The Blaine Amendments and the Old Bigotry Still Sitting in State Constitutions

Every so often a law survives its own embarrassing origins by changing its costume. It was written for one purpose, the people who wrote it would blush to hear the purpose read aloud, and so it gets defended for a new reason that nobody at the time had in mind. The old clause is still there. It just has a better publicist.

That is the story of the so-called Blaine amendments, a set of provisions in state constitutions that bar public money from going to religious schools. Many Americans have never heard the name. Yet for well over a century those clauses sat quietly inside state constitutions, and when a family tried to use a scholarship at a church-run school, a state attorney general would reach into the drawer and pull one out. The story of where they came from is not flattering to the people who wrote them, and it is worth telling in order, because the facts do most of the arguing.

Before 1875: the schoolhouse and the Bible

Start with the public schools of the mid-nineteenth century. The common school movement, led by reformers such as Horace Mann in Massachusetts, set out to give every child a basic education in a shared public institution. Admirable goal. But the shared institution was in practice Protestant. Teachers often opened the day with readings from the King James Bible and with Protestant hymns and prayers. For most children that was a normal part of school. For Catholic families, a rising share of the immigrant population in the northeastern cities, it was something else: religious instruction in a version of Scripture and a style of worship that was not their own.

The conflict was real and sometimes violent. In 1844 Philadelphia was torn by what became known as the Bible Riots, in which a dispute that included the question of which Bible would be read in the schools helped set off deadly clashes between nativist mobs and Catholic neighborhoods. In New York in the early 1840s, Catholic leaders, including Bishop John Hughes, asked for a share of public school funds for Catholic schools, in part because they found the public schools' religious content objectionable. They did not get it. Many Catholic communities concluded that if the public schools would not accommodate them, they would build their own, and they did, at considerable sacrifice.

Hold that in your mind. By the 1870s Catholic schools were growing, and a significant part of the country's political class found that growth alarming.

1875: Grant gives a speech, Blaine offers an amendment

In September 1875, President Ulysses S. Grant addressed a gathering of Civil War veterans in Des Moines, Iowa, and spoke in favor of public schools free from sectarian influence. The speech made school funding a national political topic. In December of that year, James G. Blaine of Maine, who was then a leading Republican in the House of Representatives and who had his eye on the presidency, introduced a proposed amendment to the U.S. Constitution.

In substance, Blaine's amendment would have extended the religion clauses of the First Amendment to the states and forbidden the use of public school money for schools under the control of a religious sect. It passed the House by a large margin. It fell short in the Senate of the two-thirds vote that a constitutional amendment requires, and it died. Blaine himself did not win the 1876 Republican nomination, which went to Rutherford B. Hayes. He later became the party's nominee in 1884 and lost, in an election that included a notorious remark by a supporter who denounced the Democrats with a phrase about "Rum, Romanism and Rebellion," a gaffe widely blamed for costing Blaine votes among Catholic voters.

So the federal amendment failed. If the story ended there, it would be a footnote. It did not end there.

The copy machine: states and territories

The idea moved to the state capitals. In the decades after 1875, state after state adopted constitutional provisions with the same flavor as the failed federal amendment. They barred the use of public funds for the support of sectarian schools, or for any religious institution, in language that varied from state to state. Congress, for its part, helped. When it admitted new states to the Union in 1889, the enabling act for North Dakota, South Dakota, Montana and Washington required that those states establish public school systems free from sectarian control. Later enabling acts for other states carried similar requirements.

By the end of the nineteenth century, a large number of states had a clause of this kind. The language differs, and so do the details, but the family resemblance is plain. If you want to find out whether your state has one, read your state constitution, which is posted on your legislature's website, and look in the education article for words like "sectarian," "religious" or "denominational."

I do not need you to take my word for the motive. The Supreme Court has said it. In 2000, in Mitchell v. Helms, a plurality of the justices, in an opinion by Justice Clarence Thomas, said that the doctrine of hostility to aid for "pervasively sectarian" schools was born of bigotry, rooted in hostility to Catholics in particular. And in 2020, in a concurring opinion in Espinoza v. Montana Department of Revenue, Justice Samuel Alito set out the history in detail, tracing the no-aid provisions to the nativist politics of the 1870s.

I want to be careful and fair about this. It is one thing to say that the movement behind the clauses was fueled by anti-Catholic feeling. It is another to say that every state that adopted or kept such a clause did so for that reason, or that everyone who defends them today is a bigot. They are not. Which brings me to the best defense of the clauses.

The steelman: the clause as taxpayer protection

Here is the strongest version of the case for keeping the no-aid clauses, in terms its defenders would accept.

