You might not know it, but states all across the nation have constitutional amendments in place that impose discrimination against religious minorities. Most were created in a rush of legislation more than 100 years ago and although their intention was clear at that time, their history has since become more clouded thus preventing legislators from reforming them and courts from striking them down. But now, the U.S. Supreme Court has a chance to eliminate these so-called Blaine Amendments once and for all, and right their historic wrong.
James G. Blaine was one of the most powerful Americans of the 19th Century. Blaine was the Speaker of the House, a senator, and three times Secretary of State. But Blaine’s ambitions were set on the presidency. He tried and failed to secure the Republican nomination twice, was finally nominated on the third try, but lost out to Grover Cleveland in the general election.
His lasting legacy, however, is his attempt as Speaker to pass a federal constitutional amendment that would have prohibited government funding for “sectarian” schools. It was widely understood that sectarian was code for Catholic, in contrast to the nondenominational Protestantism taught in public schools. Public schools of the day were highly religious in their teaching, with children reading the Protestant Bible and praying Protestant prayers.
In 1875, the federal amendment sailed through the U.S. House of Representatives but fell short in the Senate. The effort then went state-by-state with nearly identical amendments successfully added to many state constitutions. Anti-Catholic animus has since faded, yet the amendments were eventually reinterpreted to now explicitly prohibit not just Catholics but people from all faiths from participating in public student-aid programs to secure a quality education for their children.
There is a great deal of confusion in the nation’s federal and state courts about whether parents may select religious options from school choice and student-aid programs or whether the government may (or even must) exclude such options. Some of it is the result of the 2004 U.S. Supreme Court decision in Locke v. Davey in which the court determined that a state could prohibit a student from using public aid to attend school for the specific purpose of joining the ministerial clergy. That decision, however, was a narrow ruling that did not look at the broader question of whether completely excluding religious schools from student-aid programs violates religious freedom. It may be time for the nation’s highest court to clear up that confusion and determine once and for all whether state Blaine amendments square with the First Amendment’s protections for religious liberty.
The Supreme Court this week will consider whether to take up the case of Montana’s scholarship tax-credit program. In 2015, the Montana legislature enacted the state’s first educational choice program. It provides a modest tax credit—$150 annually—to individuals and businesses who donate to private, nonprofit scholarship organizations.
Big Sky Scholarships was formed and started collecting money to award to deserving low-income Montana parents, like Kendra Espinoza. Kendra’s two daughters struggled in their local public school. Kendra started working multiple jobs and fundraising to afford to pay their tuition at a private Christian school. Her daughters are thriving at the school, but without a scholarship they may not be able to stay there.
Courts across the country have found tax credit scholarships programs to be perfectly constitutional, yet the Montana Supreme Court struck down the state’s entire program, both for students who use scholarships to attend religious and non-religious schools. The decision did not give serious consideration to whether the state’s Blaine Amendment violated the First Amendment; dismissing the argument in just a few sentences.
The decision is an open invitation for the U.S. Supreme Court to protect Montanan’s rights. But the result of this case could open up educational options for students nationwide. In addition to representing Kendra and Montana families, the Institute for Justice is representing Maine families in their case challenging the exclusion of religious schools from a program that provides tuition for students who don’t have a public high school in their district. Maine’s restriction isn’t based on a Blaine Amendment, but has language similarly restricting sectarian schools from the program.
A newly passed state-funded scholarship program in Florida could also be challenged under that state’s Blaine Amendment. Finally, legislators in states with Blaine amendments fear passing laws that could be challenged under their state constitutions. Wiping them away could prompt new and innovative educational choice programs across the nation.
James Blaine rightfully faded from American memory a long time ago, but his discriminatory legacy has lasted for more than a century. It stands as a barrier to families seeking to choose the school that is right for their children instead of the one assigned to them by the government by their zip code. Hopefully, the U.S. Supreme Court will decide to hear to Kendra’s appeal and restore Montana’s program so that her children and many others can have greater educational options and thus the chance for brighter futures.
