Originally submitted on SSRN.

Abstract

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record.

Intriguingly, the Court and scholars have largely ignored an early governmental practice that directly bears on the historical understanding of the Establishment Clause: from the Revolution through Reconstruction, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Funds Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all personally participated in the partnerships. Virtually no one objected on constitutional grounds. This is the first Article to place these government-missionary partnerships in their cultural, political, and constitutional context and to thoroughly evaluate their implications for the history of disestablishment and contemporary doctrine.

The Article acknowledges that multiple overlapping factors may account for why no one raised a constitutional objection to the partnerships, including factors unique to “Indian affairs.” But it argues that the dominant reason was that elite white Americans shared a paradigm of social progress that equated republicanism, Christianity, education, and civilization. The practice dramatically qualifies the conventional wisdom that the quintessential example of an “establishment of religion” was the use of public funds to support religious groups. In fact, that opposition appears to have been aimed narrowly at taxes earmarked for churches and clergy salaries.

Although the implications of the practice, which was undoubtedly culturally chauvinistic, must be translated for a constitutional regime that prizes neutrality and voluntariness, this Article argues that the partnerships support the trajectory of the Court’s funding jurisprudence, with implications for Espinoza v. Montana Department of Revenue, currently pending before the U.S. Supreme Court.

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