Sorry Lee, it's a stinker . . .

Ok. Spotty will be honest. He has been putting this post off for a while. Not because he doesn’t have something to write, but rather that he isn’t sure how to write it in a way that wouldn’t give readers marks on their faces from falling asleep and plunging face down on their keyboards. You’ve been warned.

First, we need a return to the thrilling days of yesterweek, or the week before. Readers who have not successfully repressed the details will remember that Spotty and Lee McGrath, the Great Kahuna at the Institute for Justice, Minnesota Chapter, have had a little dust up over the constitutionality of school vouchers for parochial schools under Article XIII, Section 2 of the Minnesota Constitution, most recently discussed here.

Here’s a soap opera digest of the action thus far:

Spot says the Minnesota Constitution prohibits a school voucher program being used to fund parochial – or sectarian, to use the word in the Constitution – schools. Read about it here in Brandl’s offspring. Lee comments, saying that section of the Minnesota Constitution is void (under the US Constitution) because people were being mean to Catholics at the time it was enacted.

In Spotty’s next post on the subject, entitled Affirmative action because he knew it would drive conservatives nuts, he said that Lee’s argument amounted to affirmative action for Catholics. And then in A discussion of some isms, also linked above, Spot went on to say that Lee could only make his case if Article XIII, Section 2 of the Minnesota Constitution violated the Free Exercise Clause of the First Amendment of the US Constitution. And Spot said that was silly.

Hang on; we’re almost done with the preamble and ready to start the post. And may God have mercy on your souls.

Lee comments, No you dumb dog, I agree with you on the Free Exercise Clause; it’s the Establishment Clause of the First Amendment that is violated by Article XIII, Section 2 of the Minnesota Constitution. We are gathered here today, boys and girls, to examine that remarkable assertion.

Extended hysterical laughter. Sorry.

Remember now, the Establishment Clause prohibits the advancement of any religion or religious sect. There have been lots of formulations of the test over the years, but that’s it in a nutshell. A lot of nibbling has gone on over the years, arguing that a particular expenditure of funds for parochial schools does not advance a religion; bus transportation is one example. The First Amendment addresses religion in general, but not parochial schools in particular.

Obviously, payment of a voucher when the money is used for a curriculum that includes sectarian teaching and books is a different matter. But Minnesota is even tougher. As a refresher, here is Article XIII, Section 2 again:

PROHIBITION AS TO AIDING SECTARIAN SCHOOL. In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.

Wow, that’s unambiguous. Even Lee agrees, or certainly seems to, that the quoted language prohibits state-sponsored parochial school voucher schemes. This language certainly seems to address the nibbling that Spot describes above, too.

But in a genuinely Orwellian moment, Lee says Article XIII, Section 2 violates the Establishment Clause. And up is down, and black is white. How can this be? Well, it can’t, but here’s Lee argument: given the milieu surrounding the adoption of this section of the Minnesota Constitution, its adoption amounts to the establishment of Protestant Christianity, and therefore, it should be written out of the Minnesota Constitution by the courts. Pretty smart, huh?

Smart no; baloney yes. Spotty does not accept Lee’s version of history. But even if he did, it really wouldn’t matter. The Supreme Court reaches constitutional questions last, not first. In other words, if there is a way to resolve a case short of finding a statute (or a state constitutional provision) unconstitutional, that’s what the Court is supposed to do.

One of the canons of statutory interpretation is that if the language is unambiguous, that’s it. This language is unambiguous, and the unambiguous language obviously does not violate the Establishment Clause. Lee only gets to talk about legislative history or his milieu in an effort to resolve ambiguity or fill in gaps not addressed by the language itself.

This is called determining legislative intent. Notice that Spot said intent, not motivations. Even if a court were to look at intent, it would be impossible to conclude that the Legislature and the voters intended anything other than prohibition of aid to all sectarian schools. The fact that some people may have had the motivation to keep money away from Catholics is irrelevant. Irrelevant.

Forget it, Lee; it’s a loser.

Okay, here’s a teaser. Another canon of statutory or constitutional interpretation is to read sections together and to try to find a comprehensive whole. Article XIII, Section 1, the next door neighbor of the section we’ve been discussing, also sheds light on its meaning. Stay tuned.

Tags: First Amendment school vouchers