Blaine-type amendments are in the news because recently the US Supreme Court gave a decision against their strict interpretation. This has implications for church-state relations in the US.
Blaine-type amendments are named after Maine Representative James G. Blaine (1830–93) who served as Speaker of the U.S. House of Representatives (1869-1875), United States Senator (1876-1881), and the US Secretary of State (1881 and 1889–1892). He failed to get the Republican nomination for President in 1876 and 1880 but was nominated in 1884. He was defeated by Grover Cleveland in the general election.
When Republican lost the majority in the House in 1874 elections, Blaine decided to focus on his presidential ambitions. President Grant's speeches on the desirability of good public education that was devoid of sectarian dogmas perhaps gave Blaine the idea. As he had married a Catholic, he was also liable to suffer from anti-catholicism fervor that was rampant in the US in the late 19th century. So, an amendment that was clearly against the Catholic parochial schools was definitely helpful to his political fortunes. Blaine moved the amendment in 1875. The text of the proposed amendment, which would have expanded the First Amendment, was as follows:
No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State, for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised, or lands so devoted be divided between religious sects or denominations.
The amendment failed to pass the Congress. The House passed it by the required two-third majority (180 votes for and 7 votes against) but it could not pass the same hurdle in the Senate(28 votes for and 16 against). However, despite the failure, many states decided to add similar amendments in their own constitutions. This process was speeded up in the West when the Congress made it a pre-condition for admission into the Union in 1876. Currently, 37 states have Blaine-type amendments forbidding public funds from being used for sectarian schools. These amendments are not similar.
Blaine Amendments differ primarily in two ways. First, some Blaine Amendments forbid funding of religious education while others more broadly forbid funding of all religious organizations. Second, some Blaine Amendments prohibit only direct funding while others prohibit both direct and indirect funding. Direct funding involves the state actually giving aid to a religious organization. Indirect funding involves the state giving aid to a religious organization through a third party, such as a family that uses state funding to send its children to a religious school. The least restrictive Blaine Amendments, such as the one in Kentucky, forbid only direct funding of religious education; the most restrictive Blaine Amendments, such as those in Florida and Georgia, prohibit both indirect and direct funding of any religious organization. (The Blaine Game: Controversy Over the Blaine Amendments and Public Funding of Religion)
For more a century, Blaine-type amendments in State constitutions were not an issue. However, the start of school choice and voucher movement has changed all that. In June 2017, the US Supreme Court ruled in favor of a daycare center run by Trinity Lutheran Church, Columbia, Missouri, thus diluting Missouri's Blaine-type amendment. The daycare had requested a grant from a state program to use scrap tires for its playground surface but was denied because of the Blaine-type amendment.
What are the implications of this decision?
It will affect the success/funding for school voucher programs but, more importantly, it will have implications for separation of church and state in the US:
The big deal is what it may mean for voucher programs. Even though the issue in Trinity Lutheran v. Comer was playground equipment, some see the court’s 7-2 decision in favor of the church as a sign that school voucher programs, which both President Trump and Education Secretary Betsy DeVos support, would survive future legal challenges. Currently, more than a dozen states have school voucher programs that involve religious schools.
“This decision has implications beyond scrap tires and church playgrounds,” Michael Bindas, an attorney with the Institute for Justice, said in a statement. “The Court’s reasoning sends a strong signal that, just as the Court would not tolerate the use of a Blaine Amendment to exclude a religious preschool from a playground resurfacing program, it will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs.”
But don’t plan a funeral dirge for the Blaine Amendments yet. Secular groups have pledged to fight. Americans United for Separation of Church and State called the ruling “harmful.”
“The religious freedom protections enshrined in state constitutions are worth more than resurfacing a playground,” the Rev. Barry Lynn, AU’s outgoing executive director, said in a statement. “This ruling threatens to open the door to more taxpayer support for religion, which is at odds with our history, traditions and common sense.” (The ’Splainer: What is the Blaine Amendment and did SCOTUS kill it?)
Many scholars have advocated striking own of the Blaine-type amendments because of their anti-Catholicism and anti-religion bias as well as an unnecessary restriction and intrusion. Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School has penned a lengthy piece arguing against Blaine-type amendments (Prejudice and the Blaine amendments). Others have, however, contended that these amendments are essential for the public education system and the separation of church and state. Former assistant education secretary in the administration of President George H.W. Bush, Diane Ravitch, who supported school choice earlier but has now become a public school advocate has blogged in favor of Blaine-type amendments (Ravitch: Why the Supreme Court should not force the public to pay for religious schools). An article in the New Republic explains why this decision is important for the state-church relationship and how the new Justice Neil Gorsuch might affect the Supreme Court's decision (Neil Gorsuch Is Poised to Swing a Landmark Church-State Case). Melissa Rogers, who was director of the White House Office of Faith-based and Neighborhood Partnerships under President Obama, thinks the ruling will have consequences but a lot depends on lower courts (Six issues to watch in the Supreme Court’s Trinity Lutheran case).
