What are Blaine Amendments?
Blaine Amendments are the most common type of religion clause found in state constitutions. By the Institute for Justice’s count, they are found in 37 state constitutions. Although their language varies, and some interpretation is involved in classifying a provision as a Blaine Amendment, IJ considers as a Blaine Amendment any provision that specifically prohibits state legislatures (and often other governmental entities) from appropriating funds to religious sects or institutions, including religious schools.
Blaine Amendments are named after a failed federal constitutional amendment introduced in the U.S. Congress by Sen. James G. Blaine of Maine in 1875. The proposed federal amendment was modeled on provisions already adopted by several states directed at efforts by Catholics to obtain a share of public school funding for their schools, which they had created because of their unwillingness to send their children to the Protestant-oriented public schools. Although the public schools of that period were called “nondenominational,” that description did not mean they were non-religious or secular in today’s terms. Rather, it meant they did not teach the doctrine of any particular Protestant sect or denomination. However, they did conduct religious activities such as school prayer, readings and lessons from the King James (Protestant) Bible, and hymn singing. Understandably, Catholics and certain other religious groups were unhappy with this state of affairs in the public schools.
After Catholics’ efforts to secure better treatment in the public schools failed, they began demanding a share of public funds to support their own schools. This upset the Protestant majority, and a virulent anti-Catholicism erupted. Among other things, it gave rise to the nativist Know Nothing movement, which gained prominence—and political dominance—in a number of states in the mid-19th century. The Know Nothings and those inspired by them convinced electorates in several states to adopt laws or constitutional provisions barring public funding of so-called sectarian schools. Of course, as the U.S. Supreme Court recognized in Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality op.), it was an “open secret” that “sectarian” was code for “Catholic.” For example, Massachusetts adopted one of the earliest Blaine provisions in 1855, during this early wave of anti-Catholic sentiment in reaction to increased Catholic immigration, after the Know Nothing movement briefly captured control of the Massachusetts state government.
This anti-Catholic bigotry metastasized after the Civil War and, in September 1875, President Grant (himself a former Know Nothing) delivered a widely publicized speech warning of a new civil war based not on race, but on religion. Grant pressed Congress to adopt a constitutional amendment to prohibit public funding of so-called sectarian schools. James G. Blaine, then a member of the U.S. House of Representatives, took up the charge: Within days, he introduced an amendment to the U.S. Constitution to do just what Grant had urged. Based on the language from those states that had already adopted constitutional provisions denying aid to “sectarian” schools, Blaine’s proposed federal constitutional amendment passed overwhelmingly in the House but, fortunately, fell just shy of the supermajority needed in the Senate to proceed to the states for ratification.
Despite their narrow defeat in the Senate, the backers of the Blaine Amendment succeeded over the next quarter century in promoting their anti-Catholic agenda by requiring that some newly formed states include Blaine Amendment language in their state constitutions as a condition for admission to the Union. Additional states added Blaine language on their own, joining those other states whose Blaine-like language had provided models for Blaine’s efforts. Today, the constitutions of every western state have Blaine Amendments in them, as do those of approximately half of the states east of Mississippi.
Why do opponents of parental choice in education focus on Blaine Amendments as a primary means of derailing school choice programs?
Since the modern school choice movement began in Milwaukee in 1991, opponents of school choice have sought to halt parental school choice programs by invoking state constitutional provisions, like Blaine Amendments. School choice opponents have always preferred to challenge school choice programs on state constitutional grounds because it is harder for those who defend educational choice programs, like the Institute for Justice, to obtain U.S. Supreme Court review of such decisions. Typically, the U.S. Supreme Court will not hear cases decided on state constitutional grounds because a state supreme court is generally the final arbiter of the meaning of its own state’s constitution. An exception to that rule, however, is when an interpretation of a state constitutional provision (or state law) would deprive an individual of a right protected by the federal Constitution.
When lawsuits challenging school choice programs are filed, IJ seeks to intervene in the cases on behalf of families who want to participate in the programs. In so doing, IJ defends the programs alongside the government. IJ defends school choice programs because it is critical that courts hear directly from parents and students themselves—the beneficiaries of school choice—rather than from the government alone.
Since the summer of 2002, however, opponents have not been able to assert that school choice programs violate the federal Constitution’s Establishment Clause because the U.S. Supreme Court, in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), declared that properly drafted school choice programs pass federal constitutional muster. In Zelman, school choice opponents argued that because participating students could choose to attend religious schools, the programs violated the Establishment Clause of the U.S. Constitution, which prohibits governmental advancement of religion. Fortunately, the U.S. Supreme Court decisively rejected their argument. So long as school choice programs (1) are neutral toward religion (meaning religious and non-religious schools alike are free to participate) and (2) operate on private choice (meaning parents, rather than government, decide what schools their children attend), school choice is perfectly permissible under the U.S. Constitution.
