September 2002 Church & State | Featured

Just days after the U.S. Supreme Court upheld voucher aid to religious schools on June 27, New York State Assemblyman Dov Hikind began plotting his next move.

"We have to take up the cause," the Brooklyn Democrat told the New York Daily News. Hikind added that many of his constituents are Orthodox Jews who would like vouchers to pay for Jewish day schools.

But even Hikind acknowledges a potential serious obstacle: A section of the New York Constitution explicitly bars public funding of religious schools. Known as a "Blaine amendment," the provision has been part of the state constitution since 1894. Voucher advocates know that the New York language and provisions like it in three dozen other state constitutions represent a significant roadblock to their crusade and they are preparing to get rid of them.

The fight over Blaine amendments will likely be the next big battleground over school funding. In Washington, D.C., voucher booster Kevin Hasson of the Becket Fund for Religious Liberty, a conservative Catholic-oriented legal group, has already announced his intention to go after Blaine amendments in the states.

"Blaine amendments," Hasson told The New York Times June 30, "are a dirty little secret from the anti-immigrant past. They not only get in the way of vouchers and prohibit other sorts of useful aid, but they enshrine bigotry in many state constitutions."

At the same time Hasson was fulminating against Blaine amendments, the Institute for Justice, another pro-voucher organization, was launching its own campaign. Normally skeptical of federal control, Institute lawyers are suddenly arguing that the First Amendment means that Blaine amendments must be declared null and void.

What are Blaine amendments, and why do they have the pro-voucher crowd so worked up? The short answer is that Blaine amendments are provisions in state constitutions that explicitly bar tax assistance to religious schools. Three fourths of the states have them, and if they are interpreted broadly, the language could quickly shut down voucher programs in much of the country.

The Supreme Court's recent decision in Zelman v. Simmons-Harris didn't mandate that any state start a voucher program. It said that states may create them under certain conditions. The ruling moved the issue from the federal courtrooms to the state legislatures and courts.

Both voucher foes and proponents expect to see a flood of bills in state capitols later this year and next, as summer recesses wind down and law-making sessions resume. The unanswered question is what will happen in states with Blaine amendments. If voucher bills pass, can they be struck down for violating state constitutional provisions?

Groups like the Becket Fund and the Institute for Justice certainly seem to think so and they've set their sights on eliminating the Blaine amendments by any means possible. They will have plenty of help from Focus on the Family and allied Religious Right organizations.

To achieve their goals, voucher proponents must first demonize the Blaine amendments. Their favorite tactic is to assert that the provisions spring from 19th-century anti-Catholicism. They assert that the amendments' namesake, James G. Blaine, speaker of the House of Representatives after the Civil War and later a U.S. senator, was an anti-Catholic bigot who wanted to ensure that no Catholic institution ever got tax funds.

The truth is more complex. Blaine, who represented the state of Maine as a House member from 1863-1876, as a senator from 1876-1881 and ran for president three times, probably was motivated by a desire to advance his political career by tapping into anti-Catholic animus but that does not mean that every state constitutional provision barring tax aid to religious schools is Blaine's handiwork.

In fact, some "Blaine amendments" have nothing to do with Blaine. In Massachusetts, the Becket Fund has filed a federal lawsuit to overturn Article XLVI, Section 2 of the state constitution, which states that "no grant, appropriation or use of public money or property or loan of credit" shall be made in support of religious institutions. The language dates from 1854, before Blaine entered politics. (The Becket Fund insists that the language was the result of an anti-Catholic political party called the "Know-Nothings.")

Long before Blaine was born, many states had provisions in their constitutions barring diversion of tax money to religious ministries and other sectarian institutions. These constitutions do not specifically mention religious schools because at that time education was not seen as a government concern. Thus, there was no competition between public and private institutions for funds.

"My argument has long been that the underlying rule about not paying for parochial schools predates the influx of Catholic immigration in the late 19th century," said Steven K. Green, former legal director for Americans United.

Green, who has researched the history of the Blaine amendment, notes that in the 1820s a dispute arose in New York City over funding of day schools. A group called the Free School Society, which ran non-sectarian schools, protested a plan by a Baptist church to open a school for poor children with public funds. The Free School Society argued that tax aid should not go to denominational schools. Legislators agreed and voted to restrict funding to non-sectarian institutions.

"The origins of the 'no-aid' rule predate by about 10 years the first drive by the Catholic Church to receive funding for its schools," observes Green, now a law professor at Willamette University College of Law in Salem, Oregon. "That does not deny the fact that the concept was sometimes used against Catholics, but the constitutional principle against funding religious institutions developed apart from anti-Catholic animus."

