Amendments are provisions in dozens of state constitutions that prohibit
the use of state funds at "sectarian" schools. They're named
for James G. Blaine, who proposed such an
amendment to the U.S. Constitution while he was Speaker of the U.S.
House of Representatives in 1875. The amendment
passed overwhelmingly (180-7) in the House, but failed (by
4 votes) in the Senate. Although the amendment failed narrowly, state-level versions were wildly successful. And in several states, adoption of Blaine Amendments was made an explicit condition for entering the Union.
37 states have provisions placing some form of restriction on government
aid to "sectarian" schools and their equivalents that go far beyond any limits in the
the Supreme Court has cleared the last remaining federal obstacle to
school choice programs (Zelman held that well designed voucher
programs do not violate the Establishment Clause), supporters are finding
that their states' Blaine Amendments may prohibit such programs.
It was not widely appreciated until recently that Blaine Amendments were passed
as a direct result of the nativist, anti-Catholic bigotry that was a
recurring theme in American politics during the 19th and early 20th
centuries. Finally, in the Supreme Court's Mitchell
v. Helms decision in 2000, the four-Justice plurality explicitly
recognized that use of the term "pervasively sectarian" in law was a "doctrine born of bigotry [that] should be buried now." Justice
Breyer's dissent in Zelman
v. Simmons-Harris further acknowledges this tainted history. After Locke v. Davey in 2004, the court made clear that since Blaine Amendments "have been linked with anti-Catholicism" they are unique creatures that merit especially close examination, suggesting that they may be buried by the court soon.
Becket Fund for Religious Liberty is currently challenging the legality
of several Blaine Amendments as violations of the U.S. Constitution.
In a series of Supreme Court amicus briefsfirst in
Mitchell, then in
Zelman, and again in
LockeThe Becket Fund has worked to build awareness
among the Justices of the role of nativism in the history of hostility
toward funds for religious schools. We're also raising the issue before
state supreme courts, filing amicus briefs in
Gallwey v. Grimm before the Washington Supreme Court, and
in Bush v. Holmes before the Florida Supreme Court. And have also submitted an amicus brief in the 10th Circuit. News articles in The
New York Times, The
Legal Times, World
Magazine and other publications have recognized The Becket Fund's
role in this effort.
is offered as a resource to all who wish to explore the subject further.