Because school choice opponents have always brought state Blaine Amendment claims whenever they have had the chance to do so, the Institute for Justice and its allies have already confronted and overcome claims that parental choice programs violate state Blaine Amendments in a number of cases.
What is the legal argument that school choice programs violate Blaine Amendments?
Opponents of parental choice programs argue that providing financial assistance to families that choose a religious school to educate their children is the equivalent of providing aid directly to the religious schools. Although Blaine Amendments were obviously designed to address direct aid to schools, which was, after all, what Catholics were requesting at the time the federal Blaine Amendment was drafted, opponents of school choice wish to extend the language of Blaine Amendments to encompass money that incidentally reaches religious schools through the private and independent choice of parents who have selected to spend their scholarships or grants at those schools. (This would be equivalent to barring students who receive Pell Grants from using them at the University of Notre Dame or Brigham Young University because of those schools’ religious affiliations.)
The Institute for Justice’s counterargument is two-fold. The first argument is that school choice programs do not even implicate Blaine Amendments. After all, Blaine Amendments were designed to bar government funding of so-called sectarian schools. But school choice programs do not fund schools at all—they fund students. Not a penny flows to any school—religious or non-religious—but for the private and independent choice of parents.
The second argument is that applying state Blaine Amendments to prohibit parents from choosing religious schools in school choice programs would violate the federal Constitution, especially the Free Exercise and Free Speech Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. Under all of these provisions government must be neutral toward religion, meaning it can neither favor nor disfavor religion. Applying state Blaine Amendments to bar allowing parents to choose religious options alongside non-religious options violates the federal constitutional command of religious neutrality.
How successful have school choice opponents been with their Blaine Amendment arguments?
To date, the Institute for Justice has litigated 25 cases in defense of school choice programs. Thus far, opponents of school choice have not been very successful with their Blaine Amendment arguments. In most of IJ’s cases, the plaintiffs challenging the programs have raised Blaine Amendment arguments and, in all but three of these Blaine cases, the school choice program at issue was upheld at the end of the day. IJ and its allies have successfully repelled Blaine-based attacks on educational choice programs in Alabama, Arizona, Georgia, Illinois, Indiana, Nevada, New Hampshire, Oklahoma and Wisconsin.
One of the courts that has not agreed with IJ’s arguments is the Colorado Supreme Court. In 2015, Colorado’s high court invalidated Douglas County’s Choice Scholarship Program after a plurality of the justices concluded the program violated one of the (three) Blaine provisions in the Colorado Constitution. IJ, along with the state of Colorado and Douglas County, petitioned the U.S. Supreme Court to review that judgment, arguing that applying the Blaine provision as the Colorado Supreme Court did violates the federal Constitution’s command of neutrality toward religion. The U.S. Supreme Court has not yet decided whether it will hear the case.
Can Blaine Amendments be removed as an obstacle to school choice programs once and for all?
Yes, in the Institute for Justice’s opinion, Blaine Amendments can be removed as an obstacle to school choice programs. During IJ’s 25-year history of defending school choice programs throughout the nation, IJ’s attorneys have worked tirelessly to bury Blaine’s legacy once and for all. A promising sign that IJ will one day prevail came in 2000, when a four-justice plurality of the U.S. Supreme Court summarized the Blaine Amendment’s sordid history in Mitchell v. Helms:
Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
These justices recognized that the Blaine movement was “born of bigotry” and argued that Blaine’s legacy should be “buried now.”
Moreover, not only are members of the U.S. Supreme Court showing increasing recognition that state Blaine Amendments have a discriminatory pedigree, but the Court has also decided a number of cases where it refused to countenance states’ efforts to justify infringements on free speech and free exercise of religion rights based on expansive interpretations of state Blaine Amendments. For example, in Widmar v. Vincent, 454 U.S. 263 (1981), the Court refused to let Missouri justify its denial of equal access to campus facilities at the University of Missouri to religious groups on the basis of the Blaine Amendment in its state Constitution. Similarly, in Rosenberger v. Rectors & Visitors of the University of Virginia, 515 U.S. 819 (1995), the Court refused to let Virginia justify its denial of student fee subsidies to a religious student publication on the basis of Virginia’s Blaine Amendment. Missouri and Virginia happen to be two states that have consistently interpreted their Blaine Amendments expansively to restrict parental choice.
