Hein v. FFRF - A Contradiction from the Religious Right
Chris Rodda printable version print page     Bookmark and Share
Sun Mar 04, 2007 at 06:53:57 PM EST

One of the first things that occurred to me while reading the amicus briefs filed in Hein v. Freedom From Religion Foundation was a contradiction between the arguments for the Hein side and something that, over the last six decades, has appeared in numerous religious right American history books, as well as an opinion of a Supreme Court justice.

Since shortly after Everson v. Board of Education in 1947, a tactic of religious right American history authors has been to blur the distinction between funds specifically appropriated by Congress for religious organizations and funds from non-specific appropriations that ended up, through departments of the Executive branch, going to religious organizations. When it suited their purpose to be able to say that there is a long history of Congressional appropriations that aided religious organizations, all appropriations, including those from non-specific acts that indirectly aided these organizations and even for treaty obligations, were all lumped together and presented as appropriations by Congress for religious purposes. Now, however, because they are arguing against a tax-payers standing to challege spending by executive departments, they suddenly want a clear distinction between executive expenditures and specific appropriations by Congress.

The tactic of lumping all government expenditures into the same category began with J. M. O'Neill in his 1949 book Religion and Education Under the Constitution. This was one of the first books to appear in the wake of Everson for the purpose of disputing the validity of the phrase "separation between church and state," and has frequently been cited as a source in religious right American history books, as well as the opinions of certain Supreme Court justices. O'Neill's lack of distinction between specific appropriations by Congress, indirect spending by executive departments, and treaty payments was repeated in 1982 by Robert Cord in his book Separation of Church and State: Historical Fact and Current Fiction. Both O'Neill's and Cord's books were cited by Justice Rehnquist as sources for the following statement in his dissenting opinion in 1985 in Wallace v. Jaffree.

"As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations. Typical of these was Jefferson's treaty with the Kaskaskia Indians, which provided annual cash support for the Tribe's Roman Catholic priest and church. It was not until 1897, when aid to sectarian education for Indians had reached $500,000 annually, that Congress decided thereafter to cease appropriating money for education in sectarian schools....This history shows the fallacy of the notion found in Everson that "no tax in any amount" may be levied for religious activities in any form."

So, if Justice Rehnquist considered expenditures by executive departments, which came out of appropriations that were not specifically earmarked by Congress for religious organizations, to be proof that the "notion" that "no tax in any amount" may be levied for religious activities was a fallacy, wasn't he saying that these executive expenditures from general appropriations were no different than specific appropriations by Congress? Isn't Rehnquist's statement, variations of which are found in many religious right history books, a complete contradiction of the arguments used in Hein v. Freedom From Religion Foundation against a tax-payer's standing to challenge expenditures by executive departments?

Before going any further, an explanation of why statements such as Rehnquist's always rely solely on examples regarding Indians. The reason for this is simply the availability of material that can be misrepresented. There were no actual instances, for example, of the early Congresses passing legislation that aided sectarian schools for children who were American citizens. There was, however, a good deal of cooperation between the government and the Indian mission schools of the 1800s. Although the government's reasons for this were always secular, the fact that this cooperation existed means there are actual acts, reports, etc., that can be misrepresented or misquoted to support claims that the government aided sectarian schools. The same is true of Indian treaties. Congress never funded the building of churches for the American people. It did, however, appropriate funds to fulfill treaty provisions, which occasionally included things like the building of a church. The examples used by Rehnquist, of course, doesn't change his opinion that all government expenditures, whether from direct appropriations by Congress or indirect spending by executive departments from general appropriations, are funded by taxes.

