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Blaine Amendments are provisions in dozens of state constitutions that prohibit the use of state funds at “sectarian” schools. Blaine Amendments are named after James G. Blaine, a former Speaker of the U.S. House of Representatives, who proposed such an amendment to the U.S. Constitution in 1875. 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.

James G. Blaine had a long and varied career as a lawyer, teacher, journalist and most notably, as a politician. He was born in Pennsylvania in 1830, and did not move to Maine until 1854. For next five years, he worked as a newspaper editor and was a leader in the formation of the Republican party in Maine. Although he was a member of the Maine legislature for only four years (1859-1863), he served the last two of them as speaker of the state house of representatives.

He won election to the U.S. House of Representatives, and served there from March 4, 1863 until July 10, 1876, when he resigned. He was Speaker of the House from 1869 to 1875, and it was during this period that he authored the proposed “Blaine Amendment” to the U.S. Constitution.

Blaine ran for president three times, in 1876, 1880 and 1884. In the 1876 contest, he was considered the logical choice for the Republican nomination, but shortly before the nominating convention began, a House investigating committee accused him of using his position as speaker to get a land grant for a railroad in Arkansas and then sell the railroad’s bonds at a tidy profit. Blaine lost the nomination to Rutherford B. Hayes, on a narrow convention vote of 379-351. He was named to the U.S. Senate in 1876. He sought the Republican presidential nomination again in 1880, but lost to James A. Garfield, who won the general election and appointed Blaine Secretary of State. When Garfield was assassinated, Blaine resigned and retired briefly to private life.

In 1884, he finally won the Republican presidential nomination (on the convention’s fourth ballot). The general election contest was very close, and was decided by New York, where Blaine lost by 1,047 votes. During the campaign, Blaine listened impassively at a New York rally at which Rev. Samuel Buchard, a Presbyterian minister, derided Democrats as “the party whose antecedents are rum, Romanism, and rebellion.” The slur angered the large number of Irish Catholic voters in the state, and when Blaine declined to disavow Buchard’s remarks, his chances of winning the state slipped away.

Blaine had been expected to seek the Republican nomination again in 1888, but surprised everyone by supporting Benjamin Harrison for the job instead. When Harrison won, he once again appointed Blaine Secretary of State. Three days before the 1892 convention, Blaine resigned from the State Department and sought the Republican nomination a final time. But Harrison was renominated, and Blaine died the following year.

Blaine’s official portrait as Secretary of State

If you are interested in learning more about James G. Blaine, the U.S. House of Representatives website offers an additional biography of Blaine and a bibliography of books written about Blaine.

Links to organizations concerned with the Blaine Amendment debate

Order: Top Cases A-Z
201307161623

ACLU of New Jersey v. Schundler (1995-1999)

The ACLU filed suit claiming that a town's diverse holiday display of a menorah, tree, and crèche were unconstitutional.
Court: 3rd Circuit Court of Appeals
State: New Jersey
Issue: Public Square
Role: Counsel
View Case
201201181847

ACTSO v. Winn (2011)

The Becket Fund’s amicus brief argued that state taxpayers lacked the standing to bring a lawsuit under the Establishment Clause.
Court: Supreme Court
Role: Amicus
View Case
201102071921

Islamic Council of Victoria v. Catch the Fire Ministries, Inc., Australia, (2005)

The Becket Fund defended two Australian pastors who faced jail time for their preaching according to their faith.
Court: Supreme Court of Victoria at Melbourne
State: Australian province of Victoria
Issue: Free Speech, Religious Communities
View Case
201307161544

ACLU of New Jersey v. Township of Wall (1999-2001)

The ACLU sued a town for its celebrating the Christmas and Hannukah season with a set of diverse holiday displays.
Court: Trials and Appeals Courts
State: New Jersey
Issue: Public Square
Role: Counsel
View Case
201112162046

Agostini v. Felton (1997)

The Becket Fund urged reversal of a 1985 ruling that barred federal funds to disadvantaged children in parochial schools.
Court: Supreme Court
State: New York
Issue: Education, Blaine Amendments
Role: Amicus
View Case
201209271537

Albanian Associated Fund v. Township of Wayne, NJ

A New Jersey town blocked a Muslim congregation from building a mosque by using eminent domain to seize its property.
Court: D. New Jersey
State: New Jersey
Issue: RLUIPA
Role: Counsel
View Case
201210261524

Amandeep Singh v. Greenburgh Central School District

A 9th grade student was suspended for wearing the five articles of his Sikh faith after school rules were suddenly changed.
State: New York
Issue: Individual Freedom
Role: Counsel
View Case
201407182031

