Blaine Amendments are provisions in dozens of state constitutions that prohibit the use of state funds at “sectarian” schools.They’re named for James G. Blaine, who proposed such an amendment to the U.S. Constitution while he was Speaker of the U.S. House of Representatives in 1875. The original text of the proposed amendment is:
“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 passed overwhelmingly (180-7) in the House, but failed (by 4 votes) in the Senate. Although the amendment failed narrowly, state-level versions were wildly successful. And in several states, adoption of Blaine Amendments was made an explicit condition for entering the Union.
Today, 37 states have provisions placing some form of restriction on government aid to “sectarian” schools and their equivalents that go far beyond any limits in the U.S. Constitution.
Now that the Supreme Court has cleared the last remaining federal obstacle to school choice programs (Zelman held that well designed voucher programs do not violate the Establishment Clause), supporters are finding that their states’ Blaine Amendments may prohibit such programs.
It was not widely appreciated until recently that Blaine Amendments were passed as a direct result of the nativist, anti-Catholic bigotry that was a recurring theme in American politics during the 19th and early 20th centuries. Finally, in the Supreme Court’s Mitchell v. Helms decision in 2000, the four-Justice plurality explicitly recognized that use of the term “pervasively sectarian” in law was a “doctrine born of bigotry [that] should be buried now.” Justice Breyer’s dissent in Zelman v. Simmons-Harris further acknowledges this tainted history. After Locke v. Davey in 2004, the court made clear that since Blaine Amendments “have been linked with anti-Catholicism” they are unique creatures that merit especially close examination, suggesting that they may be buried by the court soon.
The Becket Fund for Religious Liberty is currently challenging the legality of several Blaine Amendments as violations of the U.S. Constitution. In a series of Supreme Court amicus briefs—first in Mitchell, then in Zelman, and again in Locke v. Davey—The Becket Fund has worked to build awareness among the Justices of the role of nativism in the history of hostility toward funds for religious schools. We’re also raising the issue before state supreme courts, filing amicus briefs in Gallwey v. Grimm before the Washington Supreme Court, and in Bush v. Holmes before the Florida Supreme Court. And have also submitted an amicus brief in the 10th Circuit. News articles in The New York Times, The Legal Times, World Magazine and other publications have recognized The Becket Fund’s role in this effort.