One of the points at issue in the debate over Judge Brett Kavanaugh's nomination to the Supreme Court is his history of supporting efforts to get courts to invalidate "Blaine amendments": provisions in many state constitutions that forbid government funding of religious schools. Kavanaugh and other conservatives have long argued that Blaine amendments are unconstitutional because, although their text does not specifically target any one religion, their enactment was motivated by virulent anti-Catholicism in the late nineteenth century. Liberals fear that it will open the door to school choice programs they oppose, and often defend the Blaine Amendments on the grounds the basis that they ultimately treat all religious schools alike, despite the invidious motivations of those that enacted them.
Both liberal and conservative positions on the Blaine Amendments are in deep tension with those they have taken in other cases where a seemingly neutral government policy was in fact enacted out of discriminatory hostility towards a particular religious group. As Harvard law professor (and prominent law and religion scholar) Noah Feldman points out in a recent column, liberal defenses of the Blaine Amendments are at odds with their critiques of Donald Trump's travel ban order, which barred nearly all citizens of several Muslim-majority nations from entering the United States:
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