On July 18, just three weeks after the Court’s landmark Zelman ruling, members of the United States Court of Appeals for the Ninth Circuit voted 2-1 to invalidate a Washington State law that was used to deny a state “Promise Scholarship” to an otherwise-eligible college student because the student was studying theology at a religious institution.
“A state law may not offer a benefit to all … but exclude some on the basis of religion,” wrote Judge Pamela Ann Rymer in Davey v. Locke.
The state defended the discriminatory policy under the religious establishment clause of its state constitution, which contains “one of the most notorious and broadly construed Blaine Amendments in the nation,” according to the Institute for Justice.
“Washington’s interest in avoiding conflict with its own constitutional constraint against applying money to religious instruction is not a compelling reason to withhold scholarship funds for a college education from an eligible student just because he personally decides to pursue a degree in theology,” wrote Rymer. Her decision, in effect, finds the state’s Blaine amendment in conflict with the U.S. Constitution and overrules it.
Jay Sekulow, chief counsel for the American Center for Law and Justice, which represented the successful plaintiff, called the ruling “a resounding victory for equal treatment of people of faith.”
However, the 2-1 decision may not be the last word. It can be appealed to the full Circuit Court bench, and ultimately to the U.S. Supreme Court. Nevertheless, this first post-Zelman ruling indicates the possibility that Blaine’s heritage of bigotry may be dying.
Blaine Amendment History
One of the most shameful episodes in United States history has been the inclusion in many state constitutions of what are termed “Blaine amendments,” which prohibit public funding of religious schools. These amendments were said to be necessary to apply the “separation of church and state” doctrine to state constitutions, but their true motivation was far less noble. Blaine amendments in fact were the result of widespread anti-Catholic bigotry in the 1800s.
Since the U.S. Supreme Court decided on June 27 that the federal Establishment Clause is not violated by the participation of religious schools in school choice programs, an important new question has surfaced: Do Blaine-type provisions in state constitutions violate the U.S. Constitution’s requirement of neutrality toward religion?
Opponents of publicly funded school choice frequently cite a constitutional prohibition against the use of public funds at religious institutions. The U.S. Constitution, however, contains no such prohibition. The name “Blaine amendment” comes from the unsuccessful efforts in the mid-1870s of Congressman James Blaine to amend the U.S. Constitution to prohibit public funding for nonpublic religious schools.
Blaine’s efforts, supported by President Ulysses S. Grant, grew out of anti-Catholic bigotry that began during the growing Catholic immigration of the 1840s. Earlier Catholic immigration had been relatively minor.
Although Blaine’s effort to amend the U.S. Constitution failed, Congress subsequently required such provisions as a condition of statehood, adding coercion to bigotry. Many territories became states with Blaine amendments in their constitutions. The term “Blaine amendment” is now generally applied to all such amendments, whenever adopted, because they are similar in wording and purpose. Most have their origin in anti-Catholicism.
Beginning with New Jersey in 1844, 20 states had adopted such restrictions by 1897. From 1848 until 1869, 14 states entered the Union with Blaine amendments. Utah in 1907, and New Mexico and Arizona in 1912, did so after the end of the nineteenth century.
Public schools in the 1800s were essentially Protestant schools. When Catholics requested public funds for their schools, their request was denied. The Blaine amendments were aimed at making that denial permanent. Until the U.S. Supreme Court began restricting such practices in recent years, the public schools of the nation continued prayers in school, Bible reading in school—so long as the Bible was a Protestant one—and religious classes in school during regular school hours.
Everson and Blaine
The U.S. Supreme Court began the contemporary controversy over the restriction of religious expression in public life with its Everson decision of 1947, when it cited the “wall of separation between church and state.” That was a phrase first used by Thomas Jefferson in a letter in 1801, 14 years after the adoption of the U.S. Constitution, which was created in 1787 by a convention that Jefferson not only did not attend, but which occurred when he wasn’t even in the country.
In Everson, the 1947 Court ruled any aid or benefit to religion from government action is unconstitutional. The Court combined the First and Fourteenth amendments to arrive at this totally new conclusion, generations after the Constitution, the Bill of Rights, and even the Fourteenth Amendment, added in 1868, had been adopted. James Blaine and his Congressional colleagues—the generation that adopted the Fourteenth Amendment—saw no such relationship, or they would not have found it necessary to attempt to explicitly amend the Constitution to prohibit aid to religious schools.
Everson, the Dred Scott decision of the 1850s, and the Plessy v. Ferguson decision in the 1890s, may be the U.S. Supreme Court’s three worst decisions. It took the Civil War to negate Dred Scott, which said blacks had no rights a white was required to recognize. Plessy, which held separate but equal facilities for blacks and whites were constitutional, was finally reversed by the Brown v. Board of Education decision of 1954, after decades of intermediate decisions.
Reversing Everson and Blaine
The shame of Blaine may, at long last, similarly be coming to an end. In 1985, Chief Justice William Rehnquist said the Everson decision was wrong and should be reversed. That, however, was a personal, rather than a Court, opinion.
Meaningful movement began in January 2000, when the Arizona Supreme Court upheld a 1997 state tuition tax credit law. The majority opinion specifically referred to Blaine’s effort, terming it “a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment, to counter what was perceived as a growing ‘Catholic menace’ … contemporary sources labeled the amendment part of a plan to ‘institute a general war against the Catholic church.'”
In June 2000, in the U.S. Supreme Court’s Mitchell decision upholding the provision of materials to students in religious schools, Justice Clarence Thomas, for the majority, said “hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow.” Referring to the Blaine amendment by name, he wrote, “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic’ … This doctrine, born of bigotry, should be buried now.”
On June 27, 2002, in its Zelman decision, the Supreme Court held Ohio’s voucher law for Cleveland did not violate the First Amendment’s religion clause. Moreover, Chief Justice Rehnquist, writing for the majority, noted, “Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individual, who, in turn, direct the aid to religious schools or institution of their own choosing. Three times we have rejected such challenges.”
That should settle the question regarding the U.S. Constitution’s First Amendment Establishment Clause. Now the ruling of the Ninth Circuit Court of Appeals begins to settle the question of the First Amendment’s Free Exercise Clause.
David W. Kirkpatrick, a former public school teacher who has been actively and extensively involved in education reform, is the editor-in-chief of Schoolreformers.com, a portal for parents and grassroots activists who care about education in America. His email address is [email protected].
For more information …
The 35-page ruling in Davey v. Locke, issued on July 18, 2002 by the U.S. Court of Appeals for the Ninth Circuit, is available from the Court’s Web site at www.ca9.uscourts.gov/ca9/newopinions.nsf/D3BB2B79B2BAD08688256BFA005882C4/$file/0035962.pdf?openelement.