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 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.
Links to organizations concerned with the Blaine Amendment debate
- The Becket Fund for Religious Liberty (sponsor of the Blaine Amendments.org website and a leading opponent of Blaine Amendments in the legal arena)
- The Heritage Foundation (publisher of a book and a website covering the school choice movement in all 50 states)
- The Institute for Justice (another leading opponent of Blaine Amendments in the legal arena)
- U.S. Department of Justice, Civil Rights Division, Special Counsel for Religious Discrimination (subdivision of Justice Department that enforces statutory and constitutional protections against religious discrimination)
Both specialty news media and general audience news media have begun to pay considerable interest to Blaine Amendments and their importance in the wake of the U.S. Supreme Court’s decision in Zelman v. Simmons-Harris. Following is a list of recently published news articles of which we’re aware. If the full article is available on-line without cost, the full link is given. Where articles must be accessed for a fee using the newspaper’s search engine, only the link to the paper’s home page is provided. If you know of a news article on the subject that is not listed here, please contact the webmaster.
- Supreme Court Hears Arguments on State Scholarships, by Jacquelyn Horkan, The Florida Catholic, June 24, 2005
- Justices Question Legislator’s Authority, by Kimberly Miller, Palm Beach Post, June 8, 2005
Groups Ready to Rally in Capital, by Jennifer Booth Reed, News-Press, June 7, 2005 (shows facts and history of FL vouchers)
- High Court’s Voucher Ruling May Ricochet to Other Issues, by John Kennedy, Orlando Sentinel, June 5, 2005
- Debate Hinges on Amendment Language, by Kimberly Miller, Palm Beach Post, June 4, 2005
- Justices To Decide Future of Vouchers, by Joe Follick, The Ledger, May 31, 2005
- Challenge Continues to Massachusetts Blaine Amendment, by George A. Clowes, School Reform News, November 1, 2004
Florida Hands Legal Setback to School Plan, by Jacob Gershman, New York Sun, August 17, 2004
- When a Win May Not Mean Much; Church & State; Ruling Denying State Scholarship Aid to Divinity Student, The Humanist, May 1, 2004
- States Can Ban Scholarships for Theology; Rehnquist Leads 7-Vote Majority in Washington State Case That Some See as Setback for School Voucher Proponents, by Tony Mauro, Legal Times, March 1, 2004
- Justices Say States May Deny Theology Scholarship Funds, by Mike McKee, The Legal Intelligencer, February 27, 2004
- State Aid for Divinity Study Not Required, Court Rules, by Tony Mauro, The Recorder, February 26, 2004
Court Rules States Can Deny Scholarships to Divinity Students, by Stephen Henderson, Knight Ridder Washington Bureau, February 26, 2004
- Senator at Root of Battle on Church-State Funding; Many States Adopted ‘Blaine Amendment’ After His Efforts for National Law Failed in Senate, by Dave Williams, Florida Times-Union, February 9, 2004
- Perdue Touts Faith-Based Initiatives, by Nancy Badertscher, The Atlanta Journal-Constitution, December 7, 2003
- The Court and Religious Liberty, by E.J. Dionne Jr., Chattanooga Times Free Press, December 4, 2003
- Court Weighs Religious Studies; White House Seeks to Overturn State Funding Ban, by George Archibald, Washington Times, December 3, 2003
- Justices Resist Religious Study Using Subsidies, by Linda Greenhouse, New York Times, December 3, 2003
- High Court Hears Religious-Studies Case, by Charles Lane, Washington Post, December 3, 2003
Washington State Court Case Could Affect School Choice Issue, by Scott Stephens, Plain Dealer, December 2, 2003
- Court Weighs Religious Studies, by George Archibald, Washington Times, December 2, 2003
- Let Students Study God; State Laws Block Cash for Theology Programs. The Supreme Court Should Stop That, by Dick Komer, Legal Times, December 1, 2003
- Harvard Law Student on Top of the Docket; Former Divinity Student Presses Church-State Case, by Tony Mauro, Legal Times, December 1, 2003
- Constitutional Amendment to Provide Greater Access to Family and Social Services, Website of Georgia Governor Sonny Purdue, November 25, 2003
- Faith-Based Aid May Hinge on High Court, by Andrew Mollison, The Atlanta Journal-Constitution, October 14, 2003
