A 147-year-old dispute between church and state spills onto a school playground

Why do so many state constitutions have provisions precluding funding for religious schools?

The United States Supreme Court recently heard oral arguments in a case from Missouri that could have a significant impact on state funding of religious schools.

The case involved a church in Missouri, the Trinity Lutheran Church, that had applied for state grants to purchase recycled tire material to refurbish its playground. The state declined the request due to a state constitutional provision that forbids funding for religious institutions, including schools.

The case raises some important questions. A particularly important one is whether denying state funding to religious schools under a program generally open to nonreligious schools is unconstitutional.

As a legal scholar, a related issue that interests me is why so many state constitutions have provisions preventing funding for religious schools?

Conflicting history

A number of state constitutions have clauses restricting state funding for religious schools, or for private schools generally. The language and history of these clauses vary widely.

The United States Supreme Court has suggested that some of these clauses may be invalid if they are based in anti-Catholic prejudice, which was pervasive in the United States from the founding of the nation through the middle of the 20th century. Indeed, some historians and others have made strong arguments that these clauses were based in anti-Catholic bigotry.

These state clauses also raise concerns over whether they violate the Free Exercise Clause and the Equal Protection Clause of the United States Constitution, which prohibit laws that discriminate against any religion. A state constitutional provision that violates the United States Constitution would itself be unconstitutional.

Of course, just because some of these clauses may be based in part on anti-Catholic prejudice does not mean that all of these clauses reflect anti-Catholic bigotry. In fact, other legal historians have made strong arguments that many state constitutional provisions were based on concerns other than anti-Catholic prejudice, such as promoting a strong system of public education, especially after emancipation.

The Blaine Amendment

Some state constitutional provisions denying taxpayer funding to religious schools are referred to as “baby-Blaines.”

So, what are baby-Blaines?

The term refers to state constitutional provisions modeled on an amendment to the United States Constitution that was proposed in 1875 by Senator James G. Blaine, but was never adopted. That proposed amendment would have, among other things, prevented state governments from spending money to fund religious schools.

Senator James G. Blaine.
Library of Congress Prints and Photographs Division Washington, D.C. 20540 USA

Senator Blaine was a powerful Republican senator from Maine. He also served as secretary of state and was the Republican nominee for president in 1884, but was narrowly defeated by Grover Cleveland.

While Senator Blaine’s motivation in proposing the amendment is complex, scholars have shown that many supporters of that proposed amendment demonstrated strong anti-Catholic bias. The amendment itself arose during an era of extreme anti-Catholic bias in the United States.

By 1875 a number of states were engaged in significant debates over funding Catholic parochial schools. Yet, in other states the focus was primarily on promoting a strong system of public education for all citizens after the Civil War and emancipation. In fact, President Ulysses S. Grant, a supporter of a strong system of public education, made a famous speech in 1875 promoting public education which may have helped spur Blaine’s proposed Amendment.

A state funding provision based in anti-Catholic prejudice – such as a baby-Blaine – could be unconstitutional today. Yet, a similar provision that is not driven by anti-Catholic prejudice could well be constitutional.

In 2004, for example, the Supreme Court upheld application of a Washington state constitutional provision that limits funding to religious education, but does not share the anti-Catholic prejudice of baby-Blaines. The constitutional provision in that case is similar to the one at issue in the Trinity Lutheran case.

However, the state of Washington was sued only for denying funding to those studying to become a minister or other clergy member. At the heart of the Trinity Lutheran case is the issue of whether the state can deny funding for things other than studying to become a minister. The history of the Missouri Constitution’s provision denying funding to religious schools is relevant to this question.

The Missouri Constitution

So, it becomes important to know which state provisions emerged from anti-Catholic prejudice. More specifically, is Article 1, Section 7 of the Missouri Constitution – the clause at issue in the Trinity Lutheran case – based in anti-Catholic prejudice? In other words, is it a baby-Blaine?

I am a signatory on an amicus brief in this case. I believe it is not a baby-Blaine. And here is why.

Missouri State Capitol.
Jimmy Emerson, DVM, CC BY-NC-ND

Article I, Section 7 of the Missouri Constitution does not closely track the language of the Blaine Amendment, and is in fact broader and more focused on a longstanding state concern about separation of church and state in Missouri.

