The most common ammunition used by opponents of school choice are state constitutional provisions known as “Blaine Amendments.” The language varies from state to state, but their intent is to prevent government money from funding religious schools.
Now, if this confuses you, because you thought the federal Constitution already provided for such separation between church and state, don’t feel bad. To understand the curious redundancies and occasional contradictions in the Blaine Amendments’ legal history, you need first partake of the Zeitgeist.
In the late 19th century, the U.S. public school system was very robust. State taxes had also routinely been used to support religious schools not controlled by Catholics for decades.
In 1859, a 10-year old schoolboy by the name of Thomas Whall was asked to recite the Ten Commandments to kick off the school day at Eliot School in Boston. Whall delivered the Catholic version of the Decalogue, and was punished for that indiscretion. This triggered the “Eliot School Rebellion,” during which hundreds of Catholic schoolchildren stayed home from school in protest. It was also the flashpoint that would lead to the creation of the Catholic primary and secondary school system that we enjoy today.
At the same time, the U.S. was experiencing an influx of Catholics from many lands. With them came all the fears and prejudices that had inflamed Europe for centuries. New Catholic Americans, in turn, were none too happy with the non-Catholic slant given to Christianity in both public and private schools; this fed into the burgeoning network of private Catholic schools.
Taking his cue from a well-received speech delivered by President Grant in 1875, Maine Congressman and Speaker of the House James G. Blaine proposed an amendment to the Constitution that would prevent states from making “any law respecting an establishment of religion, or prohibiting the free exercise thereof.” It would also guarantee that “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.”
It was a clear attempt to strike at the Catholic education system while still in its infancy. The U.S. public school system from its onset had taught a version of Christianity as part of its curriculum, but as there was a history of ecumenical cooperation among the non-Catholic sects running the schools, these schools would be exempt from the restrictions outlined in the proposed amendment. Because Catholic schools were run by a single Christian denomination, they were squarely in Blaine’s crosshairs.
The Blaine Amendment failed to pass, but individual states picked up the ball and ran with it. In fact, 36 states passed constitutional amendments preventing state funding of religious organizations. Today, these type of amendments are all colloquially referred to as “Blaine Amendments,” even though the extent of the restrictions they legislate varies widely.
The progeny of Speaker Blaine’s vendetta are back in the news lately following the decision of the Supreme Court in Trinity Lutheran v. Comer. The state of Missouri cited its Blaine Amendment as the reason it refused a grant to a church for rubber playground surfaces made from recycled tires – a program it had in place statewide for all non-profits. The High Court ruled 7-2 in favor of the church.
The decision reverberates throughout the U.S. Catholic school system, as it may provide a helpful precedent that will bolster school voucher programs against legal challenges. The reasoning is that, if the Supreme Court would not tolerate the use of a Blaine Amendment to bar a religious preschool from receiving government money to re-surface a playground, neither will it tolerate the exclusion of a religious option as part of a school voucher program.
It’s worth noting that today, states’ Blaine Amendments tar private non-Catholic schools with the same brush that was devised to restrict Catholic education. As the (non-denominational) wise man once said, “Be careful what you wish for.”