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A Blaine Amendment Update
By David W. Kirkpatrick (07/00)

An earlier article in this series concerned so-called "Blaine Amendments," after a constitutional amendment proposed by then Congressman James Blaine in 1875, with the encouragement of Pres. Ulysses Grant. The primary purpose was to prohibit aid to Catholic schools. That attempt failed but the idea was enshrined in 29 state constitutions within the next 15 years where they remain, accompanied by a few others adopted since then.

A number of responses were received, including, recently, an inquiry about states with such amendments. The reply to that inquiry is herein expanded to provide not only that information but evidence that this enshrined bigotry is finally getting long overdue attention.

One very important incident came in January, 1999. Arizona had adopted a universal tuition tax credit plan whereby individuals could receive up to a $500 tax credit for a contribution to nonprofit School Tuition Organizations (STOs) and $200 for contributions for specific purposes in public schools. Taken to court, the result was a January 1999 decision by the Arizona Supreme Court, Kotterman v. Killian, that such credits are constitutional under both the state and federal constitutions. The 84 pages of the decision is well worth reading. It is online at http://www.supreme.state.az.us/opin/pdf99/dv970412.pdf. Both the majority and dissenting opinions referred to Blaine, with the following drawn from the majority view:

"The dissent relies to a great extent on external, peripheral sources such as the Blaine amendment, introduced in Congress more than 100 years ago...The Blaine amendment was 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." It supporters were neither shy nor secretive about their motives...contemporary sources labeled the amendment part of a plan to 'institute a general war against the Catholic church.' While such efforts were unsuccessful at the federal level, the jingoist banner persisted in some states. By 1890, twenty-nine states had incorporated at least some language reminiscent of the Blaine amendment in their own constitutions. There is, however, no recorded history directly linking the amendment with Arizona's constitutional convention. In our judgment, it requires significant speculation to discern such a connection. In any event, we would be hard pressed to divorce the amendment's language from the insidious discriminatory intent that prompted it."
A second recent example has found The Becket Fund for Religious Liberty taking on this issue publicly, in particular waging a legal battle to remove Blaine restrictions in Massachusetts. While not yet successful, an issue with a history of more than 125 years is not one to be resolved lightly. This is particularly so since few are aware of its background and accept it as a given, even placed in the First Amendment by the Founding Fathers which, of course, it was not.

A third encouraging sign, came June 28, when the U.S. Supreme Court, in its 6-3 Mitchell v. Helms decision, upheld the provision of computers and other materials to students in religious schools. Justice Clarence Thomas, who wrote the majority opinion officially recognized the background for this alleged church-state problem in education, when he wrote:

"[N]othing in the establishment clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this court bar it. This doctrine, born of bigotry, should be buried now."
It should be but it won't be; at least not "now." Still, the journey has at last begun.

The Arizona court reported Blaine amendments in 29 states by 1890, a count at minor variance with the following list, which has 30 at that time, and eight more subsequently.

Here's a chronological list by years of adoption of amendments to state constitutions:

1844, New Jersey; 1850, Michigan;1851: Ohio & Indiana; 1855: Massachusetts;

1857, Iowa; 1868: South Carolina & Arkansas; 1870: Illinois; 1872: Pennsylvania;

1875, Alabama & Missouri; 1876: North Carolina & Texas; 1877: Minnesota & Georgia;

1879: California & Louisiana LA; 1885: Florida; and 1897, Delaware.

Seventeen states entered the union with a Blaine amendment. They are:
1848, Wisconsin; 1857, Oregon; 1859, Kansas; 1864, Nevada; 1867, Nebraska;

1872, West Virginia; 1876, Colorado; 1889, Montana, North & South Dakota, and Washington;

1890, Idaho & Wyoming; 1896, Utah; 1907, Oklahoma; and 1912, New Mexico & Arizona.

That's a total of 38.

A few caveats are in order.

First, not all Blaine amendments are the same; some are much clearer and stricter than others. The most severe is probably that adopted in Michigan in 1970 which, because the term had appeared by then, explicitly includes vouchers in its list of prohibitions.

Second, there is some question about including some of the states at all. For example, some list Pennsylvania but many lawyers in the state, both in the Administration and in private practice, don't agree and hold that the problem is only with the federal courts. To date the issue has not been specifically resolved by the Commonwealth's courts.

Third, the following list is indicative, not definitive, although it is basically correct. State constitutions get amended from time to time, not to mention court decisions, such as the one in Arizona. An example of the former is, again, Michigan. That state, second in 1850, before Blaine was on the national political scene, as noted, adopted its present extreme wording in 1970.

In brief this battle over public and nonpublic schools did not originate with the Founding Fathers, or the First Amendment. For one thing, there weren't any public school systems at that time. The Founding Fathers were themselves the products of religious schools, homeschooling, or were largely self-taught.

The controversy has a great deal to do with religious bigotry and, in 1947, an unprecedented decision by the U.S. Supreme Court, Everson v. Board of Education, Ewing Township, NJ, to link together the 1st and 14th Amendments, thereby discovering a new constitutional principle. After all, the First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Don't forget that "or prohibiting the free exercise thereof..." Most opponents of school choice, or public display of religious sentiment do. They only mention the first ten words, or even omit them, because the prohibition is clearly on Congress and establishing a religion by which, at that time, meant public funding for a national church, like the Church of England. In fact, official churches had existed, or then still existed, in nine of the new 13 states.

It's fair to note that the 14th Amendment had been adopted in the 1860s, before Pres. Grant, Rep. Blaine, and others began the drive to abolish aid to nonpublic schools which, by the way, had been common through the first half of the 19th century. Obviously they saw no such link between the 1st and 14th amendment. If they had they wouldn't have tried to amend the Constitution to place within it something that was already there. The 1947 Court created this principle out of thin air. As Thomas Jefferson and James Madison, among others, said, the growth of the Court's powers was something to fear, and attempt to limit.

Finally, however, one more Berlin Wall is beginning to show a crack - it may be only a hairline fracture but it is real and it will grow.


Copyright 2000, David W. Kirkpatrick

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