Moreover, the legislative history of Article 1, Section 7 does not contain the somewhat pervasive anti-Catholic prejudice found in the legislative history of a number of baby-Blaines and the failed federal Blaine Amendment itself.

It is true that Article I, Section 7 of the Missouri Constitution was passed in 1875 – the same year the failed federal Blaine Amendment was introduced. This has spurred debate among legal scholars. The key, however, is not the year it was passed, but rather the dates on which it was debated. The Missouri provision was discussed by the Missouri Constitutional Convention months before Senator Blaine proposed the federal amendment. This adds some fuel to the argument that it is not a baby-Blaine.

On the other hand even if the particular provision of the Missouri Constitution is not a “baby-Blaine,” the other issues in the Trinity Lutheran case remain important.

Whatever may be the outcome of the Trinity Lutheran Church case, it is worth noting how an often overlooked period in history continues to have an impact on issues such as playground surfaces in the 21st century.

Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion, Michigan State University

This article was originally published on The Conversation.

Is China to blame for the global avocado shortage?

Recent media reports of an avocado shortage have hipsters and foodies horrified the world over. Prices are at a record high as a result of a classic supply and demand situation. Harvests from major producers in Mexico, Peru and California, have been poor, which has reduced supply. Meanwhile, demand has surged. And not just in the affluent West, Chinese consumers are developing an insatiable taste for them too.

The sheer number of people in China has long made the Chinese market a dream for exporters to crack. And it seems that China’s aspirational middle class has a lot in common with its Western counterparts. Especially when it comes to food fads.

I remember, as a teenager, the first time I ever heard about avocados. It was 1977 and I was watching Abigail’s Party, a Mike Leigh play on the BBC. It was a wicked and rather tragic comedy of manners, which poked fun at the insecurities of the aspirational lower middle classes.

The central character, Beverly, wanted to impress her guests by insisting that they try her avocados, olives and various other international delicacies, which were considered new and exotic at the time. The sound of romantic Demis Roussos songs on the stereo, added to the “sophisticated” ambience that Beverly thought she was creating. Upstairs, she probably also had an avocado bathroom suite. We all laughed at Beverly, even if many of us recognised something of ourselves in her attitudes and behaviour.

Conspicuous consumption

Abigail’s Party satirised the early symptoms of a trend that would be accelerated during the Thatcher years of the 1980s: conspicuous consumption. New and affordable luxuries made it possible for everyone to extend their self-image through what they bought and express their dreams of upward mobility. The academic Russell Belk wrote about this phenomenon in 1988 in his landmark marketing article, Possessions and the Extended Self.

Now avocados are in fashion again, but this time mainly for their supposed health benefits. Some regard it as a “super food” and it is included in various fad diets. Thousands of blogs, Facebook posts and Instagram pictures of smashed avocado on toast also diffuse around the world, sating our narcissistic desire to tell everyone how healthy we are or hope to be. Beverly could only impress a handful of guests in the 1970s. Now we can try to impress thousands. Belk has even updated his original article to consider the “extended self in a digital world”.

These displays of conspicuous consumption are just as prevalent in China, which has a rapidly growing middle class of more than 100m people. Avocados – or “butter fruit” as they are known – are also relatively new there, having only been available in exclusive outlets for a few years. So avocado demand there is being doubly driven, not only by their promised health benefits, but equally by their newness, exclusivity and symbolic, aspirational value to the burgeoning middle class.




Of course, the sheer size and potential of the Chinese market means that when their consumers get a taste for something, it can have a really big impact on supplies and prices around the rest of the world. A market that took 40 years to evolve in the West is being replicated in a fraction of the time in China.

Suppliers have tried to ramp up production to meet the demand. China itself is looking to establish its own domestic production in the south of the country. The problem is that avocados are difficult to grow, requiring deep aerated soil, warm conditions and huge amounts of water. Where new crops can be grown, this is leading to deforestation and pressure on water supplies.

So a super food it may be, but a huge increase in avocado production is not very good for the environment. If the current growth in demand proves to be a relatively short-term fad, then a lot of long-term damage will have been done to satisfy it. There are probably more sustainable ways of eating healthy food and achieving social one-upmanship.