Green also notes that the rise of public education for the masses in the latter half of the 19th century sparked an ongoing national discussion about funding for religious institutions. As public education took hold, some states modified their constitutions to restrict funding only to public schools.

The Becket Fund and other pro-voucher groups insist that bigotry against Catholicism lurked behind the adoption of these amendments. Anti-Catholicism was indeed widespread in American society in the late 19th century, but it does not follow that such attitudes spawned all of these provisions.

In the post-Civil War period, formal education a concept for a long time limited to the children of the wealthy became a reality for millions of youngsters. Massachusetts passed the first compulsory school attendance laws in 1852, followed by New York in 1853. Other states quickly followed suit, and by 1918 every state had some form of compulsory attendance law.

Even before compulsory education laws, some legislators has initiated discussions about how the country would pay for educating the masses and were already facing pressures from religious school advocates. As early as 1838, a Roman Catholic prelate in New York pushed for government funding of Catholic schools. Bishop John Hughes insisted that the public schools were infused with Protestantism, making them unsuitable for Catholic students, and thus Catholic schools should receive subsidies from the state.

Lawmakers argued over the matter sporadically for the next 50 years. Finally, in 1894, legislators altered the state constitution, adding language prohibiting the diversion of public funds to religious schools. As part of a compromise, however, lawmakers agreed to continue funding Catholic social agencies, which were providing services to the needy.

Green notes that the ongoing debate over education funding split the two political parties. Republicans called for a universal system of public schools with a federal mandate on the states. Democrats resisted, asserting the concept of states' rights.

"Part of the drive for Blaine amendments came from Republicans, who wanted to ensure that there would be universal, free and non-sectarian public education," Green said. "To try to tar the Blaine amendment solely as anti-Catholic is short-sighted. To be sure, there was some of that in the debate, but that was not the only factor."

Some political leaders of the time realized that what was called the "school problem" might be resolved by removing the "nondenominational" Protestant worship then common in public schools and making them more hospitable to Catholics. In 1875, President Ulysses S. Grant proposed a constitutional amendment that would require states to maintain a system of public schools free from sectarian influences and bar appropriations of tax aid to religious schools.

Addressing a convention of the Society of the Army of Tennessee in Des Moines on Sept. 30, 1875, Grant asserted, "Encourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to the support of any sectarian schools. Resolve that neither the state nor the nation, nor both combined, shall support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan or atheistical dogmas. Leave the matter of religion to the family altar, the church and the private school, supported entirely by private contributions. Keep the church and state forever separate."

As president, Grant had no power to introduce the amendment on his own. In the House of Representatives, that task fell to Blaine. Unfortunately, the Maine Republican did not embrace Grant's entire vision. Blaine's amendment, when introduced later that year, contained only one of Grant's proposals the provision barring tax aid to sectarian institutions. It did not require states to establish public schools and did not address sectarian instruction in them.

Blaine's amendment was put on a fast track and altered in committee to include language stating, "no such particular creed or tenets shall be taught" in any tax-supported school. Paradoxically, it then went on to state that the last measure was not intended to "prohibit the reading of the Bible in any school." (This last provision was added at the behest of the National Reform Association, a Christian Coalition-style organization active during the post-Civil War period. It probably sealed the measure's defeat.)

The new version passed the House but failed to gain the necessary two-thirds vote in the Senate. Congress, however, did pass a law requiring that every state admitted to the union after 1876 put a provision in its constitution stating that it would maintain a public school system "free from sectarian control."

Some researchers who have studied the history of Blaine amendments have maintained that by "sectarian," 19th-century lawmakers really meant "Roman Catholic." Some lawmakers undoubtedly did believe this, but it was clearly not Grant's intent. He wanted all religious favoritism out of the schools.

In a December 1875 message to Congress, Grant again advocated passage of a constitutional amendment "making it the duty of each of the several states to establish and forever maintain free public schools adequate to the education of all children...[and] forbidding the teaching in said schools of religious, atheistic or pagan tenets." Grant also called for a provision barring tax aid to religious schools.

A certain degree of anti-Catholicism was a fixture on the political scene at the time. The country was undergoing a difficult transition. Still reeling from the Civil War and the effects of Reconstruction, the nation was also grappling with issues of immigration. As huge waves of immigrants from predominantly Catholic nations like Ireland, Italy and Poland arrived in America, an anti-immigrant "nativist" movement grew in power. Often anti-Catholic, the nativists charged that the new arrivals were taking jobs meant for U.S.-born citizens.

In Rome, a series of ultra-conservative popes only inflamed the situation by issuing statements that seemed to attack core American principles. In 1864, for example, Pope Pius IX issued the "Syllabus of Errors," a document that called on governments to give favored treatment to Catholicism and specifically repudiated the concept of religious freedom.

