Supporters of the proposal then turned their attention to state legislatures, where their efforts were met with far greater success: Eventually, all but 11 states (Arkansas, Connecticut, Louisiana, Maine, Maryland, New Jersey, North Carolina, Rhode Island, Tennessee, Vermont, and West Virginia) passed laws that meet the general criteria for designation as "Blaine Amendments," in that they ban the use of public funds to support sectarian private schools. In some states the laws were included in constitutions drafted by newly-formed states concomitant with their admission to the Union and are thus technically not "amendments". The state Blaine amendments are still in effect in many states.What are Blaine Amendments?
Blaine Amendments are provisions in dozens of state constitutions that prohibit the use of state funds at "sectarian" schools. They're named for James G. Blaine, who proposed such an amendment to the U.S. Constitution while he was Speaker of the U.S. House of Representatives in 1875. The amendment passed overwhelmingly (180-7) in the House, but failed (by 4 votes) in the Senate. Although the amendment failed narrowly, state-level versions were wildly successful. And in several states, adoption of Blaine Amendments was made an explicit condition for entering the Union.Today, 37 states have provisions placing some form of restriction on government aid to "sectarian" schools and their equivalents that go far beyond any limits in the U.S. Constitution.
Now that the Supreme Court has cleared the last remaining federal obstacle to school choice programs (Zelman held that well designed voucher programs do not violate the Establishment Clause), supporters are finding that their states' Blaine Amendments may prohibit such programs.
It was not widely appreciated until recently that Blaine Amendments were passed as a direct result of the nativist, anti-Catholic bigotry that was a recurring theme in American politics during the 19th and early 20th centuries. Finally, in the Supreme Court's Mitchell v. Helms decision in 2000, the four-Justice plurality explicitly recognized that use of the term "pervasively sectarian" in law was a "doctrine born of bigotry [that] should be buried now." Justice Breyer's dissent in Zelman v. Simmons-Harris further acknowledges this tainted history. After Locke v. Davey in 2004, the court made clear that since Blaine Amendments "have been linked with anti-Catholicism" they are unique creatures that merit especially close examination, suggesting that they may be buried by the court soon.
The Becket Fund for Religious Liberty is currently challenging the legality of several Blaine Amendments as violations of the U.S. Constitution. In a series of Supreme Court amicus briefs—first in Mitchell, then in Zelman, and again in Locke—The Becket Fund has worked to build awareness among the Justices of the role of nativism in the history of hostility toward funds for religious schools. We're also raising the issue before state supreme courts, filing amicus briefs in Gallwey v. Grimm before the Washington Supreme Court, and in Bush v. Holmes before the Florida Supreme Court. And have also submitted an amicus brief in the 10th Circuit. News articles in The New York Times, The Legal Times, World Magazine and other publications have recognized The Becket Fund's role in this effort.
This website is offered as a resource to all who wish to explore the subject further.
