Just days after the U.S. Supreme Court upheld voucher aid to religious schools on June 27, New York State Assemblyman Dov Hikind began plotting his next move.
"We have to take up the cause," the Brooklyn Democrat told the New York Daily News. Hikind added that many of his constituents are Orthodox Jews who would like vouchers to pay for Jewish day schools.
But even Hikind acknowledges a potential serious obstacle: A section of the New York Constitution explicitly bars public funding of religious schools. Known as a "Blaine amendment," the provision has been part of the state constitution since 1894. Voucher advocates know that the New York language and provisions like it in three dozen other state constitutions represent a significant roadblock to their crusade--and they are preparing to get rid of them.
The fight over Blaine amendments will likely be the next big battleground over school funding. In Washington, D.C., voucher booster Kevin Hasson of the Becket Fund for Religious Liberty, a conservative Catholic-oriented legal group, has already announced his intention to go after Blaine amendments in the states.
"Blaine amendments," Hasson told The New York Times June 30, "are a dirty little secret from the anti-immigrant past. They not only get in the way of vouchers and prohibit other sorts of useful aid, but they enshrine bigotry in many state constitutions."
At the same time Hasson was fulminating against Blaine amendments, the Institute for Justice, another pro-voucher organization, was launching its own campaign. Normally skeptical of federal control, Institute lawyers are suddenly arguing that the First Amendment means that Blaine amendments must be declared null and void.
What are Blaine amendments, and why do they have the pro-voucher crowd so worked up? The short answer is that Blaine amendments are provisions in state constitutions that explicitly bar tax assistance to religious schools. Three fourths of the states have them, and if they are interpreted broadly, the language could quickly shut down voucher programs in much of the country.
The Supreme Court's recent decision in Zelman v. Simmons-Harris didn't mandate that any state start a voucher program. It said that states may create them under certain conditions. The ruling moved the issue from the federal courtrooms to the state legislatures and courts.
Both voucher foes and proponents expect to see a flood of bills in state capitols later this year and next, as summer recesses wind down and law-making sessions resume. The unanswered question is what will happen in states with Blaine amendments. If voucher bills pass, can they be struck down for violating state constitutional provisions?
Groups like the Becket Fund and the Institute for Justice certainly seem to think so--and they've set their sights on eliminating the Blaine amendments by any means possible. They will have plenty of help from Focus on the Family and allied Religious Right organizations.
To achieve their goals, voucher proponents must first demonize the Blaine amendments. Their favorite tactic is to assert that the provisions spring from 19th-century anti-Catholicism. They assert that the amendments' namesake, James G. Blaine, speaker of the House of Representatives after the Civil War and later a U.S. senator, was an anti-Catholic bigot who wanted to ensure that no Catholic institution ever got tax funds.
The truth is more complex. Blaine, who represented the state of Maine as a House member from 1863-1876, as a senator from 1876-1881 and ran for president three times, probably was motivated by a desire to advance his political career by tapping into anti-Catholic animus--but that does not mean that every state constitutional provision barring tax aid to religious schools is Blaine's handiwork.
In fact, some "Blaine...