In 1875, James Blaine – a U.S. congressman from Maine, speaker of the House, senator, and three-time candidate for president – proposed an amendment to the U.S. Constitution prohibiting state governments from funding religious education.
Why? Americans (a majority of whom were Protestant) and American public schools (which were de facto Protestant-run) were reacting to an influx of immigrants, mostly Irish, who were majority Catholic and who began to operate their own private schools as an alternative to the existing public-school offerings. Some feared that these new Catholic schools would receive public funding, just as the government-run schools received. So Blaine proposed amending the Constitution to prohibit these religious-sponsored schools from receiving tax funding in any form.
The language of the proposed amendment was as follows:
“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”
The amendment passed the House of Representatives with a vote of 180-7 but fell short of getting the necessary two-thirds vote in the Senate.
Unfortunately, the effort at religious discrimination did not end there. Proponents of the amendment took it to the state level and were successful in inserting some version of it into 38 state constitutions, including Utah’s.
From Article I Section 4 of the Utah State Constitution:
“The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror because of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.”
And from Article X Section 9:
“Neither the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization.”
The effects of these state amendments have been pernicious.
In 1979 Larry Witters applied for funds offered by the state of Washington to help the visually impaired attend college. He wanted to study to become a minister but was denied funding under the program by the state, which argued it violated the Establishment Clause under the First Amendment of the Constitution. Witters appealed, taking it all the way to the U.S. Supreme Court, and in fact won. Unfortunately, that wasn’t the end of Washington state’s efforts to deny Witters equal access to the schooling funds. They used the state’s Blaine Amendment to refuse Witter the education funds. The Washington State Supreme Court upheld that refusal, but this time the Supreme Court didn’t take up the case, leaving the state court’s ruling in place and ending Witter’s bid for college.
More recently, Missouri offered a grant to qualifying schools to purchase playground surfaces made of shredded tires. The surfaces are safer for children to play on and reduce used tire waste. The state allocates a finite amount of funds to the grant program, so not every school that applies can receive them. Applicants are ranked based on set criteria, and the highest scoring schools are given the grant. A private preschool owned and operated by a Lutheran church applied and was a top five qualifier for the program, but it was denied by the state based solely on the fact that it was a church. The school appealed the decision, and this too went all the way to the Supreme Court. This time the court ruled in favor of the private school, saying:
This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.
Trinity Lutheran is not claiming any entitlement to a subsidy. It is asserting a right to participate in a government benefit program without having to disavow its religious character.
The court asserted that the Constitution doesn’t only prevent the establishment of a religion. Through the Free Exercise Clause, it also prohibits penalties on the free exercise of religion. Missouri excluded Trinity Lutheran from publicly available benefits simply because it was a church, putting it in the position of either receiving those publicly available funds or exercising its religion. The Supreme Court found that to be unconstitutional.
Many see this court decision as groundbreaking because it reinforces the notion that the Constitution protects the free exercise of religion and that believers in religion cannot be excluded from the public domain because of their beliefs.
More specifically, it means state Blaine Amendments, and how they’ve been enforced, will continue to receive scrutiny. Already the Supreme Court has referred current lawsuits back to lower courts for review considering the Trinity Lutheran decision.
Supreme Court Decision: Trinity Lutheran v Missouri Department of Natural Resources
Biographical Directory of US Congress: James G. Blaine
New York Times: Supreme Court Ruling Could Shape Future of School Choice
US Commission on Civil Rights: The Blaine Amendments & Anti-Catholicism
Utah Constitution: Article I Section 4
Utah Constitution: Article X Section 9
Brigham Young University First Amendment Law Review: Reconstructing the Blaine Amendments
Fordham Law Review: Secularism’s Laws: State Blaine Amendments and Religious Persecution