Blaine Amendment(s) and separation of Church and State in the US

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)

Source: Answers to Frequently Asked Questions About Blaine Amendments

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).

Is Britain a Christian country?

I have not thought that I would write about Great Britain on this blog. But British Prime Minister David Cameron wrote an interesting, though controversial, article in Church Times (See My Faith in Church of England), a publication that proudly declares itself as' the world's Anglican newspaper'. In this article, he argued that Christians should be more confident, more ambitious and more evangelical about their faith. Some of the more interesting parts for our purpose are copied below:

Some people feel that in this ever more secular age we shouldn't talk about these things. I completely disagree. I believe we should be more confident about our status as a Christian country, more ambitious about expanding the role of faith-based organisations, and, frankly, more evangelical about a faith that compels us to get out there and make a difference to people's lives.

And

But that doesn't mean the Church of England doesn't matter to me or people like me: it really does. I like its openness, I deeply respect its national role, and I appreciate its liturgy, and the architecture and cultural heritage of its churches. My parents spent countless hours helping to support and maintain the village church that I grew up next to, and my Oxfordshire constituency has churches - including some medieval masterpieces - that take your breath away with their beauty, simplicity, and serenity. They are a vital part of Britain's living history.

Religious nationalism and Britain today seem difficult to imagine together, notwithstanding what happened in the past. British nationalism was once based on religious faith. Many laws were based on Anglican Church or Christian commandments and Church regularly influenced foreign and domestic policies. Not only non-Christians but even non-Anglicans were persecuted and not allowed to follow their faith openly. Non-Anglicans were also barred by law from important posts in the realm. The monarch was the head (supreme governor) of the Anglican Church and took his/her duties as 'defender of the faith' (against other faiths/liberal ideas) very seriously.

Source: Anglican Church Embraces Working Relationship with Church of England

Though British nationalism today has lost its religious basis, British monarch (Queen Elizabeth II) is still head of the Anglican Church and Britain has an official church and state religion. As many as twenty-six bishops and archbishops are members of the British Parliament (House of Lords). These 'Lords Spiritual' not only say prayers but also take part in the proceedings. According to Church of England (as Anglican Church is called in England), these lords perform an important function in the House of Lords (See Bishops in the House of Lords):

Their presence in the Lords is an extension of their general vocation as bishops to preach God's word and to lead people in prayer. Bishops provide an important independent voice and spiritual insight to the work of the Upper House and, while they make no claims to direct representation, they seek to be a voice for all people of faith, not just Christians.     

So, is Britain a Christian country as PM Cameron says? There is no denying the fact that majority of British people are Christians so in that sense, it can be called a Christian country ( See Religion in England and Wales 2011)


In Great Britain, (See We believe in God)

Certainly, Britain is not a Christian country in the sense that Christianity influences affairs of state as for example Islam in Iran or Saudi Arabia? So, what Cameron means? The way Cameron explains his concept of Christian country appears innocuous. Who can disagree with religion's (or Anglican Christianity's) utility as psychological support; motivator to help others and to lead a moral life. Church's role in social welfare, health and education cannot be denied. So, why was his article controversial?

More than fifty prominent Britishers answered this question and let me quote them directly (See David Cameron fosters division by calling Britain a 'Christian country’) 

SIR – We respect the Prime Minister’s right to his religious beliefs and the fact that they necessarily affect his own life as a politician. However, we object to his characterisation of Britain as a “Christian country” and the negative consequences for politics and society that this engenders.

Apart from in the narrow constitutional sense that we continue to have an established Church, Britain is not a “Christian country”. Repeated surveys, polls and studies show that most of us as individuals are not Christian in our beliefs or our religious identities.
At a social level, Britain has been shaped for the better by many pre-Christian, non-Christian, and post-Christian forces. We are a plural society with citizens with a range of perspectives, and we are a largely non-religious society.

Constantly to claim otherwise fosters alienation and division in our society. Although it is right to recognise the contribution made by many Christians to social action, it is wrong to try to exceptionalise their contribution when it is equalled by British people of different beliefs. This needlessly fuels enervating sectarian debates that are by and large absent from the lives of most British people, who do not want religions or religious identities to be actively prioritised by their elected government.