One of the examples use by Rehnquist is an Indian treaty. The only similarity between Indian treaties and today's faith based spending, which is that treaty obligations were paid by an executive department out of a general appropriation. In the early days of Congress, the purpose of the funds for Indian treaties was almost never specified in an appropriations bill. Congress simply added up the payments due for the annuities and other provisions from all the treaties and included enough money to cover them in the annual appropriations bills for the expenses of the government. This lump sum was included in the appropriation for the Department of War, with no description other than it being the part of this appropriation designated for the Indian Department. While this similarity is important in that it was used by Rehnquist as an example to support his opinion that it made no difference whether funding for a sectarian purpose came from a specific appropriation or a general appropriation, there were two government programs in Rehquist's timeframe -"[a]s United States moved from the 18th into the 19th century" - that can be clearly compared to today's faith based initiatives.

The first was An Act making provision for the civilization of the Indian tribes adjoining the frontier settlements, passed in 1819.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purpose of providing against further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby authorized, in every case where he shall judge improvements in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent, to employ capable persons of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing, and arithmetic, and in performing other such duties as may be enjoined, according to such instructions and rules as the President may give and prescribe for the regulation of their conduct, in the discharge of their duties.

Sec. 2. And be it further enacted, That the annual sum of ten thousand dollars, and the same is hereby appropriated, for the purpose of carrying into effect the provisions of this act; and an account of the expenditure of the money, and proceedings in execution of the foregoing provisions, shall be laid annually before Congress.(1)

Although Justice Rehnquist, to suit the point he was trying to make in his Wallace v. Jaffree opinion, tried to give the impression that new appropriations for sectarian Indian education were regularly made and steadily increased throughout the 1800s, this appropriation for $10,000, an amount that did not change for over fifty years, was the only such appropriation made by any of the early Congresses. Funding from this appropriation did go to Indian schools run by missionary societies, but only as a means of accomplishing the object of the act - instructing the Indians in agriculture. As the following, from the circular sent to the missionary societies by the Department of War on September 3, 1819, clearly stated, this grant money was to be used "to effect the object contemplated by the act of Congress."

In order to render the sum of $10,000 annually appropriated at the last session of Congress for the civilization of the Indians, as extensively beneficial as possible, the President is of the opinion that it ought to be applied in co-operation with the exertions of the benevolent societies, or individuals, who may choose to devote their time or means to effect the object contemplated by the act of Congress. But it will be indispensable, in order to apply any of the sum appropriated in the manner proposed, that the plan of education, in addition to reading, writing, and arithmetic, should, in the instruction of the boys, extend to the practical knowledge of the mode of agriculture, and such of the mechanic arts as are suited to the condition of the Indians; and in that of the girls, to spinning, weaving, and sewing. It is also indispensable that the establishment should be fixed within the limits of those Indian nations who border on our settlements. Such associations or individuals who are already actually engaged in educating the Indians, and who may desire the co-operation of the government, will report to the Department of War, to be laid before the president, the location of the institutions under their superintendence, their funds, the number and kind of teachers, the number of youths of both sexes, the objects which are actually embraced in their plan of education, and the extent of the aid which they require; and such institutions as are formed, but have not gone into actual operation, will report the extent of their funds, the places at which they intend to make their establishments, the whole number of youths of both sexes which they intend to educate, the number and kind of teachers to be employed, the plan of education adopted, and the extent of the aid required.(2)

There are two parallels between the appropriation of 1819 and today's faith based initiatives. The first is that the act of Congress did not specifically mention the funding of religious organizations, but left the distribution of the funds up to the president. The second is that a decision was made by the executive branch that this funding, which wasn't enough to establish even a few public schools for the Indians, could be used more effectively by giving grants to existing schools, almost all of which were run by missionary societies.

This program continued for over fifty years with few problems. For one thing, unlike today's faith based initiatives, nobody saw these grants as violating the First Amendment because the schools were outside the boundaries of the United States, the students were not American citizens, the teachers were not employees of the government, the object of the act was completely secular, and, as noted in the following excerpt from an1824 report of the Indian Affairs Committee, there were no signs that the money was being misused.

