An overview and evaluation of state Blaine Amendments: origins, scope, and First Amendment concerns.

• Author: DeForrest, Mark Edward

"[I]t is one of the firmest convictions of our time that difference of creed should no longer be allowed to determine a difference of civic rights."

--Jacob Burckhart (1)

"Governments have not always been tolerant of religious activity, and hostility toward religion has taken many shapes and forms--economic, political, and sometimes harshly oppressive."

--Chief Justice Warren Burger (2)

1. INTRODUCTION II. WHAT IS THE BLAINE AMENDMENT? A. The National Blaine Amendment B. Blaine's Motivation C. The Common School Issue D. The Blaine Amendment in Congress E. The Adoption of Blaine Amendment Language in the States III. A SURVEY OF STATE BLAINE AMENDMENTS A. Less Restrictive Blaine Provision B. Moderate Blaine Provisions C. Most Restrictive Blaine Provisions 1. General Overview 2. Michigan's Unique Situation 3. Washington State's Blaine Jurisprudence D. Overall Impact of the Blaine Amendment IV. FIRST AMENDMENT OBJECTIONS TO BLAINE AMENDMENT LANGUAGE A. The First Amendment as a Limitation on State Blaine Provisions B. First Amendment Problems with State Blaine Language 1. Overview 2. Liberalism, Neutrality, and the Problem of Religious Profiling 3. Free Speech and Viewpoint Discrimination a. An Overview of Viewpoint Discrimination Doctrine b. Viewpoint Discrimination and Government Funding of Religious Groups c. Application of Viewpoint Discrimination Doctrine to State Blaine Provisions V. CONCLUSION I. INTRODUCTION

   The issue of the legality of vouchers and other forms of state aid to private religious schools has taken on new life in the states. This renewed interest in state aid to religious schools has been motivated by the groundbreaking Supreme Court decision in Zelman v. Simmons-Harris to uphold an Ohio program that provides payments in the form of vouchers to parents who have children in failing public schools. (3) The state program allows parents to use those vouchers to pay for tuition for their children in private schools of either a secular or religious character. (4) Prior to the Court's ruling in Zelman, the legality of public vouchers for private education was hotly debated on the national stage. As Kent Greenawalt has noted, vouchers were a major issue in the 2000 election--an issue that was, in his words, "connected closely" to religion (5). While various public policy arguments were raised both for and against vouchers for private education, a primary issue of legal concern was whether such vouchers would pass federal constitutional muster. The Court's decision provides an affirmative answer to that question (6). However, while the Court's ruling in Zelman was noted prominently in the media, (7) the Court did not decisively resolve the issue of the legality of state governments' providing vouchers or other forms of aid to private school students or parents for the private education of their children (8). The Supreme Court's ruling was permissive in character, rather than imperative; it permits states, if they choose, to provide such vouchers, but they are not required to do so. (9) The Court's decision also does not mandate that parents have the option to use the tuition vouchers to send their children to private religious schools; it simply states that programs allowing parents to do so do not run afoul of the Establishment Clause of the First Amendment. (10) The Court's ruling, therefore, casts the issue of vouchers and other forms of aid to private religious schools back to the states, leaving it to state governments, in accord with the political will and the constitutions of those states, to decide whether vouchers or other forms of aid should be given to parents to pay tuition at private schools, whether secular or religious. (11)

   The importance of state law in evaluating the overall legality of vouchers or other forms of aid for private religious schools should not be underestimated. States provide most of the funding for education in our society, and according to general estimates, eighty-five percent of all private schools are affiliated with religious groups or denominations. (12) If such schools are excluded as options for parents under enacted state voucher programs, the school voucher movement will be effectively dead as a serious option in reforming education. (13) And the strongest legal argument at the state level against providing vouchers to parents to send their children to private religiously-based schools is a collection of state constitutional provisions known collectively and generically as "Blaine Amendments." Around thirty states have such Blaine provisions as part of their state law. (14) The language of these Blaine provisions typically prohibits state governments from providing financial support to "religious worship, exercise or instruction," (15) and mandates that schools receiving public support be "forever free from sectarian control or influence." (16) Such provisions in state law make it likely that the courts in states with Blaine Amendments in their constitutions may be tempted to strike down aid programs that provide funds, either directly or indirectly, to religiously affiliated private schools. (17)

   This Article provides an examination of state Blaine Amendment language, paying particular attention to the motivation that birthed the original Blaine Amendment, the varying scope of the state versions of that amendment, and First Amendment concerns raised by a zealous application of those amendments on the state level. Section II explores the well-established history of state Blaine Amendments from their origin as a failed amendment to the federal Constitution to their enactment on the state level, using Washington State as an example of the implementation of Blaine provisions within a state constitution. This section will show that the Blaine amendments were motivated by a desire to preserve an unofficial Protestant establishment in public education, and to ensure that minority religions--Catholicism, in particular--would be unable to officially challenge that unofficial establishment. Section III provides a survey of Blaine Amendments on the state level, providing an evaluation of Blaine language in the various state constitutions, as well as an overview of significant state case law interpreting those Blaine provisions. This section will demonstrate that there is a great deal of diversity in the wording of state Blaine Amendments, along with a varying degree of severity regarding the restrictions those amendments place on both direct and indirect aid to private religious education. Section IV evaluates the constitutionality of state Blaine Amendments in light of the First Amendment's guarantees of religious liberty and free speech. (18) This section shows that the Blaine Amendments that exist in various state constitutions are not themselves free from constitutional tarot. (19) The thesis of section IV is that many, if not most, state Blaine Amendments violate the First Amendment's provisions regarding religious liberty and free speech because they unlawfully discriminate against religious believers. (20)

2. WHAT IS THE BLAINE AMENDMENT?

   A The National Blaine Amendment

   Before exploring the constitutional problems with many Blaine Amendment provisions in state law, it is necessary to provide some background to the Blaine Amendment and its origins. The original Blaine Amendment was a proposed amendment to the federal Constitution. (21) The amendment took its name from its sponsor and originator, Representative James Blaine of Maine, who introduced the amendment on December 14, 1875. (22) The text of his proposed amendment reads as follows:

   No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations. (23) The overarching purpose to the Blaine Amendment, as its plain text demonstrates, was to control the development of government involvement in religious issues at the state level in two critical ways. First, it would have applied the religion clauses of the First Amendment directly to the states. (24) Prior to the development of the incorporation doctrine by the Supreme Court in the twentieth century the provisions of the Bill of Rights (the first ten amendments to the United States Constitution) were not applied to the states by the courts. (25) In Blaine's day, the states were yet to be restrained by the First Amendment; Blaine saw this as a deficiency (26) and sought to remedy this situation by amending the Constitution to directly apply the religion clauses of the First Amendment to the states. (27) The second effect of Blaine's amendment would have been to prohibit state governments from supporting private religious schools with funds from the public treasury. (28)

   2. Blaine's Motivation

      Blaine's motivation for proposing his amendment was centered on his own political ambitions. (29) Blaine, a Republican and former Speaker of the federal House of Representatives, was actively seeking the GOP's 1876 presidential nomination. (30) He proposed his amendment to the Constitution after then-President Grant delivered an 1875 speech touching on the issue of public education. (31) Grant's Republican administration was mired in scandal and it was difficult for the GOP to get any political traction in the face of growing opposition to government corruption. (32) The rival Democratic Party had made strong gains against the Republicans in the mid-term elections of 1874, (33) gains that were significant enough to recapture control of the House of Representatives and thereby deprive Blaine of his speaker's chair. (34) Grant, in an effort to cast himself as a reformist politician, delivered his address...