- Confusion Continues Over Faith-Based Federal Funding, by Andrew Mollison, Cox News Service, October 13, 2003
- Weblog: Supreme Court Will Take on ‘Blaine Amendments’, by Ted Olsen, Christianity Today, May 20, 2003
- Colorado Legislature Moved Closer to Repealing the State Constitution’s “Blaine Amendment, by Tom Hutton, Legal Clips, April 2003
School Voucher Supporters Take Their Mission to Court–A Successful Effort Could Boost President’s Faith-Based Initiatives, by Barbara C. Neff; Newark Star-Ledger, February 23, 2003
- Proponents of Vouchers See Opening, by Mary Leonard, Boston Globe, November 18, 2002
Voucher backers embrace doctrine; Little-known tenet supports position, advocates argue, by Jan Murphy; The Patriot-News (Harrisburg, PA), August 25, 2002 (articles in this paper archived on-line for only 14 days)
States are new arena in voucher showdown; Laws may conflict with court ruling, by Jan Crawford Greenburg; The Chicago Tribune, August 9, 2002 (discusses how pro-voucher lawsuits will argue that Blaine Amendments are so restrictive of religious expression that they violate the federal Constitution)
In States, Hurdles Loom, by Laurie Goodstein; The New York Times, June 30, 2002 (registration required)
Private School Aid Efforts Will Face State Challenges; Legal Barriers Likely to Impede Use of Funds, by Mary Leonard; The Boston Globe, June 28, 2002
Court Decision Bolsters Those Battling Anti-Voucher Amendment, by Steve Leblanc; The Boston Globe, June 27, 2002 (discusses the fate of Massachusetts’ Anti-Aid Amendment in the wake of the Supreme Court’s Zelman decision)
- Missouri Law Drives Up Cost of Delivering Federal Programs to Private Schools; St. Louis Post-Dispatch, July 2, 2000
Opinion and Analysis
ollowing is a list of recently published opinion and analysis pieces, as well as book reviews. If you know of an opinion piece on the subject that is not listed here, please contact the webmaster.
Why Stop Decades Of School Choice Now?, by Clark Neily, Tampa Tribune, January 18, 2005
- Blaine in Florida, The New York Sun, August 17, 2004
Supreme Court Made the Right Call; Beliefs, by Cary McMullen, The Ledger, March 6, 2004
Court’s Decision Misguided, The Daily News Leader, February 29, 2004
Misplaced Passion; Supreme Court’s Scholarship Decision Erodes Religious Freedom, by David C. Steinmetz, Orlando Sentinel, February 28, 2004
Compromise Would Satisfy All in Faith-Based Debate, by Michael J. Broyde, The Atlanta Journal-Constitution, February 11, 2004
- Blaine Amendments Have Harmed America’s Education System, by Bill Donahue, Pittsburgh Post-Gazette, December 9, 2003
- Just Case, Bad Trend, by E. J. Dionne Jr., The Washington Post, December 4, 2003
- Can the State Refrain from Funding Education of the Clergy, When It Funds Secular Education?, by Marci Hamilton, Findlaw.com, December 4, 2003 (opposes Mr. Davey)
- Choice Before the Court, The New York Sun, December 2, 2003
- Church, State and Education, New York Times, December 2, 2003
- A Case of Church and State and the States, By Charles Lane, The Washington Post, December 1, 2003
- The Blaine Game, by Michael McGough, Pittsburgh Post-Gazette, November 30, 2003
- Washington State’s Blaine Amendment Violates the U.S. Constitution, CATO, September 10, 2003
Historic Moment for School Choice; Opponents Must Rely on an Unsavory Amendment; editorial, Rocky Mountain News, April 17, 2003
Cleanup Time; editorial, Florida Times Union, February 4, 2003
Free kids from failing schools – Let’s put aside the vestiges of bigotry and allow vouchers – and children – a chance, by David L. Brennan; op-ed published in The Star-Ledger (Newark, NJ), September 3, 2002
Catholic schools need no shackles; Government vouchers come with strings, by Thomas Roeser; op-ed published in the Chicago Sun-Times, August 31, 2002
Breaking through Blaine’s roadblock, by Marvin Olasky; World Magazine, August 24, 2002 (opposes Blaine Amendments, includes a fairly detailed history of their origins)
Retrograde on School Choice, by Nathan J. Diament; op-ed column published in The Washington Post, August 22, 2002 (opposes Blaine Amendments as a barrier to school choice)
Dredging Up Ugliness in the Name of Vouchers, by K. Hollyn Hollman; letter to the editor published in The Washington Post, August 31, 2002 (favors Blaine Amendments, response to 8/22 Nathan Diament op-ed)