However, as the West has led the way in creating consumer desires based on aspiration and status anxiety, it is a bit rich to then criticise the Chinese middle class consumer for doing the same. There are more things that unite us than divide us – not least a love of avocados.

David Harvey, Senior Lecturer in Marketing, University of Huddersfield

This article was originally published on The Conversation.

Helen Zille responds to Sheila Madikane’s open letter

“We regard the provision of more affordable housing on well-located land a top priority for our government”

By Helen Zille
22 May 2017

Artist’s impression of the future Old <span style="display:none"></span>Conradie Hospital Development in Pinelands. Source: <a href="http://www.pinelandsdirectory.co.za/content/live/articles/Conradie%20BLM%20Presentation%20-%20Focus%20Group%20-%2023%20June%202016%20-%20Final.pdf">Western Cape Government</a>

Dear Ms Madikane,
Thank you for putting your story in writing to me, through an open letter published in GroundUp.
We have indeed met and spoken on several occasions, about the growing demand for housing and access to land in Cape Town, and about your personal struggles in particular.

Let me deal with the broader picture first. As you are aware, more and more people want to live in Cape Town. They are coming here from all parts of the country, and beyond. Many can afford to buy homes, and pay their rates and service charges to the City. Many others are indigent, and depend on local and provincial government to provide services – from water and electricity to health and education.

Because of the way funds are allocated from the central government, the money to provide services to many people in Cape Town still goes to the provinces they came from, rather than to the Western Cape. We have to wait till after the next census for this to change. This is one of the reasons that our budgets cannot keep pace with the growing demand. For example, since the last census in 2011, the number of children in our Khayelitsha schools has grown by 30%, but we haven’t received the money we need to support them from the central government tax pool. It is very difficult to keep improving education standards in these circumstances, but we are doing so.

The struggle for access to land and housing is equally intense, leading to conflicts in many parts of the City within and between poor communities. We spend a lot of time trying to mediate these conflicts which often delay our housing programmes for many years – making the situation worse.
The many middle-class and wealthy people who come to Cape Town have a much easier time than poor people, but they also face challenges. The main one is rapidly rising property prices due to growing demand. Properties on the Atlantic seaboard, including Sea Point (for example), have become unaffordable for most people for the same reasons you like living there: safety, access to facilities, proximity to the City, and the beautiful natural surroundings. You will remember that, not too long ago, Sea Point was a suburb in decline, together with the central City, and it took a lot of hard work by many people – councillors, the community, businesses, and the metro police – to turn things around. We are undertaking similar initiatives in many other parts of Cape Town, with different levels of success. The most important success factor is a committed community who take personal responsibility for improving their area.

Wherever we succeed in bringing down crime and grime, property prices rise. That is a sign of success, but it also brings its own problems. One is that it becomes more and more difficult for people (especially working people) to find affordable accommodation in well-located areas, often near to where they work. This is a problem successful cities face all over the world.

We are very aware of this. I consider it so important to address this problem, that I have turned our attempt to find a workable solution into a “game changer” in our provincial government. That means we have a special management team that is working on implementing a new strategy to increase the affordability of housing on well-located land. I follow their progress closely.

As you know, our first project is on the Provincial Government’s 22 hectare Conradie site, conveniently located in Pinelands, a suburb you also know, because you also used to work there.
I have told you how difficult this challenge is. You have on previous occasions asked me why it is so hard.

I replied that we have to work within the Constitution, the law, and many different regulations as well as tight budget constraints. This means we have to be rational and fair, and we cannot take arbitrary decisions or give some people greater benefits, funded by the state, than others in similar circumstances. We have to make the project viable and sustainable, so that we can repeat it for other people in other places, on the basis of the funding we have.

Because of the huge demand for housing, the national government has developed a subsidy system, so that the state can assist poor families to get access to housing. The subsidy falls into different categories, with greater support for indigent families (the RDP or BNG house, as it is known). People who are poor, but not indigent, are eligible for other forms of subsidy to make housing more affordable. The Social Housing Act is a relative newcomer to the government’s suite of interventions, which also seeks to integrate neighbours, something we strongly support and are trying to implement. Here again, the price of property in Cape Town makes affordability a major challenge.