No fanciful schemes of proselytism seem to have been indulged. They formed a correct estimate of the importance of their undertaking, and pointed to the most judicious means for the accomplishment of their wishes. Since the passage of the law, hundreds and thousands have been encouraged to contribute their mite in aid of the wise policy of the government. However the various denominations of Christians may differ in their creeds and general doctrines, they all unite in their wishes that our Indians may become civilized. That this feeling almost universally prevails, has been declared in language too unequivocal to admit of doubt. It has been seen in their words and in their actions.

The committee believe that such demonstrations are not to be regarded lightly; that the National Legislature will treat them with the highest respect. If a sectarian zeal had had any agency to produce this general interest, it would be less entitled to serious consideration.(3)

The amount of money was also too small to cause any real jealousy or competition among the religious sects. Some schools received as little as $50 a year. To the missionary societies, however, the amount of the grants was unimportant. They knew that any appropriation for Indian education would spark an increase in private donations to their schools. People who considered efforts to educate the Indians frivolous might reconsider this if they saw that the government was taking it seriously enough to provide funding for it, and, as the Indian Affairs Committee reported in1824, this is exactly what happened.

Unlike the act of 1819, the next attempt by the government to use religious societies to do the work of the government was extremely problematic, and can best be described as a faith based initiative gone bad.

When President Grant took office in 1869, one of his top priorities was a complete overhaul of the country's Indian policies. A big part of what was known as Grant's "Peace Policy" was to rid the Indian agent system of corruption. Grant's idea was to have missionaries who were already established among the Indians oversee the Indian agencies. The missionary societies would nominate men to fill the Indian agent and other positions within their agencies, submitting the names to the Secretary of the Interior. This plan was first tested on a small scale by putting a few of the Indian agencies under the control of the Quakers. While this experiment was going on, the rest of the agencies were turned over to the military. Once the Quaker experiment was deemed a success, a law was passed that had the effect of removing military control over the other agencies. As part of an act reducing the size of the military, army officers were made ineligible to perform the duties of any civil position, which included the position of Indian agent. This meant that any army officer who was temporarily in control of an Indian agency could only continue to act in that capacity if he resigned his commission, something no officer was likely to do. This cleared the way to put the rest of the agencies under the control of missionaries.

As soon as they began to implement this plan, Congress made a mistake that pretty much guaranteed its failure. Of the large numbers of Indians who had converted to Christianity, the majority were Catholic, and were as attached to their religion as any other Catholics. Based on the religious make-up of each tribe and the locations of the missions that already existed, thirty-eight of the seventy-three Indian agencies should have been put under the control of the Catholics. Completely disregarding this, the Board of Indian Commissioners, an advisory board appointed by Congress to oversee the program, and composed entirely of Protestants, recommended that all but seven of the agencies be assigned to Protestants. This went against President Grant's guideline that each agency be assigned to the mission already established there, but the Board of Indian Commissioners found a way to get around this. In all of the many cases in which a well established Catholic mission and a newer, competing Protestant mission existed within the same agency, they picked the Protestant one.

This whole plan, particularly considering that it involved schools, was very out of character for Grant, who, in one of his annual messages, urged Congress to pass a constitutional amendment prohibiting the teaching of any sectarian tenets in any public school in any state. The following remarks were made by Grant in an 1876 speech.

Encourage free schools and resolve that not one dollar of the money appropriated to their support shall be appropriated to the support of any sectarian school; that neither the state or nation, nor both combined, shall support institutions of learning other than those sufficient to afford to every child in the land the opportunity of a good common-school education, unmixed with sectarian, pagan, or atheistic dogma.

Leave the matter of religion to the family altar, the church, and private schools entirely supported by private contributions. Keep the church and state forever separate.(4)

Whatever the reason for Grant's inconsistency when it came to Indian schools, the result of this part of his Peace Policy was an increase in Indian hostilities. Because of the sectarian favoritism of Congress and the Board of Indian Commissioners, thousands of Catholic Indian children were suddenly transferred from Catholic to Protestant schools. Complaints from parents who wanted their children in Catholic schools were completely ignored by the Indian agents, who, of course, were almost always members of whatever Protestant denomination controlled their agency. The agents were also loyal to the missionary societies because the same societies that had nominated them for their jobs also had the power to recommend their removal.

