The Blaine Amendments and the Century-Old Fight Over Religious Schools

Religious freedom has some strange defenders. A state sets up a program to help families pay for school, and says any private school may take part, as long as it is not religious. The state's lawyers insist this is a noble defence of religious freedom. Now ask where the rule came from, and the answer is a political movement in the 1870s that wanted public money kept away from Catholic children. A rule born of suspicion of one church, defended for a century and a half as a shield for all churches. If you wrote that into a novel, the editor would send it back for being too neat.

It is not fiction. It is the story of the Blaine amendments, and it is one of the strangest and most useful stories in American education law. It explains why a good many state constitutions say what they say about religious schools, why school choice has been so hard to win in some states, and why three Supreme Court decisions between 2017 and 2022 mattered so much. I'll tell it in order.

The common school and the Bible fight

Start with what public schools were in the middle of the nineteenth century. They were called common schools, and they were built by Protestant reformers, with a Protestant default. A typical school day included reading from the King James Bible, and no one thought that was unusual. For the Protestant majority it was simply what a school was.

Then came the immigrants. Irish and German Catholics arrived in large numbers in the 1840s and 1850s, and their bishops asked an obvious question. If the public school day includes a Protestant Bible and Protestant prayers, why should Catholic families send their children there, and why should they pay for schools they cannot in conscience use? Some asked that their own schools receive a share of the public school fund. Others asked only that their children be excused from the Protestant devotions.

The response was not polite. In Philadelphia in 1844, a dispute over which Bible would be read in public schools turned into riots that left people dead and Catholic churches burned. In New York, the argument over public school money and who controlled the schools ran through the 1840s, and the legislature in 1842 moved to take control of the city's schools away from the private society that had run them and to bar sectarian teaching in them. In the 1850s, the Know-Nothing movement made hostility to Catholic immigrants the heart of a political party. I'll say it plainly: this was bigotry, and a reader who wants to defend the old clauses has to start by admitting what was in the water.

President Grant and Speaker Blaine

Fast forward to the 1870s. The Civil War was over. Reconstruction was winding down. The Republican Party, which had ridden the great moral cause of ending slavery, was looking for a fresh issue, and the common school was handy.

In September 1875, President Ulysses S. Grant gave a speech in Des Moines, Iowa, to a veterans' gathering. He called for free public schools, open to children of every sect and race, and he called for keeping church and state separate. A few months later, in December 1875, James G. Blaine of Maine, the Speaker of the House and a man with eyes on the presidency, introduced a constitutional amendment.

Here is what it did, in plain terms. The First Amendment at that point restrained only Congress, and states could do as they wished. (The Fourteenth Amendment, ratified in 1868, would eventually be read to carry most of the Bill of Rights to the states, but that came much later.) Blaine's proposal would have applied the ban on an establishment of religion to the states, and it added a rule that no tax money raised for public schools, and no public school lands, could be put under the control of a religious sect or divided among sects.

Read as ordinary text, a lot of it sounds reasonable. Who wants the public school fund carved up between churches? But Blaine's contemporaries knew exactly who the target was. Newspapers and cartoonists, including Thomas Nast in Harper's Weekly, drew the Catholic hierarchy as a menace to American schoolchildren. Blaine himself had a political reason to want the issue alive, and historians have long described the amendment as a campaign move as much as a principled one. I'm not claiming to read his heart. I am saying the cartoons are in the archives and you can look at them.

The House passed it. The Senate, which needed two-thirds, did not. The federal Blaine Amendment died in 1876.

The loss that won: the states

If you stopped there, the story would be a footnote. It is not a footnote, because the movement lost the national fight and won the state fights.

Here is how. First, Congress made new states write the idea into their constitutions as a price of admission. The Enabling Act of 1889, which opened the door for North Dakota, South Dakota, Montana and Washington, required those states to provide for public schools open to all children and free from sectarian control. Later enabling acts for other territories carried similar terms. Second, state after state, already stirred by the same politics, wrote or amended their own constitutions with provisions barring public money from religious schools. By the time the dust settled, something like three dozen states had some version, and the Supreme Court would later say so in just those terms.

