Bending Blaine

The horrific shootings took place on a Saturday – the Jewish sabbath, or Shabbat.  April 27, 2019 also happened to be the eighth-and-final-day of Passover, which meant that the Chabad of Poway synagogue was filled with worshipers when the 19-year-old assailant entered the premises and began firing.  Minutes later, one congregant lay dead, and three others – including the congregation’s rabbi – had been wounded.  Shortly before committing his hate crime, the gunman had posted an anti-Semitic screed on the internet, in which he blamed Jews for the “meticulously planned genocide of the European race.”

California Governor Gavin Newsom was quick to respond.  Just two days after the shootings Mr. Newsom announced that he would be adding a sum of $15 million to the May revision of his proposed budget, to “help nonprofit organizations that are targets of hate-motivated violence.”  “We all must call out hate – against any and all communities – and act to defend those targeted for their religious beliefs, who they love or how they identify,” said the Governor. “An attack against any community is an attack against our entire state – who we are and what we stand for.”

The $15 million had a waiting legislative vehicle in the form of AB 1548, a bill authored by California State Assemblymember Jesse Gabriel (D. – Encino) proposing the establishment of a California State Nonprofit Security Grant Program (CSNSGP), to be administered by the Governor’s Office of Emergency Services (OES).  With strong public approval and bipartisan political support, the additional funding requested by the Governor easily made its way into this year’s budget, and Assemblymember Gabriel’s bill sailed through the Legislature without a hiccup.  An “urgency clause” permitted the program to take effect upon signature by the governor, an act that took place on October 11, 2019.

The new, state-funded security grant program was rolled out at lightning speed.  A series of training workshops and webinars was conducted in early November, and a deadline of December 9, 2019 was set for the submission of grant applications.  The short application window was most likely attributable to Assemblymember Gabriel desire to furnish evidence of widespread demand for the grants so as to assure the inclusion of continued, and possibly expanded funding for the program as the Governor prepares next year’s budget proposal, to be presented in early January.

One possible fly-in-the-ointment for some grant recipients emerges from the requirement that as a condition of the receipt of funds, all grantees must sign a set of written assurances that have yet to be specified.  This may, or may not become problematic for certain religiously-oriented entities, as prior assurances documents accompanying state-administered-but-federally-funded security grant programs required a promise to comply with various federal and state anti-discrimination laws from which religious institutions are currently exempt.  These include a commitment to comply with California’s Fair Employment Housing Act (FEHA).  Some potential recipients of the new state security grants might end up declining to accept funding if participation in the program requires the forfeiture of existing religious liberty protections.  Both the California Association of Private School Organizations and the California Catholic Conference have brought the issue to the attention of staff to Assemblymember Gabriel, and the Governor’s Office of Emergency Services.

But a larger legal question hangs over the program in the form of California’s so-called “Blaine Amendments” – state constitutional provisions that bar appropriations to religious entities:

No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State. (California Constitution, Article IX, Section 8)

Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI.   (California Constitution, Article XVI, Section 5)

The California State Nonprofit Security Grant program will use a state appropriation to make direct grants to “nonprofit organizations, including schools, clinics, community centers, churches, synagogues, mosques, temples, and similar locations that are at a high risk for violent attacks or hate crimes due to ideology, beliefs, or mission.”  Religious institutions have been encouraged to make application for the grants – which carry a maximum award of $200,000 – even though most, if not all of them are “sectarian” or “denominational.”  And private schools have also been encouraged to participate in the program, even though no private school – whether of a religious, or secular orientation – is “under the exclusive control of the officers of the public schools.”

Let me make it clear that I regard the California State Nonprofit Security Grant program as a praiseworthy endeavor that merits strong support.  With the exception of those with a political predilection for anarchy, it is hard, if not impossible to view an expenditure of state funds for the express purpose of enhancing the physical security of persons vulnerable to the commission of hate crimes as anything other than legitimate and commendable.  That said, the California Constitution appears to limit the exercise of such a fundamental and legitimate purpose of government.  It’s the law that’s out of sync with the CSNSG program, rather than vice-versa.

The disconnect shouldn’t be ignored, nor should the selective application of existing law when politically expedient. Imagine that new legislation was to be introduced proposing the granting of a state tax credit for contributions to student tuition organizations that will use the donations to fund scholarships to private religious schools.  How long would it take for various interests and legislators to frame such a proposal as legally impermissible?  (Such objections would be certain to arise even though the granting of a tax credit does not constitute an actual appropriation of government funds.)

California may soon be forced to face the issue as the result of a case that is currently before the U.S. Supreme Court.  Espinoza v. Montana Department of Revenue will consider “whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”  The case is the progeny of SCOTUS’ prior ruling in Trinity Lutheran Church of Columbia Inc. v. Comer, in which the High Court found that an otherwise available public benefit couldn’t be denied by sole dint of a recipient’s religious orientation.  That’s exactly what California would be doing if it were to use its “Blaine Amendments” to bar religious entities from receiving state funded security grants.

Oral argument in Espinoza v. Montana Department of Revenue has been set for January 22, 2020.  Stay tuned!

Note: The commentary and views expressed in this article are those of the author, and do not necessary represent those of the California Association of Private School Organizations, or its members.

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