Grant's plan did little to improve the Indian agent system. The agents chosen by the religious denominations weren't much better than the old agents. Some were just as corrupt, while others were honest, but incompetent. The only good thing to come out of the new system was a bit of public outrage at the government's infringement on the Indians' right to religious freedom. Prior to the Indian agencies being put under denominational control, agents assigned where there were missions of religions other than their own often interfered with and tried to undermine the work of the missionaries. In some cases, they even succeeded in driving these missions out of their agencies. Grant's plan, under which the agents were almost exclusively members of whatever denomination controlled their agency, solved this problem, but created a new problem. On a number of occasions, Catholic missionaries, attempting to visit Catholic Indians, were expelled from the grounds of Protestant agencies. When reports of these incidents began appearing in the newspapers, the government's policy of forcing Indian children into sectarian schools against their parents' wishes became widely known, and the right of the Indians to religious freedom became a big issue among the American people, Catholic and Protestant alike. Eventually, in 1881, the government ordered that all missionaries have access to all agencies.

In 1874, the Catholic church opened an office in Washington D.C. called the Bureau of Catholic Indian Missions to collect and disburse funds from private donations, and, more importantly, to lobby for a fair proportion of the Indian schools. At this point, Congress had not appropriated any money for Indian education since the appropriations of 1870 and 1871. For the most part, the schools were funded by private donations, and in some cases by treaty payments or tribal education funds. Not long after it opened, the Bureau of Catholic Indian Missions began lobbying for what became known as the contract school system. Under this system, the government paid a certain amount for the living expenses of each student in a contracted private school. The government had already entered into contracts with a few schools, and the Catholics immediately saw that a per capita contract system would give them an edge. Before applying for a contract, a school had to be built and students enrolled, and the Catholics had the resources to build more schools and attract more students than the other denominations.

In 1876, Congress made its first appropriation for Indian education in five years - $20,000 "for the support of industrial schools and other educational purposes for the Indian tribes." An act of 1871 had made Indian tribes within the territory of the United States no longer independent nations, so students from these tribes were considered wards of the United States. Students born in Indian territory could not receive this aid. All other money to operate the contract schools &endash; for teachers, buildings, etc. - still came from private donations, as did the living expenses of the students who didn't qualify for the government aid.

Appropriations for Indian education increased gradually over the next few years, reaching $75,000 in 1880. Over the next decade, they became much larger, going from $125,000 in 1881 to $1,300,000 in 1890. These dramatic increases, however, had little to do with the sectarian contract schools. Most of this additional funding was for the growing system of government-run schools.

Justice Rehnquist's claim that it "was not until 1897, when aid to sectarian education for Indians had reached $500,000 annually, that Congress decided thereafter to cease appropriating money for education in sectarian schools" was a bit off. Appropriations for sectarian contract schools peaked from 1889 and 1891, the only years in which they reached $500,000.(5) The total appropriations for contract schools exceeded $500,000 in a few other years, but not all contract schools were sectarian. These other years, however, were also prior to 1897. The last year in which the total amount appropriated was $500,000 or more was 1893. In 1897, the total appropriation was only $212,954, of which $156,754 went to sectarian schools.(6)