That is why people call them "Blaine amendments," even though the actual Blaine Amendment never became part of the national Constitution. They are state clauses, in different words from state to state, and they are the descendants of the failed federal proposal. Some are narrow: no money to schools "controlled by" a sect. Some are broad: no public funds for "any sectarian purpose" or "any religious institution". The breadth matters, as we'll see.

What the defenders say

The other side is worth hearing at its best, because it is more than a cover for prejudice.

The strongest version is this. One, taxpayers have a conscience, too. Thomas Jefferson's Virginia Statute for Religious Freedom of 1786 declared that forcing a man to fund the spread of opinions he disbelieves is sinful and tyrannical. A Baptist, a Jew, an atheist or a Catholic may not want a dollar of tax money going to teach the doctrines of some other church. Two, religious schools themselves may not want the strings that come with money. Government dollars come with government rules, and many a church school has asked whether it would lose control of its mission by taking the check. Three, the clauses have defenders who had nothing to do with 1875. Plenty of Baptists in the nineteenth century, and not a few Catholics, held to the principle for its own sake.

That is a serious argument, and the folks who make it are not all bigots. I'd even grant that a state may sensibly decide, as a matter of policy, to build no school-aid program at all. That is a different thing from what the clauses were increasingly used to do.

Where the clauses went wrong

Here is the answer, and it has three parts.

One. The history is not decoration. A rule written to disadvantage a disfavoured religious group does not become neutral because a century has passed, and judges are entitled to notice. Justice Clarence Thomas, writing for a plurality in Mitchell v. Helms in 2000, said that the old hostility to aiding "pervasively sectarian" schools had a shameful pedigree rooted in anti-Catholic bias. He did not have a majority, but the point stuck.

Two. The modern programs are not what Blaine was fighting. A voucher or tax-credit scholarship does not hand a check to a church. It gives a family money, and the family picks the school. In 2002, in Zelman v. Simmons-Harris, the Supreme Court held that Ohio's program in Cleveland did not violate the First Amendment's Establishment Clause, because aid reached religious schools only through the genuine, independent choices of parents. That settled the federal question for programs designed that way. It did not settle the state question, because a state constitution can say more than the First Amendment says.

Three. Excluding people because they are religious is itself a problem under the Constitution. The Free Exercise Clause means the government may not penalize someone for being religious. In 2004, in Locke v. Davey, the Court split on that line and upheld Washington's refusal to give a scholarship to a student studying devotional theology, reasoning that this was a narrow, historic interest and not hostility to religion. That decision would turn out to be a guardrail. Later cases kept it in place and gave it a boundary.

The three decisions

Now the cases that moved the line.

Trinity Lutheran Church of Columbia v. Comer (2017). Missouri ran a program that paid for resurfacing playgrounds with recycled tires. A church preschool applied, ranked highly, and was turned down because Missouri's policy, grounded in its own constitution's no-aid clause, barred grants to churches. The Court held, in an opinion by Chief Justice John Roberts, that the exclusion violated the Free Exercise Clause. The state had forced the church to choose between being a church and getting an otherwise available public benefit. A footnote said the decision concerned playground resurfacing, and it left the larger questions open, which is the sort of footnote that makes lawyers buy new briefcases.

Espinoza v. Montana Department of Revenue (2020). Montana created a tax credit for donations to scholarship funds that helped families pay private school tuition. The Department of Revenue wrote a rule saying the money could not go to religious schools, citing Montana's constitution. Parents with children in a religious school sued. The Montana Supreme Court held that the program itself violated the state's no-aid clause and, remarkably, struck down the whole thing. The U.S. Supreme Court, again through Chief Justice Roberts, held that once a state subsidizes private education, it cannot cut religious schools out because of their religious character. The decision came on June 30, 2020. The majority said it did not need to decide whether Montana's clause was tainted by its history, since the clause failed on free exercise grounds anyway. Justice Samuel Alito, in a separate opinion, laid out the Blaine history in detail.

