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 parents from choosing 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 26 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, Wisconsin and the Territory of Puerto Rico.
One of the courts that did not agree with IJ’s arguments was 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 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 granted IJ’s petition, vacated the Colorado Supreme Court’s decision (meaning it is no longer good law), and remanded the case for further proceedings in light of the Court’s decision in Trinity Lutheran Church, Inc. v. Comer. In Trinity Lutheran, the Supreme Court declared that the State of Missouri could not rely on its Blaine Amendment to exclude a church-run preschool from a grant program that reimbursed schools for resurfacing playgrounds with recycled rubber. Unfortunately, the Douglas County School Board repealed the Choice Scholarship Program and the Colorado Supreme Court declared the case moot.
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-plus-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.”
Another promising development occurred more recently when the Court struck down Missouri’s effort to exclude a church-run preschool from a state grant program that reimbursed schools for resurfacing their playground with recycled scrap tires. In Trinity Lutheran Church, Inc. v. Comer, the Court said:
[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.
IJ believes the Trinity Lutheran decision is a death sentence to Blaine Amendments. That is why IJ has launched cases in Montana and Maine. These cases are designed to drive our legal arguments, described below, up to the U.S. Supreme Court and to vindicate the right of all parents to access meaningful educational options.
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.