When a state denies a student or his or her family educational assistance because that student is attending a religious school—while providing such assistance to students whose families have chosen non-religious private schools for their children—it is discriminating on the basis of religion. Where the family is religiously motivated in choosing the religious school, the discrimination both denies the free exercise of religion and constitutes viewpoint discrimination under the Free Speech Clause of the First Amendment. And by classifying on the basis of religion (a suspect classification that must be subjected to strict scrutiny) without a compelling need to do so, states also violate the Equal Protection Clause of the Fourteenth Amendment. Under the Supremacy Clause of the U.S. Constitution, courts must avoid state constitutional interpretations that infringe upon federally protected rights. Thus, IJ believes that interpretations of state Blaine Amendments that exclude religious options from school choice programs violate federal rights.
School choice opponents often seek solace for their “it is OK to discriminate against religion” argument in the U.S. Supreme Court’s 2004 decision in Locke v. Davey, 540 U.S. 712. In Locke, the U.S. Supreme Court permitted the state of Washington to prohibit recipients of state-funded scholarships from using their scholarships to be trained as ministers. In so doing, the Court identified several critical factors limiting the decision’s reach beyond the peculiar facts of the case itself. First, the Court emphasized that the only governmental interest implicated by the prohibition was the “State’s interest in not funding the religious training of clergy.” Id. at 722 n.5. Second, it stressed the fact that, “[f]ar from evincing . . . hostility toward religion,” Washington’s scholarship program went “a long way toward including religion in its benefits” by, among other things, “permit[ting] students to attend pervasively religious schools” and pursue non-ministerial degrees. Id. at 724. Third, it noted that “Blaine Amendment[s],” which have been “linked with anti-Catholicism,” were not at issue in the case. Id. at 723 n.7. Given that (1) the state interest identified in Locke is not applicable to K–12 school choice programs, (2) any properly designed program will be neutral with regard to religion, and (3) the Blaine Amendment issue was not considered in the case, Locke has no applicability to the question of whether Blaine Amendments may be used to discriminate against religion in an otherwise neutral school choice program.
Of course, the question of whether the use of Blaine Amendments to bar school choice programs that permit parents to select religiously affiliated schools passes federal constitutional muster is one that only the U.S. Supreme Court can definitively resolve. A case currently before the Court could bear on the answer. That case is Trinity Lutheran Church of Columbia v. Pauley, in which Missouri, relying on its Blaine Amendment, barred a church-run preschool from participating in a publicly funded playground resurfacing program solely because the preschool was religious. The church challenged its exclusion from the program but lost in the lower courts. The U.S. Supreme Court will hear the church’s appeal on April 19, 2017, and will presumably resolve the question of whether the state’s Blaine-based exclusion violates the U.S. Constitution.
How the Court resolves Trinity Lutheran could have a significant positive impact on the school choice movement, but it is less likely to have a negative one. That is because a ruling against the state could expand school choice by removing a principal anti-choice argument, while a ruling upholding the ban may not impact school choice programs because such aid is always directed to individual parents rather than to the schools themselves. IJ argued as much in its “friend-of-the-court” brief submitted in Trinity Lutheran.
The U.S. Supreme Court typically resolves cases on narrow grounds whenever possible. Thus, even if the Court holds that applying Missouri’s Blaine Amendment to ban churches from a playground resurfacing program violates the federal Constitution, it may not speak directly to the Blaine issue as it relates to school choice programs. Rather, it may give lower courts the opportunity, in future cases, to consider and resolve that issue, in light of the legal principles it announces in Trinity Lutheran. In other words, there would still be more work for IJ to do in defending school choice in the lower courts. That would likely include the Douglas County case specifically, as the U.S. Supreme Court would probably remand that case to the Colorado Supreme Court for reconsideration in light of the Trinity Lutheran decision.
On the other hand, the U.S. Supreme Court could also hold that Missouri’s exclusion of churches from its playground resurfacing program does not violate the U.S. Constitution. In that case, the Court would again likely rule on narrow grounds, addressing only the specific program before it. IJ’s friend-of-the-court brief provided the Court a roadmap for making that narrow decision if it is inclined to rule against the preschool at issue in this case.
Specifically, IJ highlighted the distinction between Missouri’s playground resurfacing program, which provides aid directly to schools and other institutions as institutions, and school choice programs, which provide aid to individuals. This is an important distinction. IJ’s brief further stressed that its Douglas County case is the perfect vehicle for resolving whether it is permissible for Blaine Amendments to ban religious options in public benefit programs.
No matter what happens in the Trinity Lutheran and Douglas County cases, the Institute for Justice will not rest until all parents have the freedom to secure the best educational options for their children.