Carson v. Makin (2022). Maine has many rural towns with no public high school. They pay tuition for students to attend a school the family chooses, public or private. But Maine's law said private schools in the program had to be "nonsectarian." Parents who wanted a religious school sued. The Court held, in a decision of June 21, 2022, again by Roberts, that the rule violated the Free Exercise Clause. Maine had argued that it was excluding based on what the school would do with the money, namely religious instruction, not on what the school was. The Court did not accept that distinction, observing that discrimination on the basis of religious use is as problematic as discrimination on religious status. Locke v. Davey survived, but only as a narrow exception for training clergy.

Lay the three side by side and the logic is a staircase. Trinity Lutheran said a church cannot be excluded from a general public benefit because it is a church. Espinoza said a state cannot keep religious schools out of a scholarship program because they are religious. Carson said a state cannot get around that by excluding them because of what they teach.

What the decisions do not do

People get carried away here, so let me be exact about the limits. These are the facts and the value claims, kept apart.

The factual claims. The Court did not say states must fund private school choice. A state may still choose to have no program, and I'd note that some state courts have been just as skeptical of programs on other grounds. In Florida in 2006, in Bush v. Holmes, the state Supreme Court struck down the Opportunity Scholarships program, relying on the constitution's requirement of a uniform system of public schools rather than on the no-aid clause. And Florida voters in 2012 declined to repeal the state's no-aid language when it was put to them. In Colorado, the state Supreme Court in 2015 struck down a county voucher program under that state's no-aid clause, and after Trinity Lutheran the U.S. Supreme Court sent the case back for reconsideration. The details of those cases are for a lawyer. The pattern is what matters: state clauses were the main obstacle, and the federal cases changed the playing field.

The decisions also do not decide whether a state may fund schools that discriminate in admissions or go against the state's civil-rights rules. They do not tell a state how to treat a particular curriculum. Those fights are still going.

The value claim, mine, is separate. I think the old clauses should go, by amendment where voters will support it, and by the courts where the Constitution requires it. I think so because the point of public education spending is children, not institutions, and no family should lose a benefit because they chose a church school over a district school.

How a legislator or a voter should use this

If you are in a state that has a Blaine-style clause, the practical rules are these.

1. Read the text. Your state constitution is on the legislature's website. Find the education article and look for words like "sectarian," "religious," and "aid." The exact wording decides what your state can do.
2. Design for choice. Programs where the money follows the child to whatever school the parent selects have the best record in court. That was the Cleveland model upheld in Zelman.
3. Open it to everyone. After Espinoza and Carson, a program that is open to private schools should be open to religious private schools too.
4. Expect lawsuits. Teachers' unions and school boards have sued over these programs, and they will keep suing. Build a record that the program was designed around the family.
5. Consider an amendment. In some states the cleanest fix is to repeal or rewrite the old clause, which is a state-by-state fight that takes patience.

For the wider picture, see The Blaine Amendments and the Old Bigotry Still Sitting in State Constitutions, which looks at the clauses by state text, and From Everson to Carson, the Court Cases That Opened the Door to Choice for the full run of cases. If you want to understand why states can write such different rules, State Constitutions Versus the U.S. Constitution, Side by Side explains it. For the mechanics of the programs themselves, try Vouchers, Tax Credits, ESAs and Charters Compared for State Lawmakers and How a School Voucher Works, From the State Check to the Classroom Door. And for the Founding-era argument the defenders love to cite, Baptists, Madison and the Virginia fight that put religious liberty first tells it from the Baptist side. The cases are also pulled together in Five cases that ended America's religious penalty in school aid.

The bottom line

• The Blaine Amendment itself failed in Congress in 1876, but its idea became state constitutional clauses, helped along by the 1889 Enabling Act and the anti-Catholic politics of the time.
• Trinity Lutheran (2017), Espinoza (2020) and Carson (2022) hold that a state that funds private choices may not shut out religious options because they are religious.
• The defenders of the old clauses have a serious point about taxpayer conscience, but it does not justify punishing a family for choosing a church school when the state opens the door to other private schools.
• Read your own state constitution's education article and your legislature's school-choice bills. The wording decides what is possible.
• If you want a program in your state, back one built around parents, not institutions. That is how you win in court, and it is also how you do right by the child.