Religious right authors have a reason for placing the high point for sectarian contract school funding later than it actually was, usually making it 1897, sometimes 1896. This allows them to imply that this funding was discontinued because of the amount of money being spent, rather than giving the real reason, which, as already mentioned, was sectarian rivalry. The Indian appropriation acts of 1896 and 1897 both declared it to be "the settled policy of the government to hereafter make no appropriation whatever for education in any sectarian school." If these authors gave the real date of 1891 as the high point for the funding, they would need to explain why Congress suddenly found it necessary to make this new policy in 1896. By this time, sectarian school funding had already been reduced by more than forty percent from its high point in 1891. The claim that the funding was discontinued because the amount of funding had become too high doesn't make sense unless the date of the government's policy change coincides with the date that the funding was at its highest. The amount of funding was never an issue. In fact, it cost far less for the government to pay the living expenses of a student in a contract school than it cost to keep a student in a government-run school where the government had to pay for the buildings, teachers, and everything else. Funding to sectarian contract schools ended because the Catholics started getting more of the funding than the Protestants, and the Protestants didn't like this.

Beginning in 1883, representatives of the various Protestant Indian mission societies had been holding yearly conferences with the all-Protestant Board of Indian Commissioners at a Lake Mohonk, New York resort. These conferences also included various government officials and politicians, and members of anti-Catholic organizations like the Indian Rights Association. The idea of abolishing the contract school system had been discussed at these conferences since the first signs that the Catholics were pulling ahead, but those who wanted to put an end to the whole system were in the minority until the end of the 1880s. The Protestants had blamed the increase of Catholic Indian schools on Grover Cleveland's Democratic administration, under which more Catholics were appointed to the Indian Bureau, and assumed that this Catholic favoritism would end when Republican Benjamin Harrison was elected in 1888.

Shortly after President Harrison took office in 1889, representatives of the Protestant Indian mission societies met with Secretary of the Interior John Noble. Since it was unlikely that any existing contracts would be taken away from the Catholics, they wanted the government to increase the number of contract schools and give the new contracts to Protestants. The recommendations made to Noble by the societies were printed in the May 1889 issue of the Congregationalist magazine The American Missionary. One of these recommendations was that the contract school system be expanded.

3. That the co-operation of the Government with the missionary societies in what are known as Contract schools should be continued and enlarged. We believe that no better teaching has been afforded to the Indians than that given in these Contract schools. The educational qualifications of the teachers, together with their disinterested and self-denying characters and their religious influence and instruction, render them pre-eminently fit for their places and successful in their work. The experience of the past and the testimony of all unprejudiced persons bear witness to this fact.(7)

A few months later, at the October 1889 Mohonk conference, the leaders of these same societies did a complete180 and decided to support the plan of Thomas Morgan, the new Commissioner of Indian Affairs, under which there would be no new contracts, and the existing contract schools would be gradually replaced by government schools. Rumors about Morgan's plan had been in the newspapers prior to the conference, and the leaders of the missionary societies no doubt anticipated that the decision of the conference would be to support the plan. But, they had just reported to their church memberships a few months earlier that they supported enlarging the contract school system. They couldn't just suddenly report their support of a plan that opposed this, so they began by raising some questions about the system, and slowly worked their way up to calling for an end to contract schools.

The following is how the story progressed over the next few years in The American Missionary, beginning with a hint in the October 1889 issue that the system might be unfair to Protestants.


The public has been made aware through the press recently that the United States government aids the Roman Catholics to support 2,098 Indian pupils and assists all Protestant denominations in the support of only 1,146 pupils. Why is this discrimination, and who is to blame for it? If the Roman Catholics give for plant, teachers' salaries, etc., an amount proportionately greater than given by the Protestants, then the Protestants have themselves only to blame, and the difficulty can be remedied by their giving an equal amount. But if, on the other hand, the Government gives in proportion more to the Roman Catholics than it does to the Protestants, then the Government is showing a wholly unjustifiable partiality. Figures are in order on this subject. Who will furnish them?(8)

In September 1890, they began broaching the subject of withdrawing from the contract school system because of the Senate's favoritism towards Catholics.


The recent action of the United States Senate on the Indian Appropriation Bill presents a marked instance of denominational favoritism. In 1889, the Roman Catholics received from the government for Indian Schools $356,000 as against $204,000 for all other denominations.

