What Is The Original Meaning of “Sectarian”?

Town v. Greece v. Galloway (2014) presaged the Court’s turn towards history and tradition in the Establishment Clause context. The case concerned whether religious prayers could be offered before a town council meeting began. Some of the prayers were fairly “generic.” They referred to general concepts like “Lord,” “Our father,” and so on. Other prayers were explicitly Christian and referenced Jesus, crucifixion, and resurrection. During oral argument, Justice Kagan read from one of the more sectarian prayers: “We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. . . . Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn and put us by His side.” Justice Kennedy’s majority opinion rejected the argument that Greece’s prayer policy “falls outside of our traditions because it was not generic or non-sectarian.” Stated differently, the Establishment Clause does not permit the Court to block the prayer because it is sectarian.

The word “sectarian” has always given me difficulty. Where exactly is the line between “sectarian” and “non-sectarian”? Justice Kagan thought watered-down liturgy was fine but actual liturgy was not. Of course, to an Atheist or a Satanist, even a bland reference to “God” would be sectarian. So what is the actual meaning of “sectarian”?

A recent dissental from the Ninth Circuit in Woolard v. Thurmond speaks to this issue. The author, of course, is the judge who forever will be known as Swinging Dick VanDyke.

The case concerns California’s Blaine Amendment, which prohibits the teaching of “sectarian or denominational doctrine” in California’s public schools. But what does “sectarian” mean? The majority ruled that “sectarian” simply means religious. But Judge VanDyke offers a different answer:

The defendants, the district court, and the panel simply took for granted that “sectarian” means “religious.” But linguistics and history show something else. The push for “nonsectarian” education did not represent a nineteenth-century attempt to secularize the first public schools—it instead represented a compromise among the Protestant Christian majority to educate public-school children in Christian teaching without wading into areas of denominational disagreement. The word “sectarian” thus deliberately encompassed some religious beliefs (such as beliefs peculiar to Catholics or Mormons, or even denominational doctrinal divides between Protestants), but not all religious beliefs (such as teaching from the King James Bible and the Apostles’ Creed). California’s Blaine Amendment thus presents a clear-cut case of attempted facial discrimination between competing religious beliefs. On its face, the law expressly allows the teaching of nonsectarian, generic Christian doctrine in public schools, but not the teaching of any sectarian doctrine. That discrimination between religions plainly runs afoul of the First Amendment’s Religion Clauses, as the unanimous Supreme Court clarified once again just last term. See Cath. Charities Bureau, Inc. v. Wisc. Lab. & Indus. Rev. Comm’n, 605 U.S. 238, 247 (2025) (noting that “[a] law that differentiates between religions along theological lines” violates the Establishment Clause and the Free Exercise Clause).

Judge VanDyke relies on Robert Natelson’s 2018 article, Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning.

Judge VanDyke writes further:

Most nineteenth-century Americans considered Catholics and Mormons to be “sectarian,” and some contemporaneous writers thought that Muslims and some Jews could be “sectarian” too, while Christians such as Unitarians, Quakers, Methodists, Baptists, Episcopalians, and even Orthodox Christians were spared the label. Id. at 104–05. But either way, saying that “sectarian” means “religious” is like saying that “dime” means “coin.” All sectarian materials are religious, but not all religious materials are sectarian. . . . The takeaway is clear enough: both before and after California’s Blaine Amendment went into effect, explicitly religious Christian doctrine was commonplace in California public schools. So we should stop pretending that California’s Blaine Amendment was ever meant or originally applied to ban all “religious” content from public education. It was meant to ban only some religious content—that deemed too “sectarian” or “denominational”—while welcoming other more generic, “nonsectarian” Christian content. In short, California’s Blaine Amendment was meant and applied to discriminate based on religion—not between the religious and the secular, as California and the panel have wrongly assumed, but instead between some religious content and other religious content.

If Judge VanDyke is right, then Blaine Amendments are facially unconstitutional. Like in Town of Greece, it cannot be the rule that “generic” religion can be taught but teachings of a particular faith cannot be taught. To use an example, the law cannot permit teaching doctrines from the Unitarian Church but not the Catholic Church.

I will note that Judge VanDyke favorably cited Noah Feldman. Feldman called the “swinging dicks” dissent “a contender for the most vulgar piece of judicial writing in the 300-plus-year history of recorded judicial decisions in the English language.” I think Buck v. Bell should win that category. If only Holmes began the opinion, “This case is about cutting tubes.”