By DEACON MIKE MANNO, JD
It’s been a long time since I discussed the Blaine Amendments in this space. For those of you who are not familiar with them, let me take a moment to bring you up-to-date. The story goes back to 1875 when a wave of nativism and anti-Catholic bigotry was sweeping the country.
President Grant publicly supported “free schools,” those supported by the government, but opposed using any government funds to support sectarian — read that Catholic — schools. In support of Grant, a former House speaker and then U.S. senator from Maine, James G. Blaine, introduced, as a joint resolution, a constitutional amendment to prevent any public aid to sectarian schools.
The issue of the Blaine Amendment arose at a time of great animosity toward Catholics. In a later Supreme Court case, Mitchell v. Helms (2000), the court described the underlying political attitudes thusly:
“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’.”
The Blaine Amendment passed the House 180 to 7, but failed to win the required two-thirds majority in the Senate. It never became law.
However, the idea behind the amendment caught on and before the turn of the twentieth century, 29 states had adopted some form of the amendment into their state constitutions. These Blaine Amendments, for a time, were even required to be in the constitutions of territories who sought statehood. To date some thirty-eight states have some form of a Blaine Amendment which prohibits public funds from being used to support religious schools.
New York University Professor Joseph P. Viteritti, writing in the Harvard Law Journal, described this as a “remnant of nineteenth-century religious bigotry promulgated by nativist political leaders who were alarmed by the growth of immigrant populations and who had particular disdain for Catholics.”
Unfortunately for Sen. Blaine, his role in the drafting and promoting the amendment caused him to be seen as anti-Catholic and contributed to his defeat in the 1884 presidential election.
But the Blaine Amendments lived on and became a subject of controversy and some spirited legal arguments.
In 2017 the Supreme Court, in Trinity Lutheran v. Comer, ruled that Missouri’s Blaine Amendment did not prohibit a church-operated day-care facility from receiving a state grant to resurface its playground. The court held 7 to 2 that it was “odious to our Constitution” to exclude an otherwise eligible grant recipient solely on account of its religious status.
While many read the opinion as the beginning of the end of the Blaine Amendments, the court made clear in a footnote that the case only applied to “express discrimination based on religious identity with respect to playground resurfacing” and the court was not ruling on the issue of other forms of aid.
Now the Supreme Court is willing to listen to the arguments over the Blaine Amendments again and this time the case involves what can only be described as indirect state aid to private schools.
The state of Montana’s Blaine Amendment reads: “The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriations or payments from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Four years ago Montana enacted a student aid tax credit program in which taxpayers could receive a tax credit up to $150 for contributions made to a student scholarship organization which provided scholarships to either public or private schools. The state Department of Revenue, which was tasked with administrating the program, sensing that the program violated the Blaine Amendment, adopted a rule that “excluded religiously affiliated private schools” from the list of qualified participating schools.
A lawsuit was filed by three parents who had been receiving scholarship funds, designated for low-income families, and who had enrolled their children in Stillwater Christian School. The trial court ruled for the parents, opining that tax credits were not a direct expenditure of state funds and thus the program did not violate the Blaine Amendment.
That was reversed by the Montana Supreme Court, which held the program did violate the constitution because it “permits the legislature to indirectly pay tuition at private, religiously affiliated schools.” While the program could not be used to fund scholarships for religious schools, it could still be used for children attending public schools.
Last March, the parents, with the help of the Institute for Justice, a nonprofit libertarian public interest law firm based in Arlington, Va., filed for review by the Supreme Court. Their lawyers specifically asked “whether government may bar religious options from otherwise neutral and generally available student-aid programs” and argued that the Blaine Amendment violated the Religion and Equal Protection Clauses of the U.S. Constitution.
On the last business day of June, the court accepted the case. While the parents’ application was pending, at least 13 amici briefs were filed with the court, most of them urging it to take the case. As the case moves forward and the focus shifts from the question of why the court should hear the case to how it should rule, we can expect many more amici to appear.
Of course while how the court will rule is at the heart of the issue, the real question may be how broad or narrow will the ruling be. As we’ve pointed out in past columns, the Supreme Court often will not rule beyond the facts of the case in front of it. Thus, the Trinity Lutheran case, which was expected by some to be the death knell for the Blaine Amendments, was only applicable to the issue of public grants for safe playground equipment and had very limited, if any, application to student aid at religious schools.
If you are trying to read the tea leaves, however, there is something to note, and it involves the footnote mentioned above that expressly limited the application of the court’s decision to the particular grant program involved. It is this: Of the seven justices in the majority, two, Thomas and Gorsuch, did not concur with the footnote limiting the decision to the specific program. Gorsuch also suggested the possibility of a distinction between religious status and religious use. And Justice Breyer, who concurred with the result, saw the program as a general government service without a religious connotation.
Is the court formulating a decision up or down on whether or not the Blaine Amendments violate the U.S. Constitution or will this case result in a narrower ruling? Only four justices are required to accept a case, so the court could be as split as the lower courts are on the issue.
We’ll just have to wait until later in its term for the court’s ruling, but there should be at least five votes to up-end Sen. Blaine’s legacy.
(Mike can be reached at: DeaconMike@q.com.)
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