It is a complex system, worked out on the basis of different income categories, for various forms of housing assistance (including rental and purchase). The highest available direct subsidy is R160,000 (which includes a house and services for indigent families).

Despite the billions of Rand allocated to these subsidies, demand outstrips supply by a considerable margin, which is why we have to maintain a database, ordered by date and area, to manage access to scarce housing resources equitably. We refer to this as the “waiting list” and we try to allocate opportunities transparently and fairly, otherwise the process generates terrible conflict, as we have often experienced in the past.

We also have to work within tight budget constraints. State subsidies are not enough (by a wide margin) to make housing in well-located suburbs affordable for working people. So we have to find models that will enable the private sector to cross-subsidise housing. To make this work we need a large site, on which we can build apartments for the open market that can cross subsidise the more affordable units. Providing space for business investment also helps to cross-subsidise housing units. This means the larger the site, the more affordable we can make some of the units. Even then, the margins are very tight.

The Conradie site is 22 hectares in size. The portion of the Tafelberg site in Sea Point that would be available for housing development is just 1.1- hectares in size. According to our assessment of the financial modelling, it does not adequately meet the criteria necessary for sustainable affordability.
For this and other reasons which have been well covered in the media, we decided to sell that site on the open market in order to retain its use as an independent school, for which there is demand in the area.

The money from this sale has been earmarked to relocate the education department head office in its own building, to save tens of millions of Rand a year that we spend on our current unsuitable rented premises.

These are the kind of decisions governments have to take – how to use their resources optimally to achieve the best results on the basis of a huge demand for services.

There are other very well located (and much bigger) sites than Tafelberg in the central city, such as the Somerset Hospital Site and the Woodstock Hospital site, that we plan to use in exactly the same way as Conradie, and we have begun work on this. It takes time, because of all the legal processes we have to go through. But I am driving it from my office.

Now that I have given you the broader picture, let me address your personal circumstances. I asked you whether you had placed your name on a housing waiting list, and you said yes, – as far back as 1999. I tracked your name to the housing database in Worcester, which records that you registered your name for a house there, in that year. I was puzzled as to why you put your name on the Worcester database, and not the Cape Town database, since you have been here since 1987.
The Breede Valley (Worcester) council informs me that they had tried to contact you, but the phone number you gave no longer worked, and you had not updated your details. They asked me to get your updated details urgently for a new project allocation. I presume you would, however, not be interested in a house there. Please let me know urgently if I am wrong.

You have not registered at all on the Cape Town database, so you could not be considered for state-subsidised accommodation in the City, because there are so many people ahead of you in the queue. I’m sure you understand that this is the only way we can run a fair system.

You are now occupying a room in the Helen Bowden nurses home on the Somerset Hospital site – which is one of the properties we want to develop on the cross subsidisation model so that some of the units are affordable to working people, without going beyond what the state subsidy allows.
You have told me you do not necessarily want the flat you are living in to be redeveloped. All you would like is some routine maintenance and the reconnection of services, for you to continue living there. Yet that would still be unfair because even without re-development, those units are worth millions of Rands each in that prime location, between the stadium and the Waterfront. This means that if we allocated the unit to you, and even if you paid a modest rental, you would be getting a huge state-subsidised benefit that hundreds of thousands of other applicants would want to claim too, when the opportunity becomes available. What we cannot do is allow people to claim a massive state subsidy by illegal occupation, all the more so if they are not even on the waiting list.

I am sure you realise that allocating that flat to you would never pass the constitutional test of equity or rationality, and would create tremendous conflict. It would start a scramble across the City to occupy property wherever people wish to do so, which would create massive conflict, and be disastrous for the economy and for jobs – which is the main reason most people come to Cape Town in the first place.

You live with your three daughters (who attend/ed school in Sea Point) and one grandchild. I am very pleased they received (or are receiving or will receive) good education and health care. I trust that their fathers are contributing to the costs of raising them. You will appreciate that it is impossible for the state (with a limited and shrinking tax base) to routinely pick up responsibilities that must be shared by individuals.

The Provincial government has a duty to make education and health care for your family available and affordable, and the City does the same for basic services. But the state cannot provide affordable housing to everyone who wants it in the location of their choice. As hard as that may be to hear, it is the truth. And anyone who promises you anything else, is misleading you.