Newdow v. Rio Linda Union School District, California, 2005-2010

The Becket Fund defends the Pledge of Allegiance for the second time in California
Court: U.S. Court of Appeals 9th Circuit
State: California
Issue: Public Square
Role: Counsel
View Case
201211011655

Becket Fund Defends Photographer in New Mexico Supreme Court

The Becket Fund filed an amicus brief defending a New Mexico photographer who was forced to pay fines for exercising her faith.
Court: New Mexico Supreme Court
State: New Mexico
Issue: Individual Freedom
Role: Amicus
View Case
201407201911

Freedom from Religion Foundation v. Hanover School District, New Hampshire, 2007-2011

"under God" defended again by the Becket Fund, this time in New Hampshire.
Court: First Circuit Court of Appeals
State: New Hampshire
Issue: Public Square
Role: Counsel
View Case

Law Review Articles

ollowing is a list of law review articles on Blaine Amendments and closely related topics. We cannot guarantee that the list is complete, but it represents the result of a comprehensive search of the available literature and databases. When articles are accessible on-line, we have provided a link. If you know of a law review article on the subject that is not listed here, please contact the webmaster.

  • Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harvard J. of L & Pub. Pol. 551 (2003).
  • Kyle Duncan, Secularism’s Laws:State Blaine Amendments and Religious Persecution , 72 Fordham L. Rev. Pol. 493 (December, 2003).
  • Allison C. Bizzano, Are We Headed for a New Era in Religious Discrimination?: A Closer Look at Locke v. Davey, 9 Lewis & Clark L. Rev. 469 (2005).
  • Richard Fossey & Robert LeBlanc, Vouchers for Sectarian Schools After Zelman: Will the First Circuit Expose Anti-Catholic Bigotry in the Massachusetts Constitution?, 193 Education Law Reporter 343-63 (2005). (Reprinted by permission from West Publishing Company.)
  • Shanon S. Taylor, Special Education, Private Schools, and Vouchers: Do All Students Get a Choice?, 34 J.L. & Educ. 1 (2005).
  • Virginia Chase Crocker, Zelman v. Simmons-Harris: The Establishment Clause and the Fight for School Vouchers, 58 Ark. L. Rev. 395 (2005).
  • Ellen M. Halstead, After Zelman v. Simmons-Harris, School Voucher Programs Can Exclude Religious Schools, 54 Syracuse L. Rev. 147 (2004).
  • Frank S. Ravitch, Locke v. Davey and the Lose-Lose Scenario: What Davey Could Have Said, But Didn’t, 40 Tulsa L. Rev. 255 (2004).
  • J. Scott Slater, Florida’s “Blaine Amendment” and Its Effect on Educational Opportunities, 33 Stetson L. Rev. 581 (2004).
  • Luke A. Lantta, The Post-Zelman Voucher Battleground: Where to Turn After Federal Challenges to Blaine Amendments Fail, 67-SUM Law & Contemp. Probs. 213 (2004).
  • Mark Edward DeForrest, Locke v. Davey: The Connection Between the Federal Blaine Amendment and Article I, � 11 of the Washington State Constitution, 40 Tulsa L. Rev. 295 (2004).
  • Peter H. Hanna, School Vouchers, State Constitutions, and Free Speech, 25 Cardozo L. Rev. 2371 (2004).
  • Steven K. Green, Locke v. Davey and the Limits to Neutrality Theory, 77 Temp. L. Rev. 913 (2004).
  • Susanna Dokupil, Function Follows Form: Locke v. Davey’s Unnecessary Parsing, 2004 Cato Sup. Ct. Rev. 327 (2004).
  • Brandi Richardson, Eradicating Blaine’s Legacy of Hate: Removing the Barrier to State Funding of Religious Education, 52 Cath. U. L. Rev. 1041 (2003).
  • Frederick Mark Gedicks, Reconstructing the Blaine Amendments, 1 First Amendment L. Rev. 1 (2003).
  • George S. Swan, The Law and Economics of the Blaine Amendments: Zelman v. Simmons-Harris and Romer v. Evans, 80 U. Det. Mercy L. Rev. 301 (2003).
  • Ira C. Lupu & Robert Tuttle, Zelman’s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev. 917 (2003).
  • Joseph P. Viteritti, Davey’s Plea: Blaine, Blair, Writers, and the Protection of Religious Freedom, 27 Harv. J.L. & Pub. Pol’y 299 (2003).
  • Kyle Duncan, Secularism’s Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003).
  • Michael J. Dailey, Blaine’s Bigotry: Preventing School Vouchers in Oklahoma . . . Temporarily, 39 Tulsa L. Rev. 207 (2003).