Not content with this, the Roman Catholics recently urged the appropriation of large sums to three additional schools. The Indian Bureau, anxious to avoid sectarian discussion by still farther increasing the disparity, declined to enter into contract for those schools. But the Roman Catholics maintain an active Bureau of Missions in Washington which has been constantly pushing their schools upon government support; and when the Indian office declined, this Mission bureau went to the House of Representatives and obtained the insertion of amendments granting aid to these three schools. The Senate Committee, unwilling to increase the existing preponderance of appropriations to Roman Catholic schools, struck out two of these amendments, but the Senate itself adopted them all, and the bill was passed in that form, thus granting in full the added demands of the Roman Catholics.

If this is not sectarian favoritism, we know not what is. Why should this one denomination be aided beyond all others? Is a Roman Catholic Mission Bureau to dictate measures to the House of Representatives and dominate the Senate? We believe in "contract schools," but rather than have a foreign hierarchy rule in National legislation, we should prefer to receive no Government aid for our Indian schools. Impartial legislation is better than money.(9)

In 1892, the Methodists, Episcopalians, and Presbyterians all announced that they would no longer be accepting any government funding. The Congregationalists soon joined them, publishing the following resolutions in the December 1892 issue of The American Missionary.

Whereas, The system known as "contract schools," in connection with Indian work, is open to very serious abuse; and

Whereas, Government schools have now reached a position as to equipment, methods and general efficiency, where the common school education among the Indians may be safely and wisely entrusted to them; therefore

Resolved, First, that public money expended upon the education of Indians ought to be expended exclusively by government officers upon government schools.

Resolved, Second, that the practice of appropriating public money for the support of sectarian schools among the Indians ought henceforth to cease.

Resolved, Third, that it is wise for the A.M.A. to join in the purpose expressed by other great ecclesiastical bodies, the Methodist General Conference, convened at Omaha, May 9th, 1892, the Presbyterian General Assembly, which met at Portland, Ore., May 23d, 1892, and the Episcopal Convention at Baltimore October 19th, 1892, to decline to seek or accept any subsidy from the government, and that henceforth this Society act in conformity with this purpose.(10)

An 1893 appeal to the Congregational churches for donations to replace the government funding gave "obedience to the principle of separation between Church and State" as the very noble reason that the societies were giving up this funding.

It was felt at Hartford that a question of principle was at issue. The great Methodist, Presbyterian and Episcopal Communions had taken a stand against Government aid to denominational schools. It was felt to be time that Congregationalists took the same American position. The Association took it, trusting God and the churches. We gave up money for the sake of a principle. Congregationalists are not the men to repudiate that principle, or let our grand work suffer because we have taken that position. If every man will give to our A.M.A. treasury this year, one quarter more than he gave last year, our work will not suffer, and we pledge ourselves that it shall even advance in the Indian department as well as others.

The emergency is peculiar and peremptory. The logic of it is decisive upon this point of special obligation. You, yourselves, brethren of the ministry and of the churches, have voiced a command by your special committees, a command for advance in the Indian work. But on the very threshold of such advance we find ourselves counseled and compelled by the action at Hartford to surrender twenty-two thousand dollars in obedience to the principle of separation between Church and State.(11)

1. Richard Peters, ed., The Public Statutes at Large of the United States of America, vol. 3, (Boston: Charles C. Little and James Brown, 1846), 516-517.
2. American State Papers: Indian Affairs, vol. 2, (Washington D.C.: Gales and Seaton, 1834), 201.
3. ibid., 458-459.
4. The Annals of America, vol. 10, (Encyclopedia Britannica, 1976), 365.
5. These appropriations were for the fiscal years 1890, 1891, and 1892, i.e. the appropriation made in 1889 was for the fiscal year ending June 1890.
6. Annual Reports of the Department of the Interior for the Fiscal Year Ended June 30, 1897, Report of the Commissioner of Indian Affairs, (Washington D.C.: Government Printing Office, 1897), 15.
7. The American Missionary, Vol. 43, No. 5, May 1889, 127.
8. ibid., Vol. 43, No. 10, October 1889, 279.
9. ibid., Vol. 44, No. 9, September 1890, 267-268.
10. ibid., Vol. 46, No. 12, December 1892, 427.
11. ibid., Vol. 47, No. 3, March 1893, 85.

