Cover Story

Breaking through Blaine's roadblock

"Breaking through Blaine's roadblock" Continued...

Issue: "Ghost busting," Aug. 24, 2002

But that did not end the matter. Blaine remained a prominent GOP leader for the next 16 years and served twice as Secretary of State. He became his party's presidential nominee in 1884, only to lose narrowly to what one of his supporters called the party of "Rum, Romanism, and Rebellion." And other Blaine supporters kept alive his bigotry and political strategy by placing "Blaine Amendments" in state constitutions. Many Northern states did so voluntarily, and Congress often required Western territories joining the union to enact such articles. Some Southern states, animated by anti-Catholicism and losing the Dabney vision, joined in at various times.

The Becket Foundation for Religious Liberty has detailed the history of many Blaine Amendments and reported recent judicial interpretations of them. The Ohio Supreme Court ruled that the Cleveland voucher plan did not violate Section 2, Article VI of the Ohio constitution, which states that "no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state," because through the voucher program school funds would reach such "sects" only through the "independent decisions of parents and students."

The Wisconsin Supreme Court concluded in Jackson vs. Benson that the Milwaukee school-choice plan did not violate that state's Blaine Amendment, which stipulates, "nor shall any money be drawn from the treasury for the benefit of religious societies, or religious and theological seminaries." The Court ruled that the phrase "for the benefit of" should be construed strictly and did not apply to incidental benefits.

Texas' Blaine Amendment is also vulnerable, according to a footnote in the Texas Supreme Court's 1995 decision in Edgewood Independent School District vs. Meno. Then-Justice John Cornyn-now the Attorney General of Texas and a candidate for the U.S. Senate-wrote that the Texas constitution does not require education for the public to be provided solely by a state agency: "As long as the Legislature establishes a suitable regime that provides for a general diffusion of knowledge, the Legislature may decide whether the regime should be administered by a state agency, by the [school] districts themselves, or by any other means."

Arizona's Supreme Court in 1999 examined that state's educational tax-credit law in light of Article 2, section 12 of the Arizona constitution: "No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment." The court in Kotterman vs. Killian upheld the tax credit, noting that no money "ever enters the state's control as a result of this tax credit.... Thus, under any common understanding of the words, we are not here dealing with 'public money.'" The Arizona court also noted that Blaine Amendments were a "clear manifestation of religious bigotry ... we would be hard pressed to divorce the amendment's language from the insidious discriminatory intent that prompted it."

Courts in other states with Blaine Amendments may also be deciding whether to construe them narrowly, construe them broadly but attack their constitutionality, or uphold them by kicking out any religious programs using money from state coffers. Missouri, for example, has a very thorough Blaine Amendment that forbids any government body ever to "pay from any public fund whatever, anything" that would "sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever." If a Missouri legislature were inclined to support school choice, it might be wise to follow the tax-credit route, whereby money that sustains the schools parents choose never gets into a public fund.

Of course, all these considerations may become moot if the U.S. Supreme Court gets involved in reviewing Blaine Amendments. That became more probable last month when a panel of the 9th U.S. Circuit Court of Appeals said that the State of Washington's Blaine Amendment action-denying a state scholarship to Joshua Davey, who intended to use it to study to be a pastor-violated the student's First Amendment right to the free exercise of religion.

Recent Supreme Court precedents-including Rosenberger vs. University of Virginia and Good News Club vs. Milford-have not supported government actions that discriminate against religious practices and institutions. So the Supreme Court may very well disavow the Blaine Amendments directly, or bury them along the lines of the majority opinion authored by Chief Justice William H. Rehnquist two months ago in Zelman vs. Simmons-Harris: "The Ohio program is entirely neutral with respect to religion (and permits) genuine choice among options public and private, secular and religious." When aid is given to parents, not directly to schools, it is directly supporting parental choice, and only indirectly the school that the parents choose.

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