1. The principle behind them is older than Blaine. In the 1780s Thomas Jefferson and James Madison fought in Virginia against a proposal to tax citizens to support teachers of the Christian religion. The principle that no citizen should be forced to pay for the propagation of a faith he does not hold is an American commitment, and it has nothing to do with Catholics or anyone else.
2. A state is entitled to spend its education money on the public system and to decline to fund private institutions of any kind. A clause protecting that choice is neutral on its face.
3. Some states re-adopted or kept their clauses in later constitutional conventions for reasons other than the original ones. Montana's lawyers argued that the delegates to the state's 1972 constitutional convention considered the provision and chose to keep it, for reasons that had nothing to do with the 1870s.

That is a respectable argument. I think the first point is correct as a matter of principle, and I wrote about its roots in Baptists, Madison and the Virginia fight that put religious liberty first.

The answer

Now the reply, in order.

One. The Jefferson-and-Madison principle is about compelled support for religious teaching. A scholarship that a family chooses to use at a school of its choice is not a tax levied for the support of a church. The family chose, and in a true choice program the state does not pick the school.

Two. The family is also a taxpayer. The family that wants to use a scholarship at a Lutheran or a Catholic or a Jewish school has paid the same taxes as everyone else, and a rule that says the money is for everyone's children except the children whose parents chose a religious school is hard to describe as neutral.

Three. The decisive point is what the clauses were actually used for. In the cases we are about to discuss, the state was not refusing to fund private education at all. It was funding secular private schools and refusing to fund religious ones. A rule that allows the aid for a nonreligious school and denies it for the same school with a chapel is not neutral. It is targeted.

Four. The motive matters at the very least as a warning. When a rule was born in the hostility of one era, and then survives with a new justification, a court is entitled to look at what the rule does today. And what it did in practice was punish families for their religion.

How the clauses were used

For a long stretch the clauses worked as a veto on school choice. Two examples, both matters of public record:

• In 2009 the Arizona Supreme Court, in Cain v. Horne, struck down two scholarship programs, one for children with disabilities and one for foster children, under Arizona's constitutional provisions about aid to religious or private schools.
• In 2015 the Colorado Supreme Court, in a case involving a program in Douglas County, held that a local voucher program violated a state constitutional ban on aiding religious schools. The U.S. Supreme Court later sent the case back for reconsideration in light of its 2017 ruling in Trinity Lutheran, and the program was not revived.

Notice who was affected. The Arizona programs were for children with disabilities and foster children, and Douglas County's was a local effort to widen options for its own families. That is who got hurt when the clauses were enforced.

What the Supreme Court changed

The Court did not abolish the clauses. It did something more precise. In Trinity Lutheran Church v. Comer in 2017, the Court held that a state could not exclude a church from a generally available public benefit just because of its religious identity. In Espinoza in 2020, it held that a state could not apply a no-aid clause to bar religious schools from a scholarship program that was open to private schools. In Carson v. Makin in 2022, it extended the principle to a Maine tuition program that excluded religious schools because of what they teach. The whole sequence is laid out in From Everson to Carson, the Court Cases That Opened the Door to Choice.

So here is the present state of play. A state may decline to fund private schooling at all. The Constitution does not make it start. But if it opens its program to private schools, it cannot exclude schools because they are religious, and the old clause cannot be used as the excuse. The clauses remain in the books. Their sharpest edge has been taken off.

What is unsettled is how far that rule extends in other settings, and which other provisions in state constitutions can still be used against programs. In 2006, for example, the Florida Supreme Court struck down that state's Opportunity Scholarships in Bush v. Holmes on the strength of a different provision, the requirement of a uniform system of free public schools. That kind of clause was not the target of the 2020 and 2022 rulings. That is for the courts and legislatures of each state, and it is why the argument is far from over.

What you can do

A family should know three things.

1. Read your state constitution's education article. It is online, and it is usually shorter than a lease. Search for the word "sectarian."
2. Find out whether your state has a choice program, and whether it excludes religious schools. If it does, ask your legislator why, given the 2020 and 2022 decisions.
3. If your state's constitution has a Blaine-type clause, ask whether your legislature should repeal it. Several states have had ballot measures on the question, and the results differ by state. Repealing a clause that was born in prejudice is a cause that has no business being partisan.

A related story, about a 1920s law that tried to eliminate private schools entirely and handed parents their constitutional shield, is in The Klan-backed school law that gave American parents a constitutional right. The companion piece on this very subject, written for state lawmakers, is at The Blaine Amendments and the Century-Old Fight Over Religious Schools.

The bottom line

• The Blaine amendment failed in Congress in 1875, but its idea spread into state constitutions, driven in large part by anti-Catholic politics that the Supreme Court has since described in plain terms.
• The best defense of the clauses is the old Virginia principle that no one should be taxed to support another man's religion. It is a good principle, but it does not describe a family choosing a school with a scholarship.
• In practice the clauses were used to strike down programs for children with disabilities, foster children and local families trying to widen their options. That is the human cost.
• After Trinity Lutheran, Espinoza and Carson, a state that funds private schools cannot exclude religious ones for being religious.
• Read your own state constitution. If it contains a no-aid clause, ask your legislator what it is for today, and whether it should still be there.