Richard G. Bacon, Rum, Romanism and Romer: Equal Protection and the Blaine Amendment in State Constitutions, 6 Del. L. Rev. 1 (2003).

  • Richard W. Garnett, The Theology of the Blaine Amendments, 2 First Amend. L. Rev. 45 (2003).
  • Robert A. Dietzel, The Future of School Vouchers: A Reflection on Zelman v. Simmons-Harris and an Examination of the Blaine Amendments as a Viable Challenge to Sectarian School Aid Programs, 2003 Mich. St. DCL L. Rev. 791 (2003).
  • Robert William Gall, The Past Should Not Shackle the Present: The Revival of a Legacy of Religious Bigotry by Opponents of School Choice, 59 N.Y.U. Ann. Surv. Am. L. 413 (2003.)
  • Steven K. Green, ‘Blaming Blaine’: Understanding the Blaine Amendment and the No-Funding Principle, 2 First Amend. L. Rev. 107 (2003).
  • James E. Ryan and Michael Heise, The Political Economy of School Choice, 111 Yale L.J. 2043 (2002).
  • Jay S. Bybee and David W. Newton, Of Orphans and Vouchers: Nevada’s “Little Blaine Amendment” and the Future of Religious Participation in Public Programs, 2 Nev. L.J. 551 (2002).
  • Michael J. Frank, The Evolving Establishment Clause Jurisprudence and School Vouchers, 51 DePaul L. Rev. 997 (2002).
  • James G. Dwyer, School Vouchers: Inviting the Public Into the Religious Square, 42 Wm. & Mary L. Rev. 963 (2001).
  • Andrew Stark, Moving the Baseline: The Contradiction at the Core of Constitutional Discourse Over State Aid to Parochial Schools, 42 Wm. & Mary L. Rev. 1437 (2001).
  • John C. Jeffries, Jr. and James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev 279 (2001).

Thomas C. Berg, Anti-Catholicism and Modern Church-State Relations, 33 Loy. U. Chi. L.J. 121 (2001).

  • Richard W. Garnett, School Choice, the First Amendment, and Social Justice, 4 Tex. Rev. L. & Pol. 301 (2000).
  • Scott W. Somerville, The History and the Politics of School Choice, 10 Geo. Mason U. Civ. Rts. L.J. 121 (2000).
  • Toby J. Heytens, School Choice and State Constitutions, 86 Va. L. Rev. 117 (2000).
  • Ira C. Lupu, The Increasingly Anachronistic Case Against School Vouchers, 13 Notre Dame J.L. Ethics & Pub. Pol’y 375 (1999).
  • Frank R. Kemerer, The Constitutional Dimension of School Vouchers, 3 Tex F. on C.L. & C.R. 137 (1998).
  • Joseph P. Viteritti, Blaine’s Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657 (1998).
  • Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997).
  • Joseph P. Viteritti, Choosing Equality: Religious Freedom and Educational Opportunity Under Constitutional Federalism, 15 Yale L. & Pol’y Rev. 141 (1996).
  • Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992).
  • Richard L. Baer, The Supreme Court’s Discriminatory Use of the Term ‘Sectarianism’, 6 J.L. & Pol. 449 (1990).

In March 2002, former Becket Fund Senior Counsel Eric W. Treene wrote a white paper published by the Federalist Society entitled “The Grand Finale is Just the Beginning: School Choice and the Coming Battle Over Blaine Amendments.” Although written before the Supreme Court handed down its decision in Zelman v. Simmons-Harris, it is a valuable description of the history of Blaine Amendments and the coming state battles over school choice programs.

Other policy papers on the subject include:

Following is a list of books on Blaine Amendments and closely related topics. If you know of a book on the subject that is not listed here, please contact the webmaster.

Recent federal court decisions have acknowledged that Blaine Amendments are rooted in nativist bigotry, and recent state court decisions have interpreted Blaine Amendments narrowly to avoid constitutional violation. Additional cases are pending, and more are on the way. This page will be updated periodically to reflect recent developments.

Cases Pending:

Federal Courts:

Pucket v. Rounds, No. 03-CV-5033 (D.S.D., filed March 29, 2004) (challenging decision based on South Dakota Constitution to deny public busing to students because of their affiliation with religious school). Discovery resumed after stay pending November 2004 election.

Boyette v. Galvin, 311 F. Supp. 2d 237 (D. Mass 2004) (rejecting constitutional challenges to Massachusetts‘ forerunner of Blaine Amendment, and to state prohibition on referenda to repeal Blaine Amendment), on appeal sub nom. Wirzburger v. Galvin, No. 04-1625 (1st Cir., filed May 19, 2004).