We nevertheless regard the provision of more affordable housing on well-located land as a top priority for our government, and we are forging ahead with our 3,600 unit pilot project in Conradie to test the limits of affordability. When people illegally occupy the sites where we want to extend this model, they delay the roll-out of the project and undermine the rights of people who have patiently been waiting, sometimes for decades, on the database for the allocation of a housing opportunity.

You have said you are taking your stand in order to help others. I accept that. The best way of doing so is to facilitate, rather than block, the project that seeks to achieve this.

Helen Zille is the Premier of the Western Cape Province. 

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Published originally on GroundUp .

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Apostle, prophet… says who?

Pastors I understand; Reverend’s I also get – both these are religious occupations that takes years of study before they are deemed capable to minister. I also wholly acknowledge that there are only a very few legitimate apostles, evangelists and prophets worldwide that really do have a calling and gift from God.

What does concern me are the multitude of so-called ‘holy’ men and women who decide to call themselves apostles, prophets and evangelists… These are the dangerous ones as it’s all about their own fame, personal wealth and ‘ignorant’ followers than actually building a church of God. Yes they talk the talk and supposedly put on a perfectly believable act in front of their congregation, but behind the scenes they are anything but holy! And all they want is more of your money!

Prophetic ministry should bring positive change and hope – not cans of Doom insect killer! How desperate can people really become? How delusional must you be to believe being sprayed with insect poison in your face will heal your woes?

How many ‘holy’ men and women have been caught stealing millions from their congregation! Having affairs, caught with drugs, mixing it up with prostitutes, and selling so-called ‘healing’ gimmicks to millions that fall for their scams!

I believe it’s time to start changing the law so these ‘false prophets’ can no longer do business. And do not even get me started on traditional ‘healers’ and witchdoctors! The newspapers on online media are full of their scams, hoaxes and fake spells that involve millions of Rands!
Source

 

Land audits to determine who owns SA

Rural Development and Land Reform Minister Gugile Nkwinti says there is a need to conduct a land audit in terms of race, gender and nationality to determine who owns land in South Africa.
The Minister said this when debating on the department’s Budget Vote at the National Assembly on Friday.

He said land ownership was one of the reasons that stood in the way of radical socio-economic transformation.

“Our biggest challenge remains the answer to the question – who owns South Africa?
“In terms of phase one of our land audit, it became clear that we still needed to conduct an audit in terms of land ownership by race, gender and nationality.

“We have just concluded the latter process,” the Minister said.
Minister Nkwinti said despite this, challenges remained because of gaps that are caused by absence of information in respect of institutions such as trusts, private and public organisations and companies, including sectional title holdings.

The information gap is caused by, among others, the absence of dynamic, interactive relationship between the National Geomatics Management System and the Deeds Registration system, the Minister said.

“We have projectised the land claims process. This was a strategic error, which did not take into account fiscal constraints, complexities associated with the verification or validation of claims, court challenges and internal capacity constraints.

“In terms of moving forward, we are working on transforming the Land Claims Commission into a Chapter 9 institution.

The National Geomatics Management System, Deeds Registries and Office of the Valuer-General will be listed as Schedule 2 entities in terms of the Public Finance Management Act,” he said.

Cabinet considering land audit Phase Two report to address challenges
Meanwhile, the Minister said a further challenge to land reform relates to water rights being allocated to individuals and not the land.

This means that when an individual sells the land, he or she leaves with the water rights, leaving the new owner with structural challenges.

“An audit needs to be conducted in respect of both these issues because they negatively impact on land reform farms.

“Although regulated by laws, compliance with an enforcement of such legislation needs to be strengthened.

“A lot is happening in these functions with minimal accountability,” he said.
The Minister said the second institutional challenge was that unless an owner expresses a need to change and submit information voluntarily, the current legal system is unable to compel them.
This leads to the owners deliberately withholding information about the changes of land.

“Cabinet is considering the report of Phase Two of the Land Audit and we are expecting strong decisions to address all these institutional challenges and the Land Commission provided for in the Regulation of Agricultural Land Bill will enforce disclosure of ownership of land and landed property,” the Minister said. – SAnews.gov.za