana Department of Revenue, found the Blaine Amendments unconstitutional as applied to scholarship programs. The Supreme Court is now also considering a case, known as Carson v. Makin, in which the Court is almost certain to hold the Espinoza case applicable to Maine’s high school voucher program.
The First Amendment to our Constitution begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In the later part of the last century legal scholars sometimes misinterpreted these two provisions as contradicting each other. The Supreme Court has now, fortunately gotten over this misinterpretation, and recognizes anti-religion provisions as prohibiting the free exercise of religion.
After all, how could a law made by Congress that treats a room in a church building less favorably than a room in the hall of a veterans’ or civic organization? Why should Congress be able to make a room in a city hall legal for child care and a room in a church building as unfit for child care?
The reason for this departure from logic is unfortunately too clear. There are forces in our country that want to teach children about disordered intimate acts when they are quite young. The main forces against this abuse are devout parents and orthodox churches, including the Catholic Church. The easiest way to impose these perversions on more children is to revert to the shameful anti-Catholicism of late 1800s.
Congress should stand up for religious liberty and defeat BBB.