State Courts:

Saint Louis University v. Masonic Temple Association, S.W.3d (Mo. 2007), No. SC88075 (Missouri Supreme Court held that the City of St. Louis did not violate the state’s ‘Blaine Amendment’ by providing ‘tax-increment financing’ to Saint Louis University, a Jesuit, Catholic University, to assist in the construction of a 13,000-seat arena to be used for secular purposes such as sporting events and graduation ceremonies. While Article IX, Section 8 of the Missouri Constitution forbids state and local government from financially supporting schools ‘controlled by any religious creed, church or sectarian denomination whatever,’ the Supreme Court found that the University does not attempt to ‘indoctrinate the faith’ nor is the University controlled by it.)

Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004) (finding that Florida’s statewide school voucher system violates the Florida Blaine Amendment, and rejecting claim that such an interpretation of the Blaine Amendment violates the state constitution), on appeal, Nos. SC04-2323, SC04-2324, SC04-2325 (Fla. S. Ct., filed Dec. 10, 2004).

California Statewide Communities Development Authority v. All Persons Interested in the Matter of the Validity of a Purchase Agreement, 116 Cal. App. 4th 877 (Cal. Ct. App. 2004) (affirming judgment that proposals for the issuance of tax-exempt bonds for the benefit of religious schools had violated Cal. Const. art. XVI, � 5 and where schools were pervasively sectarian, conduit financing had the direct and substantial effect of aiding religion). Granted review by California Supreme Court.

 

Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259 (S.D. Cal. 2003) (holding a reasonable observer would perceive an advancement of religion as a result of the failure to use a neutral process in selecting lessees for the parklands. Thus, the city’s long-term lease of public parkland to the BSA violated state and federal Establishment Clauses and the state constitution’s No Preference and No Aid Clauses.) Granted review by Ninth Circuit. Other issues proceeding in district court.

 

Anderson v. Town of Durham, (Me. Super. 2003) (No. Civ.A. CV-02-480) (dismissing case for failure to state a claim. State law requires that municipalities contract with a public school outside the municipality or reimburse those students who choose to attend an approved private school, a public school, or a school approved for tuition purposes in another state. School department claimed request for reimbursement for tuition payments made to private Catholic high school claim was barred by statute which excludes the participation of sectarian schools from the state’s tuition reimbursement program.) Pending before the Maine Supreme Judicial Court.

 

Williams v. Georgia, 2005 WL 2156135 (N.D.Ga. Aug 11, 2005) (NO. 105-CV-0427) (involving Plaintiff parents seeking a voucher remedy of the state for its hindering their fundamental liberty rights as parents to control the education of their children, through a variety of restrictive policies. School system claims that Plaintiff’s request for funds for children to attend either religious or non-sectarian private schools would require the court to act outside the constitutional limitations of its judicial power).

Cases Decided:

United States Supreme Court:

Locke v. Davey, 540 U.S. 712 (2004) (upholding decision based on Washington State Constitution to rescind state college scholarship because student chose to study religion)(‘The amici contend that Washington’s Constitution was born of religious bigotry because it contains a so-called ‘Blaine Amendment,’ which has been linked with anti-Catholicism. . . . [H]owever, the provision in question is not a Blaine Amendment. . . . Accordingly, the Blaine Amendment’s history is simply not before us.’).

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (dissenting opinion of Breyer, J.) (acknowledging that Protestant efforts to maintain religious dominance in public schools ‘played a significant role in creating a movement that sought to amend several state constitutions [often successfully], and to amend the United States Constitution [unsuccessfully] to make certain that government would not help pay for ‘sectarian’ [i.e., Catholic] schooling for children’).

Thirty-seven states have provisions in their constitutions that explicitly bar government aid to so-called “sectarian” schools or institutions. As seven Justices of the current Supreme Court have recognized–along with a growing number of legal academics and historians–the term “sectarian” was code for “Catholic,” and was added to state constitutions in order to enforce the nativist bigotry of the day. Some Blaine Amendments are very restrictive, some are more permissive, whether by their terms or by judicial interpretation. Some were enacted immediately following the failed attempt to attach a Blaine Amendment to the U.S. Constitution in 1875. Others were adopted during the decades before, when anti-immigrant hatred was still building. Still others became law during the early part of the 20th century, during a resurgence of anti-immigrant sentiment. All pose a potential threat to the adoption of school choice programs, despite the U.S. Supreme Court’s decision in Zelman v. Simmons-Harris, which made clear that the federal Constitution permits such aid.

Click on the links below to view each state’s Blaine Amendment and related laws and decisions. Neither the state-specific pages, nor any other part of this website, intends to or actually does provide legal advice.

 

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