Coming on the heels of the uber-textualist opinion in Bostock, it is especially noteworthy that the Court as well as the dissenters in Espinoza ignored it — the text that is. As the Chief Justice wrote in the opening paragraph of the Court’s opinion, the Montana constitutional provision at issue barred public aid to any school “controlled by a ‘church, sect, or denomination’”. [My emphasis]. Neither the word “religion” nor cognates (such as “religious”) appears anywhere in the text of the state law. The Court and each of the Justices who wrote separately nonetheless treated the text as if it said “religion,” instead of “church, sect, or denomination.” “Religion” and “denomination” evidently are synonyms, as far as the Court is concerned. In fact, they are not. And they surely were not used as synonyms by precisely those 19th-century public figures whose actions the various Justices examined at length in their Espinoza opinions.

In general (and here quoting from historian Elwyn Smith’s fine work, Religious Liberty in the United States), “sect” was then predominantly used with respect to the various divisions within Christianity. It referred to “the spirit of quarrelsomeness and schism, precianism in theology, and refusal to collaborate in common evangelical enterprises.” “Sect” was almost synonymous with “denomination,” and it indicated the differences between, say, Presbyterians and Methodists. Any doubt that Catholicism was included within language like Montana’s — doubt arising from, among other sources, that Church’s refusal to consider itself a “sect” or a “denomination” — was removed by including the word “church.”

Saying that a school “controlled” by a “sect,” “denomination,” or “church” was ineligible for state aid did not, therefore, amount to saying — as the Espinoza Justices uncomprehendingly assumed it did — that “religious” or “religiously-affiliated” schools were ineligible. Indeed, one intended effect of “Blaine Amendments” such as Montana’s was to stymie aid to Catholic schools (which were indeed “controlled” by that “church”) while permitting it to “non-denominational” (that is: Protestant) private schools “controlled” by a board of directors which probably included a few ministers and some others among the “best men” of the locale. The non-denominationally Protestant public schools carried on unmolested by Blaine amendments, too.

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A glance at the Blaine amendment confirms all this. The original version introduced by Congressman James G. Blaine in the House in December 1875 stated that “no money raised by taxation in any state for the support of any public schools or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect.” [Emphasis added here, and hereafter.] The version passed in the House of Representatives (by a 180–7 margin, with 98 abstentions) read in relevant part: “under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creed or tenets of any religious or anti-religious sect, organization, or denomination shall be taught.” The final sentence of this version stipulated, however, that “[t]his article shall not be construed to prohibit the reading of the bible in any school or institution.”

A different version barely failed to attract the necessary two-thirds votes in the Senate. (The tally was 28–16 in favor.) New Jersey senator Theodore Freylinghuysen explained how the distinction which an oblivious Court missed was central to the whole enterprise: “Institutions supported by the money of all persuasions . . . are not to be made schools for teaching presbytrianism, or catholicism, Unitarianism, or Methodism, or infidelity, or atheism, and this article says so. But this article goes no further. There is nothing in it that prohibits religion as distinguished from the particular creeds or tenants of religious and anti-religious sects and denominations being taught anywhere.”

This “Blaine amendment” failed. Yet “Blaine amendments” proliferated. Starting with Colorado in 1876, Congress made it a condition of admission of new states to the Union that the proposed state constitution ban public aid to “sectarian” schools. The Congressional enabling act for Washington, for instance, required that the state constitution include a provision for the establishment of public schools “which shall be . . . free from sectarian control.” [My emphases.] Montana’s provision at issue in Espinoza owes its enactment to this same requirement. “Religion” as such is no part of this parade of laws.

Someone weaned on Bostock’s textualism might reply by parallel argument. Bostock reasoned that “sex discrimination” necessarily included the “transgendered” because the meaning of “transgendered” depended on the antecedent meaning of “sex”: a “transgendered” man is a woman who rejects her sex and “identifies” as male. In Espinoza the Court might have assumed (it did not say) that a body of people cannot be a “denomination”, for example, without being antecedently “religious”; after all, “sect” denotes a body of believers!

That latter point is true enough. But the whole mode of reasoning fails here as a way of reading laws, just as surely as it did in Bostock. For by these lights, a statute which stated that “children must be off the streets by midnight” would mean that everyone had to be home by then. After all, one cannot be a “child” without being antecedently a person; hence, “children” equals “all persons.”

I do not emphasize this distinction between “sect” and “denomination” and “church,” on the one hand, and religion on the other, in order to criticize the result in Espinoza. In fact, it is the right result (though not for the right reasons). I do not stress the distinction either to criticize Bostock. That case richly deserves to be criticized. But I do that (with my collaborator Dr. Paul McHugh) elsewhere. I emphasize the critical distinction between “sect” and “religion” for a different reason. It is that our whole constitutional tradition pertaining to church and state, at least up until the Supreme Court started in 1947 to obliterate that tradition, is unintelligible without it.