With the beginning of the school year just a few weeks away, a judge has struck down Florida’s voucher program due to a provision in the Florida state constitution forbidding the use of tax money to send children to religious schools. While United States Supreme Court’s recent decision stating that such a use of tax dollars does not violate the U.S. Constitution’s Establishment Clause, it is clear that battle over parental choice in education is far from over and is now moving to the states. Thirty-eight states have constitutional provisions that are more restrictive of taxpayer choice in education funding than is the U.S. Constitution. These provisions, known as “Blaine Amendments,” explicitly prohibit or severely restrict a parent’s choice in utilizing education tax dollars for the school of their choice, especially if it is a religious school. These restrictions are based on an anti-religious bigotry over a century old, and it's high time that state constitutions reject a bigoted policy that prevents millions of American children from receiving the best education possible.–
On December 14, 1875, former Speaker of the House of Representatives James G. Blaine proposed an amendment to the U.S. Constitution restricting the use of tax money for use in religious schools. It provided:
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 raised or lands so devoted be divided among religious sects or denominations.
This amendment, of course, was not ratified and is not a part of the U.S. Constitution. Many states, however, riding the various waves of anti-Catholic fervor that often boiled to the surface in the political battles of that day, incorporated the ideas contained in Blaine’s proposal into various state constitutions. Blaine’s proposition had more to do with his political ambitions and his anti-Catholic bias than it did with any deeply held concern about preserving the integrity of the U.S. Constitution.
Blaine who served as Speaker of the House of Representatives and later, with some distinction, as President James Garfield’s Secretary of State was ambitious for the presidency. He tried for the Republican nomination for president in 1876, 1880, and finally attained it in 1884. Despite a strong race in 1884, he lost the presidential election to Grover Cleveland. Some historians of the era claim he lost the election because of his inability to shake the appellation of “Blaine, Blaine, the continental liar from the state of Maine” given to him as a result of accusations of influence peddling on behalf of the railroad interests. But there is more to the story.
Underlying much of Blaine’s rhetoric throughout the 1884 campaign was a distinctly anti-Catholic tone. In some cases, it was quite explicit. The most famous expression came from a Blaine operative by the name of Samuel Buchard of New York, who at a public rally referred to the Democrats as “the party of rum, Romanism, and rebellion.” The remark, made in Blaine’s presence, accurately summed up the tone of Blaine’s campaign and his failure to repudiate the remark led to the alienation of the large Irish Catholic vote in New York. As a result, Blaine lost New York and the presidency along with it.
Throughout his career Blaine, despite his deftness and competence in matters of foreign policy, exhibited an anti-Catholic bigotry in his political views, especially in matters pertaining to educational choice and funding. While there are many historical and political considerations as to why he viewed Catholics with the suspicion he did, the enduring legacy of his religious bigotry is the severe restrictions on a parent’s right to choose enshrined in many state constitutions throughout this country.
The Florida decision will certainly be open to appeal and educational choice groups are already preparing the necessary briefs to challenge the Florida ruling. Now that the U.S. Supreme Court has made its decision, the Florida decision is indicative that the battle will now be shifting to the states. While the Florida decision seems a step back for the educational choice movement, educational choice litigation looks promising in other states.
In the state of Washington, another state with a fairly restrictive Blaine Amendment, the Ninth U.S. Circuit Court of Appeals ruled that the Evergreen State’s policy of denying the use of state education scholarships to individuals studying to be pastors was unconstitutional. The courts ruling stipulates: “A state law may not offer a benefit to all … but exclude some on the basis of religion.” In this decision, Davey v. Locke , Joshua Davey who received the state scholarship based on academic merit and financial need will be allowed to utilize his hard-earned scholarship to study pastoral ministry at a theological faculty. Explicit in this decision is the recognition of the U.S. Supreme Court’s reasoning in Zelman v. Simmons-Harris, which held that the religious mission of education dollars lies with an individual’s choice, not the government.
While this decision in Washington State sets a favorable precedent in the ongoing struggle to role back the bigoted Blaine amendments, it is far from certain what the outcome in other states will be. Blaine Amendments in state constitutions are exactly that: amendments. Most state constitutions originally contained a fairer treatment of religion and a broader understanding of educational choice in their original forms – indicating a better understanding of the foundational role that religion plays in the public square. It is time that the intended and unintended effects of a bigoted policy put forth over a century ago are rolled back. Such a rollback would constitute a return to a healthier understanding of the role of religion in public life, as well as a fundamental recognition of a parent’s right to direct the education of their children. It is time that justice is done to those taxpayers currently discriminated against, because they refuse to check their faith at the schoolhouse door.