Blaine On Trial

BY Gerald J. Russello

April 6-12, 2008 Issue | Posted 4/1/08 at 10:29 AM

Ever hear of the Blaine amendment? It’s sort of obscure, but it remains one of the last remnants of bigotry in the statute books. Some court cases are finally beginning to tackle this shameful legacy.

First, a little history: James G. Blaine (1830-1893) was a Republican congressman from Maine. While serving as Speaker of the House of Representatives, he tried to enact an amendment to the U.S. Constitution prohibiting the use of state funds for “sectarian” schools.

Luckily, this attempt failed, though only narrowly; it passed the House and needed only four more votes in the Senate. The amendment was explicitly tried to anti-Catholic prejudice; the “sectarian” schools that would suffer were clearly understood to be parochial schools, which were exploding in numbers during this time.

Blaine, in the midst of generating support for a presidential run — he ran for president three times, coming close on at least one occasion to winning — played on anti-Catholic sentiment to attract Protestant votes.

However, Blaine’s example inspired numerous state legislatures to do what the Congress did not: put the Blaine amendment into law.

According to the Becket Fund for Religious Liberty, a civil rights organization devoted to protecting religious liberty, about 37 states — more than half the nation — have enacted such laws. Most of these laws are still on the books, despite their clear origin in bigotry.

Unlike Jim Crow laws, which were removed from the books in the face of the civil rights movement’s struggles for racial equality, the Blaine amendments have largely escaped scrutiny until recently.

They were able to hide behind a misunderstanding of religious freedom that confused supporting equally religious and non-religious institutions, with preferring one religion over another.

While the latter is exactly what the Blaine amendment attempted to do, most Americans, generally tolerant of other religions, thought the laws’ purpose was the former.

In New York, a courageous church has challenged that state’s version of Blaine. The New York state constitution provides that:

“Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning.”

In 1998, New York enacted a charter school law, which enables the state to provide funding for private or independent schools. These schools are usually in areas where the public schools are failing, and would give poorer families a chance at shaping their children’s education.

New Horizons Church Ministry is a Baptist congregation in New York City’s Harlem, and applied for a charter school license under the law.

But the law establishing the charter school program provides — following New York’s Blaine amendment — that support should be refused to any school “wholly or in part under the control of direction of any religions denomination, or in which any denominational tenet or doctrine would be taught.”

New Horizons was refused funding by the state because it proposed to establish a school in keeping with its religious principles.

Late last year, the pastor of New Horizons sued the state seeking a court to declare the prohibition of funding religious schools in the charter school law and New York’s Blaine amendment as a whole unconstitutional under the federal Constitution.

The case is now making its way through the court system, and is one of a number of challenges to state-level Blaine amendments.

Similar laws have been challenged as unconstitutional in Michigan, Massachusetts and Florida.

The New Horizons case should be of considerable interest to all those interested in religious education, but specifically in Catholic education. While the development of parochial schools developed independently of public schools, there is no reason why Blaine amendments should block Catholic schools from accepting funds pursuant to a state charter school program.

Indeed, in poorer neighborhoods, the need for such schools is greater than ever, and eliminating Blaine amendments would enable religious schools of all types to have a chance to succeed and help their communities. And Catholics should have a particular desire to see these legal remnants of anti-Catholic discrimination erased from the statute books.

In other words, it is time for the bigoted heritage of the Blaine amendments to pass into history.

Gerald J. Russello is a fellow

of the Chesterton Institute

at Seton Hall University.

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