Section 55 of the Syllabus condemns the idea that "The Church should be separated from the State and the State from the Church."

Statements like this emanating from Rome stirred up many Protestants, and Blaine did not hesitate to tap into that fear in his quest for the presidency. He played up the issue, hoping to secure the GOP nomination in 1876. When that effort failed and the Republicans nominated Ohio governor Rutherford B. Hayes, Blaine seemed to lose interest in the amendment. Despite his prominent position in the House, Blaine did not even try to influence the debate there. In his memoirs, published in 1884, the amendment went unmentioned.

Although Blaine used the amendment to win political support from the Republicans' anti-Catholic wing, there is no evidence he was personally anti-Catholic. He was a nominal Presbyterian, but his mother was Catholic, and he sent his daughters to a Catholic-run boarding school.

Some legislators of the time may have seen the Blaine amendment and its state variants as vehicles to assail Catholicism while safeguarding Protestant religiosity in the public schools. But if that was their strategy, it quickly backfired. In the late 19th century, several state courts declared devotional Bible reading, prayer and other forms of worship in public schools unconstitutional. In 1872, for example, the Ohio Supreme Court struck down mandatory Protestant practices in the state's public schools, rejecting the argument that Bible reading was not a sectarian activity and writing that those who put forth such a position "can hardly be serious."

In this respect, the Blaine language actually helped Roman Catholics and other religious minorities by making public schools religiously neutral in some states long before the U.S. Supreme Court would rule mandatory and coercive religious practices in public schools which were Protestant in most states unconstitutional in 1962 and '63.

Nevertheless, pro-voucher groups have marked state Blaine amendments for extinction. In a recent essay, Eric W. Treene, senior counsel for the Becket Fund, outlines three strategies for doing away with Blaine amendments: persuading state courts to interpret them narrowly, having federal courts declare them in conflict with the First Amendment and persuading voters to repeal them through ballot referenda.

Pro-voucher organizations have already achieved some victories on the first two fronts. Both the Ohio and Wisconsin constitutions contain Blaine amendments, but the supreme courts in those states upheld vouchers anyway. (A court in Florida, however, recently ruled the opposite way, striking down that state's voucher program as a violation of the state's Blaine amendment. See "Voucher Victory," page 7.)

One federal appeals court has held that a Blaine amendment conflicts with the First Amendment. In Davey v. Locke, the 9th Circuit Court of Appeals ruled 2-1 in July that a high school graduate could use a state-funded "Promise Scholarship" to study at a seminary, despite language in the Washington Constitution explicitly barring any diversion of tax money to religious institutions.

The third prong of the Becket Fund strategy may prove the most difficult. Despite repeated claims that Blaine amendments are anti-Catholic, voters seem to like them. Treen insists that when voters are "educated" about Blaine amendments, they will see them as "barriers to the democratic process" and "sheer exercises of power by a religious majority against a feared and despised minority."

In fact, this has not been the case, even in heavily Catholic Massachusetts. Pro-voucher forces have tried twice to have the Blaine language removed by referendum. The vote in 1982 was 62 percent against to 38 percent for. In 1986, the "no" vote increased to 70 percent, with 30 percent in favor.

Efforts to repeal Blaine amendments in other states have failed as well. Most recently, voters in California and Michigan in 2000 rejected ballot referenda that would have repealed Blaine language and established voucher plans in the states. The vote in California was 70 percent against and 30 percent for, and in Michigan it was 69 percent against and 31 percent for.

Blaine opponents did succeed once in removing these protections from a state constitution and that example underscores the dangers of making such changes. In 1973, lawmakers in Louisiana convened a constitutional convention to update the state's antiquated constitution. Lobbyists for the Roman Catholic Church succeeded in removing the Blaine amendment, and voters later ratified the new constitution. Louisiana immediately began funneling millions in state aid to parochial schools. Today, its public school system is regarded as one of the worst in the nation.

Despite their origins, Green argues that Blaine amendments serve the public interest, and that's why people support them.

"It indicated some foresight on the part of the various states when they adopted these provisions," Green remarked. "This was a way to ensure universal, free public education not under sectarian control. We cannot discount that fact, and people still see that as important in maintaining these constitutional provisions."

Americans United Executive Director Barry W. Lynn said his group will defend Blaine amendments in the states and when possible will use them to block state-based voucher schemes.

"Now that the Supreme Court has upheld vouchers for private religious schools, state constitutional provisions barring tax aid to religious schools provide an important second line of defense," Lynn said. "We will defend these provisions and see to it that they are properly interpreted by state courts."