Chris, I wanted to respond to this informative history before it scrolled too far down - but I first had to find a large space of time in which to read it.

The concern of American Protestants with Catholic missions to the indians goes quite far back - since Catholic France had long possessed much of the territory adjoining the colonies.

I believe you will find references prior to 1750 showing that a large motivator for New England missions was just this concern that too many of the indians just outside the colonies proper were being made into "superstitious papists."

This was only emphasized by the fact that almost all colonial expansion prior to the 1760s was into lands wrested from French control.  And the ex-French territories in the large Ohio watershed, opened by the Treaty of Paris, is a case in point.

A pro pos your 1819 documents, this whole dynamic was stirred up one hundredfold by the 1803 Louisiana Purchase.

It is this dynamic more than any other which came to a head with Grant's policy after 1869, which you mention, and the primary historical fact contributing to its controversy and its failures, which you also mention:

Of the large numbers of Indians who had converted to Christianity, the majority were Catholic, and were as attached to their religion as any other Catholics

Anyway, didn't want this "French Connection" missed when discussing the original Protestant motives behind the wall of separation.

Catholicism is, rightly, no longer "scary" to many Protestants in the old, irrational sense in which it used to be.  But the simple-minded revisionist historians of the far right ought to pause and consider that there was a time when they appreciated this wall, and clung to it gratefully.

As you point out at the end of your article

Thanks for being here.

God bless the whole world - - No Exceptions
by John Anngeister on Fri Mar 09, 2007 at 12:15:09 PM EST

and also for taking the time to read my lengthy post.  I'm a bit new to this type of forum, and am still trying to find a balance between providing more in-depth information than is usually found on the web and keeping my posts short enough to be read easily.

You're certainly right about there being a lot more to the Catholic/Protestant rivalries of the nineteenth century, as well as the early influence of the French among the Indians, and I do get into these other aspects of the subject a bit more in my book. I just confined this piece to the 1819 act and Grant's Peace Policy because of their similarities to today's faith based initiatives and the Hein case, and, as you can see, explaining even these two examples made for an excessively long post.

I'll probably write some separate pieces in the future about the other related stories, particularly those that, like the example at the end of this piece, show the invocation by religious organizations of the phrase "separation between church and state" when this is what suited their purpose.

by Chris Rodda on Sat Mar 10, 2007 at 12:10:39 PM EST

To return to the substance of your argument, I agree that Rehnquist implied an equal status -  as "tax" - to (1) general funds distributed by determination of the President and (2) funds  distributed (by the executive branch) at the express determination of Congress.

And that this would argue against the Administration's position in Hein.

It's only that I am troubled by the apparent dependence of the Chief Justice on the misrepresentations of "stupid history" by the right-wing establishment writers.

I need some clarification about whether this doesn't make Rehnquist's point simply moot.  - Although it would be some solace to achieve this by discrediting the fallacious history.

The difference between falsehood and fallacy is always a dilemma for me when examining the so-called intellectual efforts of the right.

I can never be sure whether they are lying or simply too dumb to penetrate an issue with a valid logic.

It would be a great help to me if you had the time to list here in a comment without any of the history your points A, B, and C, etc., about the similarities and differences between Bush's FBCI and the those precedents fallaciously invoked by Rehnquist (besides the point about the contradiciton, which I think I understand).

