THE FUTURE OF STATE BLAINE AMENDMENTS IN LIGHT OF TRINITY LUTHERAN: STRENGTHENING THE NONDISCRIMINATION ARGUMENT.

• Author: Borders, Margo A.

INTRODUCTION

The conversation surrounding religious freedom has reached a point of particularly heightened tension in this country. Issues of religious freedom continueto surround controversies such as healthcare coverage, discrimination basedon sexual identity, and general government involvement in religious affairs. Of particular importance in the recent past has been the issue of government funding for religious entities. The Court has grappled with this questionin different contexts for decades, asking: In what cases might government funding come too close to impermissibly establishing religion, or in what cases might the absence of the funding discriminate against religious practice?

Somepast conversation on the topic, particularly for school choice advocates, has centered on the controversial state constitutional amendments that often block all government funding for religious organizations. (1) Referred to as the "State Blaines," or "Baby Blaines," these amendments were inspired by the federal Blaine Amendment, proposed and failed in 1875, that would have restrictedstate governments from allocating any funding to religious entities. (2) Opponents of the State Blaine Amendments ("State Blaines") have questioned the constitutionality of applying the no-funding provisions in ways that are discriminatory to religious organizations. The Court's recent holding in Trinity Lutheran Church of Columbia, Inc. v. Comer (3) presents an example of a challenged state policy based on a strict state no-funding provision, and the Court's upholding of a church's right to participate in a neutral government funding program while continuing to freely practice its religion. (4)

Inparticular, the Court's strong affirmation of nondiscrimination principles ofthe First Amendment in Trinity Lutheran could signal the Court's willingness to hear more challenges to State Blaines and to be receptive to the idea that these strict no-funding provisions could facially contradict the First Amendment's mandate to protect religious practice. (5) Therefore, this Note will examine the interaction between, and possible consequences stemming from, the Trinity Lutheran opinion and the State Blaines. In particular, this Notewill examine whether this new jurisprudence regarding the constitutionality ofallowing or prohibiting public state funding for religious organizations could provide new grounds for school choice advocates to attack the constitutionality of State Blaines.

In Part I, this Note will examine a brief history of the proposed federal Blaine Amendment, and the subsequent adoption of many State Blaines across the nation. Next, in Part II, the Note will discuss why the State Blaines are frequently debated, specifically in the context of the issue of school choice. The Note will then examine two of the main arguments against the constitutionality of State Blaines--the animus arguments and the First Amendment arguments--and will examine the strengths and weaknesses of each argument. In Part III, the Note will discuss the culmination of recent caselaw in the Trinity Lutheran opinion. Finally, in Part IV, this Note will contemplate the effect that this recent court opinion could have on attacking the constitutionality of State Blaines, particularly for advocates of school choice. This Note will ultimately argue that while the majority opinion in Trinity Lutheran does not explicitly mention State Blaines, the Free Exercise Clausejurisprudence affirmed by the opinion could strengthen the likelihood of future successful challenges to the State Blaines on constitutional grounds using a nondiscrimination argument, and will make success more likely with this argument than with an animus argument.

1. A BRIEF HISTORY OF "BLAINES"

   In the mid to late nineteenth century, during the rise of the so-called "common schools," (6) the issue of religion in schools came to the forefront of American politics. In Massachusetts, Horace Mann, the nation's first State Secretaryof Education and the "father of American public education," (7) advocated for a public education system that was unaffiliated with any particular religion.(8) However, this does not mean that religion was absent from American daily life or education. (9) Indeed, after the creation of American public schools, teachings of Protestantism were prevalent in the education system, (10) as were fears about the rise of Catholic influence. As the Catholic population was growing, (11) particularly in cities like New York, Chicago, Philadelphia, Boston, Cincinnati, Baltimore, San Francisco, and St. Paul, (12) Protestants began to resist the "Catholic menace," (13) specifically through campaigns to deny public funding for Catholic or any "sectarian" institutions. (14) Political tensionsbetween Protestants and Catholics gave rise to the proposal of a constitutional amendment in 1875 that has since had lasting impacts on the modern discussion of school funding and religious freedom in the United States.

   1. The Federal Blaine Amendment

      The proposed amendment to the Constitution was a response to the schoolfunding controversy between Protestants and Catholics. (15) In September of 1875, President Ulysses S. Grant advocated a constitutional amendment to keep public funding from private schools in order to gain support from the Protestants and to definitively end the debate about religion in schools. (16) The speech garnered wide support across the Republican Party, (17) prompting Representative James Blaine of Maine, who was seeking the Republican presidential nomination in the next election, to sponsor Grant's amendment in the House of Representatives. (18) On December 14, 1875, (19) Blaine submitted a proposal that read:

      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. (20) The amendment, which would have been the Sixteenth Amendment to the U.S. Constitution, would have applied the Establishment Clause of the FirstAmendment (21) to the states, and more importantly, would have prohibited stategovernments from allocating public funding to religious organizations. (22) Many scholars have written about the motivations behind the proposal of the federal Blaine Amendment, and have concluded that, although Blaine was motivated by his own political ambitions in proposing theamendment, its near success in Congress can be attributed to longstanding anti-Catholic bias. (23) The anti-Catholic animus that guided the amendment will further the discussion about potential challenges to the State Blaine Amendments in Part II.

      Although the amendment gained much support in Congress and passed the House, it ultimately failed in the Senate by only four votes. (24) The life of the proposed amendment was not finished, however, as its effects are still being felt on the state level today. (25)

   2. State Constitutions and "Baby Blaines"

      The Blaine Amendment failed to pass at the federal level, but it created a strong movement within the Republican Party (26) that would greatly affect the conversation about church and state separation, specifically the "national debate over aid to religious schools." (27) The momentum of the separationist movement was felt in the states, where state constitutional amendments restricting religious school funding were being passed rapidly. (28) While twelve states adopted similar provisions in the 1870s, (29) Congress also began requiringterritories seeking admission to the Union to adopt these separationist provisions in their original constitutions. (30) By the 1890s, around thirty states would incorporate these types of constitutional amendments, (31) and today, thirty-seven states have adopted some version of the Blaine Amendment into their constitutions, (32) which are also referred to as "Baby Blaines." (33)

      State Blaines are quite diverse and vary widely by state, (34) so it is difficult to generalize about their substance. (35) Many of the amendments prohibit statefunding of religious schools altogether, some only prohibit nondiscriminatory funding of religious schools, and some have not been interpreted at all. (36) Frank Kemerer has categorized states into restrictive, permissive, and uncertainin terms of restricting aid to sectarian schools. (37) Within the restrictive category, several states prohibit both direct and indirect aid to sectarian schools, while some have more general restrictions on aid. (38) Mark DeForrest categorizes states with Blaine provisions in a different way--he puts the states on a continuum, on which one side are State Blaines that narrowly restrict state funding to private education, (39) and on the other side are states with broadly interpreted provisions that more widely allow funding to private, or sectarianeducation. (40) In the middle are states with some moderate provisions that"permit some form of government aid to religious schools but prohibit overt funding." (41)

      Some State Blaines target just education, while other, more extensive State Blaines prohibit any governmental aid that would support any sectarian institution. (42) For example, the Missouri Constitution has both a specific provision prohibiting government funding 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," (43) and a more general prohibition on government funding for any religious institution. (44) While the differences between the State Blainesare vast, they all share a common feature--"[t]he plain object of disabling religion...." (45) Most...