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The so-called "Blaine Amendments," began with an attempted constitutional amendment proposed by Congressman James Blaine in 1875, the primary purpose of which was to prohibit aid to Catholic schools. He failed, but the idea was enshrined in many state constitutions. That bigotry is finally receiving court attention.

A major step came with Arizona's 1997 adoption of a plan whereby individuals receive up to a $500 tax credit for contributions to nonprofit School Tuition Organizations (STOs) and $200 for contributions for specific purposes in public schools. The Arizona Supreme Court, in January, 1999, not only ruled that such credits are constitutional under both state and federal constitutions, but both the majority and dissenting opinions referred to Blaine. The following is 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.' Its 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 ... 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."

Another encouraging sign is the U.S. Supreme Court's 6-3 Mitchell v. Helms decision, June 28, 2000, which upheld the provision of materials to students in religious schools. Justice Clarence Thomas, for the majority, officially recognizing the background for this alleged church-state problem in education, 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."

Here is a chronological list of twenty states that adopted constitutional Blaine amendments:

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 Blaine amendments but some did so under duress when Congress indicated it would not grant statehood until such a provision were included:

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.

A few caveats are in order.

First, Blaine amendments are not all created equal.

Second, the inclusions of some states on the list is debatable. For example, Pennsylvania is listed yet both the state House, in 1995, and Senate, in 1991, have ruled that vouchers are constitutional.

Third, the list is indicative, not definitive. Constitutions get amended from time to time. Michigan, listed for 1850, prior to Blaine's effort, adopted its present extreme restriction in 1970.

The modern controversy began in 1947 with an unprecedented decision by the U.S. Supreme Court, Everson v. Board of Education, Ewing Township, NJ, at a time when Bible reading, prayer, and even religious classes in public schools were still common. That Court linked 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..."

The prohibition is clearly on Congress and on establishing a religion -- which meant a restriction against public funding for a national church. In fact, official churches had existed, and some still existed in 1787, in nine of the new 13 states. Even linking the two amendments to extend the meaning of "Congress" to include any governmental lawmaking body ignores the phrase "make no law," and has grown to include virtually any public display of religious sentiment, by law or not, such as fans at an athletic event praying before the game.

The 14th Amendment was adopted in 1868, before Pres. Grant, Rep. Blaine, and others tried to abolish aid to religious schools which had been common before then. Obviously they saw no link between the 1st and the new 14th amendment. So the 1947 Court created an edict out of thin air.

Thomas Jefferson said "The great object of my fear is the Federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them."

Perhaps what has been done can, finally, be undone. The U.S. Court of Appeals for Ninth Circuit has ruled that Washington State's Blaine Amendment is discrimination against religion that violates the federal Constitution's Free Exercise Clause. The U.S. Supreme Court has accepted the case for review. If the lower court's decision is upheld Blaine Amendments in all state constitutions will be null and void.

As they should be.

 Part 1  |  Part 2

Copyright 2003 David W. Kirkpatrick
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Douglassville, Pennsylvania 19518-9240
Phone: (610) 689-0633