Florida Anti-Voucher Court Ruling Gives Lesson in ‘Three R’s’, by Frank A. Shepard and Harold E. Johnson; The Tampa Tribune, August 18, 2002
Vouchers – Florida Ruling; editorial, The Cincinnati Enquirer, August 8, 2002
The Next Voucher Battleground; editorial, The Wall Street Journal, August 7, 2002
Dump Bigoted Blaine Language; editorial, Rocky Mountain News, July 28, 2002 (fee charged for full article) (argues against state constitutional barriers to school choice in the wake of Zelman decision)
The School Choice Fallout; editorial, The Wall Street Journal, July 24, 2002 (discusses implications of 9th Circuit Davey v. Locke decision)
Voucher Ruling is Key in Our Push to Improve Education, by Matthew Carolan and Raymond J. Keating; Newsday, July 9, 2002
The Right Thing; Why Liberals Should be Pro-Choice, by Diane Ravitch; The New Republic, October 8, 2001 (includes a brief history of Blaine Amendments and the anti-Catholic bigotry motivating them)
Court rights wrong term in school ruling, by Larry Witham; The Washington Times, July 2, 2000
Revenge of the Know-Nothings; editorial, The Wall Street Journal, May 23, 2000
Yes, Vouchers are Constitutional, by Richard E. Morgan; City Journal, August 1998 (argues that strict separationism is at odds with the legal and constitutional understanding held throughout most of American history)
Religious Prejudice Caused Church and State Separation; posted on the University of Virginia School of Law website on September 19, 2002 (summary of lecture given by Law School Dean John C. Jeffries Jr.)
Please Don’t Blaine Us Again, by Alan E. Sears; posted on Crosswalk.com, date uncertain (President of Alliance Defense Fund decries Florida ruling in Holmes v. Bush–which declared vouchers unconstitutional–as well as the state Blaine Amendment which served as the basis for the ruling)
The Pain of Blaine (Amendments) Is On the Wane?, by David W. Kirkpatrick; posted on Schoolreformers.com website, May 1, 2002 (provides background information on Blaine Amendments)
The Bigotry of ‘Blaine Amendments’, by David W. Kirkpatrick; posted on the Schoolreformers.com website, April 24, 2002 (discusses Blaine and the origins of the modern public school system
Getting over the Wall, by Robert Bork; The Public Interest, Fall 2002 (posted on the University of Chicago Law School website) (review of Separation of Church and State, by Philip Hamburger)
Church, state ‘wall’ not idea of Jefferson: Fear of Catholics by justice cited, by Larry Witham; The Washington Times, August 5, 2002 (fee charged for full article) (article about Thomas Jefferson and the Wall of Separation Between Church and State, by Daniel L. Dreisbach)
Evolution of Words That Aren’t There, by Peter Steinfels; The New York Times, 7/6/02 (article about Separation of Church and State, by Philip Hamburger)
Law Review Articles
Following 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:
- “Joint Statement of Church-State Scholars on School Vouchers and the Constitution”, contained in School Vouchers: Settled Questions, Continuing Disputes, The Pew Forum on Religion and Public Life, August 2002 (discusses state constitutional restrictions on vouchers, their interpretation, and possible federal challenges)
- “The 1850s and Beyond: States Strengthen Government’s Role in Education and Restrict School Choice”, contained in School Choice in Michigan: A Primer for Freedom in Education, by Matthew J. Brouillette; posted on the Mackinac Center for Public Policy website, July 16, 1999 (briefly recounts the history of Blaine Amendments and their precursors)
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.
- Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (Carlson Publications, 1982).
- Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York Univ. Press, 2002).
- Ward M. McAfee, Religion, Race and Reconstruction: The Public School in the Politics of the 1870s (S.U.N.Y. 1998).
- James O’Toole, Militant & Triumphant: William Henry O’Connell and the Catholic Church in Boston, 1895-1944 (Univ. of Notre Dame Press, 1993).
- Diane Ravitch, The Great School Wars: A History of the New York City Public Schools (Johns Hopkins Univ. Press, 2000).
- Joseph P. Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society (Brookings 1999).
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.