National Catholic Register

Commentary

Blaine Strikes Again

BY Gerald J. Russello

January 25-31, 2009 Issue | Posted 1/16/09 at 12:08 PM

 

A case now pending before the Supreme Court of Arizona shows that it will take a long time to rid state law of a pervasive symbol of anti-Catholic bigotry: the so-called Blaine amendments.

A “Blaine amendment” is a state law that bars public aid to “sectarian” schools. Some of these laws are embedded in a state’s constitution itself. The name comes from the Maine Congressman James G. Blaine who tried to add such an amendment to the federal Constitution in the late 19th century. That attempt failed, but many states went ahead with their own laws.

The historical record is unequivocal that “sectarian” in these laws really means “Catholic.”

The Blaine amendments were passed during a wave of anti-Catholic sentiment that swept through the country in the last years of the 19th century and which continues in some circles today. The Supreme Court in 2000 said that the history of the Blaine amendments represents a “shameful pedigree that we do not hesitate to disavow.”

Unfortunately, many of the 35 states that still maintain such amendments have not followed the Supreme Court’s lead.

In a case called Cain v. Horne, the Arizona court is faced with whether its version of the Blaine amendment should withstand scrutiny.

The amendment, called the Aid Clause, provides that “No tax shall be laid or appropriation of money made in aid of any church, or private or sectarian school, or any public service corporation.”

In 2006, the Arizona Legislature enacted a state scholarship program under which public school students with a disability who transfer to a private primary or secondary school will be paid a scholarship by the state up to the amount of basic state aid the student would have received if the student had remained in the public school.

Cain challenged this program, claiming that it violated the Aid Clause because some of the students who could receive this aid would use it in “sectarian” schools.

The lower court rejected these claims and upheld the scholarship program, but the Arizona Court of Appeals reversed and found that the scholarship program did violate the Aid Clause. The appellate court concluded that the scholarship program provided impermissible support for private or sectarian schools. Now the case is before the Arizona Supreme Court.

A brief filed in support of the program by the Becket Fund for Religious Liberty, a nonprofit organization devoted to protecting religious freedom, argues that the court should look behind the words of the statute to recognize that the Aid Clause, like so many other similar statutes, has a history tainted with anti-Catholic and, in some cases, racist baggage and so should be rejected.

The appellate court did not seriously consider the background and purpose of the Aid Clause. The court reasoned that it had to uphold the Aid Clause even if it “may have been tainted by questionable motives,” if the language of the law itself seemed neutral and not discriminatory.

This argument makes no sense, as it is an invitation to write laws that seem “neutral” but are designed to target particular groups. The Supreme Court, in a case called Hunter v. Underwood did just that. Hunter declared unconstitutional a seemingly neutral law that had the purpose of disenfranchising African-American voters. The same situation presents itself in Arizona.

So, in other words, if there is evidence for a discriminatory purpose against religion, a court should be allowed to consider it in assessing the validity of a statute. Moreover, a law may be discriminatory in effect, even if the law’s drafters did not intend that effect.

As the Becket Fund brief notes, most of the students attending private religious schools attend Catholic schools, and so the denial of funds under the program would disproportionately affect Catholic schoolchildren. Given this history, one can only hope that the Arizona Supreme Court will prevent the discriminatory Aid Clause from prohibiting assistance to disabled children who wish to go to a religious school.

The continued existence of Blaine amendments, given their history in anti-Catholic bias, is troubling. But more troubling than this case, or even the unfortunate history of anti-Catholicism that fostered the Blaine amendments in the first place, is how such laws distort our understanding of religious liberty.

Such laws imply that there is no place for mutual support between public aid and private religious schools and that the relationship between religious faith and secular government must be adversarial rather than cooperative. Therefore, they help to disrupt the delicate balance between a religiously neutral public space with a vibrant and diverse religious life.

In other words, the Blaine amendments are a problem not only for Catholics but for all who care about religious liberty.

Gerald J. Russello is a

fellow of the Chesterton Institute

at Seton Hall University.