In my last column, I discussed Espinoza v. Montana Department of Revenue. This is a legal case which will be heard by the Supreme Court of the United States (“SCOTUS”) sometime this Fall. The main issue in Espinoza is whether it is unconstitutional to discriminate against religious believers and institutions from receiving public funds that other people and institutions may generally receive.
In Espinoza, the Montana Legislature passed a scholarship tax credit policy to incentive increased charitable giving for children in low-income families to attend the school of their choice. Three low-income families filed a law suit against the Montana Department of Revenue (“Department”) because the Department would not implement the program, claiming the law was unconstitutional because it provided financial assistance to students who attended religious schools. The Department cited their state constitution’s Blaine Amendment, a provision which prohibits public funds from directly or indirectly benefiting a church or sectarian educational institution.
While my previous column alluded to the state’s Blaine Amendment, it did not discuss the bigoted history behind the Blaine Amendment. And as the saying goes, “those who do not learn history are doomed to repeat it.”
The Blaine Amendment is named after James G. Blaine, who served Maine in the House of Representatives and the U.S. Senate from 1863 to 1881. During his tenure in the House, he rose through the ranks and achieved Speaker of the House. Blaine later served as the Secretary of State. He also made three unsuccessful runs for the Presidency, twice he lost the bid for nomination and the third time he won the nomination but was defeated by Grover Cleveland in the 1884 election.
In 1875, as a member of the House of Representatives after he served as Speaker of the House, Blaine offered his Blaine Amendment to the U.S. Constitution. The Amendment stated, in part, that “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.”
While on its face, such a provision might seem sensible, the historical situation provides context to its deeper, bigoted meaning. As Eric Rassbach, a religious liberty expert, recounts: “In the period following the Civil War, anti-immigrant sentiment, particularly against Irish Catholics, was running high. Many saw the newcomers as poor, uneducated and loyal to a foreign power — the pope. They were thus a threat to the American way of life. As a result, many Protestants wanted to ensure that Catholics had no influence in public institutions, particularly in the public schools.”
Rep. Blaine politically capitalized on these fears. As one historian notes: “[T]he proposed amendment served Blaine’s purpose of rallying Protestants to the Republican party and promoting himself as one of the party’s foremost leaders.”
Prof. Rick Garnett, a legal expert on Blaine Amendments, has noted: “Of course, supporters of the Blaine Amendments made it clear that any prohibitions on the use of public funds for K-12 education conducted by ‘sectarian’ institutions would not prevent the continued moral education of public-school children in accordance with Protestant Christian teachings that, in their view, were foundational to America’s greatness and survival. Thus, by adopting Blaine Amendments, state officials were not arguing against the teaching of religion in public schools – they were arguing in favor of a monopoly for the teaching of a ‘common,’ pan-Protestant civic religion.”
In short, the Blaine Amendment proposed to the U.S. Constitution was rooted in an anti-Catholic animus to ban aid to “sectarian” schools, a term which was merely code for Catholic schools.
Unfortunately, Blaine’s constitutional amendment received the necessary two-thirds support from the House (180-7). Fortunately, it did not gain a super-majority in the U.S. Senate and failed to advance in the adoption process. However, this failure simply moved the political campaign to the individual states where nearly 40 states subsequently adopted them, including Nebraska.
As Eric Rassbach has said: “The anti-Catholic history of the Blaine Amendments cannot be whitewashed.” The question now: Will the Supreme Court—nearly 150 years later—finally “put an end to Blaine’s odious legacy” and strike a death blow to Blaine Amendments? To quote Cicero: “While I breathe, I hope!”