Bane of Blaine spreading across the plains

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Never heard of the proposed Blaine Amendment to the U.S. Constitution? Neither have most Americans. And even if you’d heard, you’d be forgiven for thinking it was irrelevant, considering it was defeated in the late 19th century. Yet the Blaine Amendment’s influence remains one of the most pernicious threats to religious liberty in the United States today.

Introduced in 1875, the original Blaine Amendment was an attempt to amend the U.S. Constitution by explicitly banning any government funds from going to “sectarian” institutions. The Amendment gained its name from Senator James G. Blaine, who had just finished three terms as Speaker of the House and had his eye on the Republican nomination for the White House.

Senator Blaine introduced the Amendment as a populist measure, attempting to take advantage of the nativist, anti-Catholic backlash against the heavy Irish- and German-Catholic immigration of the mid-19th century. During that time, a Protestant view of the world held sway, most notably in the public schools where students read daily from the Protestant Bible and prayed from the Protestant prayer book.

The growing Catholic population of course paid taxes, too, and the new immigrants sought to preserve their own religious influence on their children’s moral upbringing. In many communities across the United States, the growing religious tension became palpable, sometimes even resulting in violence and riots. The United States Supreme Court has itself noted that, at the time, it was considered an “open secret” that the Blaine Amendment’s proposed restriction against “sects” was code for targeting “Catholics.”

Fortunately, the federal Blaine Amendment failed, although just barely. It passed the House overwhelmingly, only to fall short in the Senate by four votes. But the proposed amendment still had a significant impact. Persuaded by Senator Blaine’s arguments, dozens of states passed Blaine amendments to their state constitutions, and a number of then-territories were later compelled by Congress to do the same as a condition for entering the Union. Today, 38 state constitutions have Blaine amendments that restrict government aid to “sectarian” organizations.

Although many of the amendments have lain relatively dormant for decades, more and more frequently they are being invoked not against Catholics, but against religious believers generally.

In Oklahoma, for example, several school districts recently sued to prevent students with disabilities from receiving special needs scholarships to be used at private schools of the students’ choice. The districts argued that the scholarships violated Oklahoma’s Blaine Amendment because some of the students planned to attend schools that were religiously affiliated. The trial judge essentially agreed, concluding that scholarships could be used at schools that were religious “in name only,” but not schools the state deemed overtly religious.

A court in Missouri recently upheld that state’s decision to exclude a school from receiving benefits awarded to public and private schools, simply because the school was affiliated with a Lutheran church. Secular private schools were not excluded.

Under this logic, state Medicaid funds could be used at state-owned hospitals, but not at Adventist, Lutheran, Catholic, or Baptist hospitals. Recipients of state social services benefits would be barred from going to a Catholic Charities or a Jewish social service agency simply because they are religious. And students awarded state scholarships could attend the university of their choice, unless that choice was a school with a religious affiliation.

The Supreme Court has correctly noted that Blaine amendments were “born of bigotry” and “should be buried now.” When the government makes benefits generally available to its citizens, religion should never be a ground for exclusion. Religious believers should be free to participate in generally available government programs on equal terms with everyone else. The bane of the Blaines is religious discrimination. Their influence should be stopped now.

Eric Baxter is Senior Counsel of the Becket Fund for Religious Liberty. Follow him on Twitter at @esbax