Dusting off the Blaine Amendment: two challenges to Missouri's anti-establishment tradition.

• Author: Schwartz, Aaron E.
• Position: COMMENT

1. INTRODUCTION

   Using broad strokes to paint the rights and protections granted therein, the free exercise and the establishment clauses stand as dual monuments to the great-American experiment in separating the State and the sacred. (1) Their sparse language is contrasted by comparatively specific manifestations of similar interests in the state constitutions. Echoing their federal counterpart, the state constitutions commonly command that the state may not fund religiously affiliated educational institutions. (2) No fewer than thirty-eight states, including Missouri, adopted a so-called "Blaine Amendment," which prevent states from supporting sectarian or religious schools. (3) Employing more detail than its federal counterpart, Missouri's constitution made explicit the separation of church and state in funding religious education. (4) Missouri's Blaine Amendment reads:

   Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever. (5) From their inception in the state constitutions, the Blaine amendments remained in semi-deep-freeze. The intricate question of the proper boundary between church and state in the public financing of religious education was left to the federal religion clauses. However, in a recent decision, the United States Supreme Court shifted the question of the permissibility of state funding for religious schools to the state constitutions. (6) For many types of programs, the Blaine amendments, no longer overshadowed by their oblique federal counterparts, stand as the last significant barrier to the use of public resources for sectarian schools.

   In the years since the federal barriers have subsided, a significant coalition of legislators and activists have attempted to directly and indirectly fund sectarian educational institutions. (7) Their efforts raise two questions. First, is it wise to fund religious schools? This is a question properly reserved for policy makers and remains unanswered by this comment. Second, assuming the political will is insufficient to repeal Missouri's Blaine Amendment, is it constitutionally permissible to support religious schools through either a voucher program by declaring the Blaine Amendment violative of the federal free exercise clause or by avoiding the Blaine Amendment through the use of an income tax benefit?

   Neither of these two challenges to Missouri's Blaine Amendment, a tax scheme or a free exercise challenge is likely to succeed. A federal free exercise challenge to a voucher program based on the denial of a generally available benefit due to religious use is bound to fail. (8) Additionally, a free exercise challenge based on the anti-Catholic motives of the drafters of the Missouri Blaine Amendment is unsupported and likely historically inaccurate. Little evidence links the 1875 Missouri Blaine Amendment with the anti-Catholic bigotry often associated with the failed National Blaine Amendment and Blaine Amendments in other states. (9) Even less evidence of religious bigotry is available for the Blaine Amendment readopted in Missouri's 1945 constitution. Furthermore, any number of tax schemes supporting religious schools are likely impermissible in Missouri because a tax credit is equivalent to a grant of public funds, tax benefits help "sustain or support" religious schools, and even indirect aid to parochial schools is impermissible. (10)

2. THE CONSTITUTIONAL LANDSCAPE

   1. The Establishment Clause: Opening the Floodgates

      Prior to the United States Supreme Court's landmark decision of Zelman v. Simmons-Harris, (11) the Establishment Clause served as a stout federal bulwark against the use of state funds for religious education. (12) At one point in its evolving jurisprudence, the Supreme Court even went so far as to announce "no tax in any amount ... can be levied to support any religious activities or institutions." (13) After Zelman, the Establishment Clause lost much of its vigor, at least in the context of school voucher programs. (14)

      In Zelman, the Ohio legislature established a school voucher program to supplement its failing Cleveland School District. (15) Tuition aid was distributed to economically disadvantaged students so they could attend better functioning public schools and secular and religious private schools. (16) The overwhelming majority of students who took advantage of the tuition voucher used it to attend religious schools. (17) After a group of Ohio taxpayers complained the program violated the federal Establishment Clause, the Sixth Circuit held the program impermissibly had the "primary effect" of advancing religion and therefore violated the Establishment Clause. (18)

      In overturning the Sixth Circuit, Chief Justice Rehnquist wrote that the Ohio voucher program involved "a program of true choice," therefore, did not violate the Establishment Clause. (19) The Court noted that the Establishment Clause prohibits states from enacting several types of funding plans for parochial schools. First, states are prohibited from enacting plans with the "purpose" of advancing or inhibiting religion. (20) Second, there still must be a "genuine and independent" choice for individuals using funds between religious and secular institutions. (21) In Zelman, students could take the same tuition assistance to a secular public or private school. (22) Third, states are prohibited from enacting programs which create excessive entanglement between church and state. (23)

      Following Zelman, a variety of funding models do not violate the United States Constitution's Establishment clause. As Zelman blessed the use of school voucher programs, the federal Establishment Clause no longer serves as an ironclad barrier between church and state in the arena of parochial school funding. "Zelman [was] the first case in which a majority of the Court has sanctioned direct public funding of schools whose modus vivendi is to inculcate religious values, beliefs and teachings in their students." (24) For all but the rare case of inartfully drawn or overreaching voucher programs, only state constitutions stand in the way of the use of public funds for private religious schools.

   2. The Post-Zelman Establishment Clause: Down, But Not Out

      While the fight over public funding of sectarian schools is likely to be waged on state constitutional grounds, several key aspects of the federal Establishment Clause still limit funding for religious schools.

      1. True Choice for Statewide Sectarian School Funding?

      Zelman dealt exclusively with a voucher program enacted in a small geographic location. (25) However, many of the programs proposed in Missouri, voucher or tax credit, concern statewide initiatives. A specific finding of fact in Zelman noted students had a variety of choices in their education. (26) Under Zelman real choice between religious and secular is required. (27) In Zelman, real choice was available, because each recipient of a school voucher could choose between a wide variety of public and private sectarian and nonsectarian schools. (28)

      Like most states, Missouri is comprised largely of rural areas, and it is therefore highly unlikely that a true choice can be provided to all residents of the State. Economies of scale will not provide individuals in isolated areas with a variety of schools. In many areas, it is probable only one well functioning school will be available. Any statewide program would certainly create instances where the superior education alternative would be a sectarian school. The State would thus be tacitly encouraging students to attend religious schools. This is problematic under Zelman.

      Furthermore, Zelman did not tell us if the Establishment Clause mandates real choice as between religions. The Establishment Clause will not permit the favoring of one religion over another. (29) Imagine a rural area with a single family of a minority religion. The student has a choice of attending a failing public school or a largely successful religious school of the majority religion. Does the minority family have a true choice, as Zelman mandates? The minority student will either be sentenced to an inadequate public school or a private religious school of a religion with which he disagrees. This blatantly favors the majority religion and disfavors the minority. Accordingly, as voucher programs and tax schemes expand beyond select areas with high population densities questions as to the propriety of funding of religious schools under the Establishment Clause will continue to rise.

      2. Excessive Entanglement: How Much Is Too Much?

      Few concepts are more deeply embedded in the fabric of our national life and history, than that the government exercise at the very least a kind of "benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference." (30) Unlike the deduction for a donation to a church, the tax benefit for a donation or tuition reimbursement to a church-affiliated school will invariably lead to greater restrictions and regulations on private schools: who they should hire and on what basis, who they should admit, safety and accessibility regulations, and regulations on curriculum and accreditation. Doing such increases conflict between church and state. Most tax benefit and voucher programs have the potential to increase restrictions on those...