19th Century orphan-care fight still hobbles Nevada education

Steven Miller

In 1881, when State Controller James F. Hallock refused to honor an invoice from the Nevada Orphans Asylum for services rendered the State of Nevada, he cited the newly added Section 10, Article 11, of the Nevada Constitution, and noted that the Asylum was managed by the Sisters of Charity, a Catholic religious community.

Upon arrival of the issue before the Nevada Supreme Court, in the State v. Hallock case, the sisters’ attorneys first argued that the case involved a simple contract, which the justices should order the controller to carry out and pay.

On the other hand, if the word “sectarian” in Section 10 was to be an issue, they argued, it should only be understood to refer to, and thus exclude, non-Christians.

“Christianity is a part of the common law of the state of Nevada, as it is of the United States, in the qualified sense that its divine origin and truth are admitted,” they said.

Legally, it was far too weak a response. It did not deal with the word trap that American religious minorities had faced for half a century.

As U.S. Supreme Court justices have acknowledged frequently — see, for example, both Zelman v. Simmons-Harris and Mitchell v. Helms — equivocation upon the meaning of the word sectarian was central to power games successfully played by nativist Protestants in the public arena throughout the 19th and 20th centuries.

“[I]t was an open secret that ‘sectarian’ was code for ‘Catholic,’” noted Justice Thomas for the court plurality in Mitchell v. Helms.

Such flimflam over “sectarianism” had serious political utility — first proven before the Civil War, in the successful bid of Horace Mann and his liberal Protestant allies to assert control over Massachusetts community schools.

As Boston University Professor Charles L. Glenn showed in his massively documented The Myth of the Common School, Mann and his allies believed their own, liberal, Unitarian beliefs were the true Christianity, while those of orthodox, traditional Trinitarian Christianity needed to be suppressed.

Mann and his small group of elitists, wrote Glenn, believed

…that they were preserving the essence of Christianity, purged of “sectarian” and divisive doctrines which — they argued — were no part of the message of Jesus. This essential Christianity could and should be taught in the common schools, since it represented a “religion of heaven” to which no right-minded parent could object …

Thus, observes Glenn, the quarrel that Mann and his liberal Protestant colleagues had “with orthodox Protestant and (a little later) with Roman Catholic opponents” had to do with the doctrinal content of religious education in the common schools, rather than with whether such religious education was necessary.

Notably, in Mann’s annual reports as secretary of the Massachusetts Board of Education for the Years 1845-1848, he vehemently denied any attempt “to exclude religious instruction from school” and affirmed as “eternal and immutable truths” that the public schools’ “grand result in practical morals is a consummation of blessedness that can never be attained without religion.”

So Mann and his group were merely enthusiasts for yet another religious creed — one with which they wanted to inculcate American youth.

One reason they succeeded in capturing K-12 education in Massachusetts and other states was because the Unitarianism they favored was a sort of least-common-denominator Protestantism. Doctrinally innocuous, it lent itself especially well to campaigns disparaging the more-defined and distinct traditional creeds as “sectarian.”

In reality, however, only a handful of New England intellectuals seriously subscribed to the bland, Unitarian residue of Protestantism that Mann’s state seminaries intended teachers to instill in common-school students.

The credo of the common-school zealots, therefore, was entirely as narrowly sectarian as the Calvinist doctrines that had stung Mann as a child and which he worked to suppress, using the clout he’d accumulated in Massachusetts state government.

Notwithstanding the reality that their own small clique fully qualified as a “sect,” Mann and his allies found that the “sectarian” epithet had great utility. Because of the word’s multiple nuances, it was uniquely useful if your object was to divide and conquer local religious communities and shift control over schools away from those communities and into your own office at the state capitol.

Speaking to more secular Massachusetts citizens tired of all religious bickering, you could easily signal that state government was of a similar mind, and would use its power to exclude such doctrinal bickering and proselytizing from all schools.

This was harnessing sectarianism understood as religion per se.

On the other hand, when speaking to Protestants who believed Christian values should be prominent in the state’s classrooms, you could emphasize your agreement, and indicate that only notions not common to Protestants would be excluded from the state’s classrooms — doctrines, for example, of atheists, “Papists” and strict Calvinists.

This was harnessing sectarianism defined as “those weird religions other than the enlightened beliefs that you and I share.”

Because the meaning of “sectarian” is, thus, equivocal, it’s a term made to order for politicians facing ticklish situations — such as when enraged nativist activists demand state discrimination against some religious minority they fear.

Throughout the deliberations over the legal challenge to Nevada’s “Little Blaine Amendment,” such equivocation was on full display — by attorneys on both sides of the question and also, ultimately, by the state Supreme Court itself.

Take the argument advanced by the orphanage’s attorneys — that voters had only intended to block public funds going to non-Christian purposes.

Yes, non-Christian creeds can, easily enough, be called “sectarian.” To so limit the term’s meaning, however, required the attorneys to ignore all the other much more numerous possible references of the term — including the meaning then dominant in America: Catholic.

Equivocation was also apparent in the argument advanced by the attorney general. Attempting to protect his case from the objection that Blaine-style amendments were, in truth, a sham rationale for state discrimination against Catholics, he ignored all dictionary meanings for “sectarian” that reference the dissenting beliefs of a minority vis-à-vis those of a majority.

Those meanings, after all, make it extremely difficult to countenance the AG’s assertion that “The framers of our constitution understood the word sectarian to mean all religious denominations.” (Emphasis added.)

In fact, Nevada’s 1864 constitution itself had been crafted within the rising anti-Catholic tide, which had begun with Horace Mann and the common-school movement and by the time Congress passed the Nevada Enabling Act had already become a powerful force.

