What are Blaine Amendments?
Blaine Amendments 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 any provision that specifically prohibits state legislatures (and often other governmental entities) from appropriating funds to religious sects or institutions, including religious schools, to be a Blaine Amendment.
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 constitution of every western state has a Blaine Amendment in it, as do the constitutions of approximately half of the states east of Mississippi.
Why have opponents of parental choice in education focused for so long on Blaine Amendments as a primary means of derailing educational choice programs?
Since the modern educational choice movement began in Milwaukee in 1991, opponents of choice have sought to halt parental 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 confronted and overcome claims that parental choice programs violate state Blaine Amendments in a number of state cases.
How does the U.S. Supreme Court’s opinion in Espinoza v. Montana Department of Revenue impact state Blaine Amendments?
The Institute for Justice has long maintained that applying state Blaine Amendments to prohibit parents from choosing religious schools in school choice programs violates the federal Constitution. On June 30, 2020, the U.S. Supreme Court agreed, vindicating IJ’s decades-long legal strategy to remove Blaine Amendments as a legal obstacle to robust educational choice programs. In the landmark case Espinoza v. Montana Department of Revenue, the Court ruled that it is unconstitutional to exclude religious schools from private educational choice programs. The Court’s opinion, authored by, Chief Justice John Roberts, affirmed that while a state need not subsidize private education, “once a [s]tate decides to do so, it cannot disqualify some private schools solely because they are religious.” Indeed, the Espinoza decision called discrimination against religious parents and schools in the operation of an educational choice program “odious to our Constitution.”
As a result of Espinoza, state policymakers are now free to enact educational choice programs that will enable parents to pay for the private educational environment, religious or nonreligious, that works best for their children. Of course, each state has a unique history, context, and constitution. That is why IJ produced a 50-state guide analyzing each state’s constitution and explaining how Espinoza impacts policymakers’ ability to enact educational choice programs.