Thanks very much

God bless the whole world - - No Exceptions
by John Anngeister on Sat Mar 10, 2007 at 01:33:26 PM EST

I think you are having the same dilemma with this that I had when I initially set out to write about it, which is the question of whether or not the specific inaccuracies in Rehnquist's statement, which have to do with the amount of funding, make the inevitable by-product of this statement - his opinion that the source of all funding is taxes - a moot point. I gave this a lot of thought, and came to the conclusion that it doesn't. Hopefully, the following similarities and differences will clarify this a bit.

There are two major similarities between Rehnquist's examples and FBIC:

A. In almost all cases, particularly for early treaty provisions and the act of 1819, the funding came from general appropriations with the specific distribution left to the executive branch.

B. For both the act of 1819 and Grant's Peace Policy, it was decided that it was more expedient for religious organizations to accomplish the objectives of the acts or policies than for the government to do this.

There are a number of differences, some of which apply only to treaties, and others to the act of 1819 and Grant's Peace Policy:

A. Treaty payments, although sometimes used for sectarian education and other religious purposes, were not considered regular appropriations, as was decided in 1908 in Quick Bear v. Leupp.  Tribal funds were the interest on investments, and did not require any appropriation by Congress; treaty payments, although requiring an appropriation, were considered installment payments on the land purchased from the Indians by the government. So, treaties, although Rehnquist included one among his examples, have no similarities to FBCI except that the early appropriations for them were not specific.

B. There were no abuses of the funding from act of 1819, and there was some Congressional oversight, as I pointed out in my post with the example of the committee report from 1824. Grant's Peace Policy, on the other hand, is more similar to FBCI in that it demonstrated the inevitable problems that such a program are bound to create.

C. The big difference for all of Rehnquist's examples was that the ultimate recipients of the funding were not American citizens, which is what complicates things when it comes to use of these things as examples because most of this executive spending was not fundamentally unconstitutional. This, however, doesn't negate the fact that Rehnquist was of the opinion that both specific appropriations by Congress and spending by executive departments from non-specific appropriations came from the same source - taxes.

Rehnquist did include some fallacious history in the statement that I quoted, as he did throughout his Wallace v. Jaffree opinion, but in this particular quote, the inaccuracies were all related to the amount of funding and the time frame in which it was appropriated and spent.  The point he was trying to make, using the typical religious right tactic of exaggerating to make it appear that something was a common practice in the days of the founders and continued and/or increased for a long time after that, was that the federal government had funded sectarian education for many years.  But, the only examples he could find of this, as I mentioned in my post, were appropriations used for Indian treaties and Indian schools. This sort of blurs things, but I don't think these exaggerations, which had a separate purpose, render Rehnquist's overall point moot.

by Chris Rodda on Sun Mar 11, 2007 at 02:12:46 PM EST

This unpacking was a help to me.

I am beginning to wonder whether there are not only historical but Constitutional grounds for bracketing and disallowing the relevance of Rehnquist's Jaffree opinion not only vis-a-vis Jaffree (to Rehnquist's disgrace) but also in this case (to Hein's eventual disgrace, if he should appeal to it).

I think there is a Constitutional role for the President in the conduct of the Nation's treaties, and any distribution policies devised by an administration to satisfy its treaty conditions must be considered independent of our legislated domestic social programs.

That the funds distributed to religious organizations under the President's FBCI may be considered as taxation without representation stems from the fact that they are not in any amount over and above what has been legally appropriated for domestic social programs by Congress.

As you say, the ultimate recipients in all the treaty cases were not US citizens, and therefore the money was not in any way an entitlement, as it is in Hein v. FFRF.

To say nothing of the great travesty inherent in the fact (for me) that so many of the President's faith-based surrogates are receiving federal funds to "grow" by rank proselytization a brand of Christianity which I believe has been discredited theologically and soteriologically for over 100 years.

Or something.  Is there an attorney in the house?

God bless the whole world - - No Exceptions
by John Anngeister on Mon Mar 12, 2007 at 10:01:00 PM EST

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