The 1882 Nevada Supreme Court at least acknowledged that multiple definitions of “sectarian” were possible:

In this case there is, in one sense, no ambiguity. It is plain that no public funds can be used for sectarian purposes; but it is not plain, from the amendment itself, what the people meant by the words “sectarian purposes.”

The court, however, never deigned to confront the question whether state discrimination against “sectarian purposes” might itself pose constitutional problems.

Instead, the court announced that, to determine what had been meant by the two legislatures that had passed the amendment and the public that approved it at the ballot box, it would follow some counsel drawn from Thomas M. Cooley’s encyclopedic treatise on constitutional limitations upon state legislative power, and contemplate “the object to be accomplished….”

Notably, although the 14th Amendment had been a part of the federal constitution for over a dozen years, the justices never addressed the question of whether the new text before them was itself consistent with the newly expanded purview of the U.S. Constitution.

Unfortunately, it would take the U.S. Supreme Court itself many decades to fully articulate the consequences for the states of the 14th Amendment’s Equal Protection clause.

It wasn’t, however, that Cooley’s did not contain good counsel for the justices. There was, for example, the citation from Daniel Webster in Dartmouth College v. Woodward: “Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.”(Emphasis added.)

Nevertheless, immediately presuming the constitutionality of the as-yet undeciphered new Section 10 — whatever it might mean — the court continued:

With the view of gathering [the words’] meaning, their intention in that respect, and of ascertaining whether this case comes within the constitutional prohibition, we shall examine the history of the state in relation to appropriations…

Unfortunately, breaking the statement into its actual elements reveals, beneath the portentous phrasing, some seriously incoherent reasoning:

  1. The court acknowledges it does not know the meaning and intent of the “sectarian purposes” term.
  2. It follows, therefore, that it does not know what the amendment is intended to proscribe.
  3. In order to “gather” the term’s meaning and intent, the court then announces, it will “ascertain” whether the case before it “comes within the constitutional prohibition…”
  4. But the constitutional prohibition is itself what is not yet known!

The court’s “reasoning” here — behind the fog of incoherent syntax — was circular: It announced it would determine what was to be prohibited by “ascertaining” whether the case before it comes “within the constitutional prohibition” the court had just acknowledged it did not understand.

If you don’t understand what A is, how can you determine whether B fits within it?

Behind the grandiloquent yet empty judge-speak was a transparent political intent: To quickly show the mobilized and zealous anti-Catholic forces in the state that Nevada’s elected Supreme Court justices were with them.

Evidence for this is that the judges, to answer the less-than-coherent question they had initially posed, then went looking, in effect, for whatever had been making people angry:

And stating first the result of our investigation, we find that, with one exception, petitioner has been, and is, the only applicant for state aid, where the question of sectarianism could have been raised, since the adoption of the constitution….

Upon the above facts alone we are strongly impressed with the idea that, in the minds of the people, the use of public funds for the benefit of petitioner and kindred institutions, was an evil which ought to be remedied, and that petitioner’s continued applications greatly, if not entirely, impelled the adoption of the constitutional amendment.

* * * *

One year after the court’s State v. Hallock decision, the Nevada Orphans Asylum still housed some “75 orphans and 50 half-orphans,” according to the 1883 Sadler’s Catholic Directory.  And the sisters’ orphanage and school would continue its social and educational services to the people of Virginia City and western Nevada until 1897. By then, depleted ore veins and shrinking population had reduced the town to a shadow of its former size and glory.

The Hallock decision, however, has lived on in Nevada law, and has never been seriously reconsidered by the state Supreme Court — notwithstanding the expanding, if sometimes controversial, scope of 14th Amendment jurisprudence throughout the 20th Century.

Those U.S. Supreme Court holdings impose a minimum standard to which each state must adhere. Thus, any state law — including a state constitutional provision — that appears to needlessly discriminate against citizens of a defined group must withstand strict-scrutiny review under the federal constitution, even by state courts.

The Hallock interpretation of the Article 11, Section 10 provision, for example, arguably subjects parents of religious faith to an undue and discriminatory financial burden.

Not only must they fund, through their taxes, a secular and often dysfunctional public education-factory system that by law discriminates against their values and also frequently endangers their children. These parents must also bear yet a second financial burden, should they take seriously their responsibility to provide their children with an appropriate and morally sensitive education.

Today, the Hallock precedent is the strongest argument available to the two militantly secular organizations — the American Civil Liberties Union and Americans United for Separation of Church and State — that seek to prevent Nevada families from fleeing the state’s dysfunctional monopoly on K-12 education.

As the record shows, however, the Hallock precedent is a weak reed — essentially citing popular prejudice against a minority to justify governmental discrimination against that same minority.

Steven Miller is managing editor of Nevada Journal, a publication of the Nevada Policy Research Institute. For more in-depth reporting visit http://nevadajournal.com and http://npri.org.

Steven Miller

Senior Vice President, Nevada Journal Managing Editor

Steven Miller is Nevada Journal Managing Editor, Emeritus, and has been with the Institute since 1997.

Steven graduated cum laude with a B.A. in Philosophy from Claremont Men’s College (now Claremont McKenna). Before joining NPRI, Steven worked as a news reporter in California and Nevada, and a political cartoonist in Nevada, Hawaii and North Carolina. For 10 years he ran a successful commercial illustration studio in New York City, then for five years worked at First Boston Credit Suisse in New York as a technical analyst. After returning to Nevada in 1991, Steven worked as an investigative reporter before joining NPRI.

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