The Blaine Amendments are going on trial. Get ready for one of the most important education-related Supreme Court cases in 50 years: Espinoza v. Montana Department of Revenue. The case is on the schedule for hearing by the nation’s highest court on January 22, 2020.
A win for Espinoza would strike down the bigoted Blaine Amendments from the late 1800’s. They currently exist in state constitutions of 37 states; including New Hampshire. Blaine amendments deny kids attending private schools equal access to state education funds.
The issue in this case is whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student aid program simply because the program affords students the choice of attending religious schools.
Senator James G. Blaine was anything but a figure of fun. Blaine’s most prominent contribution to American political history was to further a particularly ugly form of discrimination. It was Blaine who channeled much of the generally anti-immigrant and specifically anti-Catholic feeling prevalent in 19th-century American society into the state constitutional amendments. Those amendments to state constitutions bear his name: the Blaine Amendments.
The Blaine Amendments found in most state constitutions resulted from Blaine’s failed attempt to amend the United States Constitution. In the period following the Civil War, anti-immigrant sentiment, particularly against Irish Catholics, was running high. Many saw the newcomers as poor, uneducated and loyal to a foreign power; the pope. They were thus a threat to the American way of life. As a result, many Protestants wanted to ensure that Catholics had no influence in public institutions, particularly in the public schools.
At the height of this ferment in 1875, President Ulysses Grant gave a speech to the Society of the Army of the Tennessee. In the speech he stated state and federal governments should not “support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan or atheistical dogmas.” Then as now, “sectarian” was a pejorative word meaning a religious person or institution that was out of the mainstream. It was thus in opposition to “true religion.” But in 19th-century America, it typically meant Catholics. And “dogmas” speaks for itself.
Having recently lost his role as speaker of the House, then-Representative Blaine immediately saw a chance to revive his presidential prospects by capitalizing on Grant’s speech. Blaine proposed an amendment to the U.S. Constitution forbidding any state from providing funding to a body “under the control of any religious sect.”
The proposed amendment immediately garnered broad support in Congress. It was a major topic of discussion in the run-up to the 1876 election. In August 1876, the Blaine Amendment easily passed the Article V two-thirds threshold in the House, 180-7. But it failed to reach the necessary two-thirds supermajority in the Senate.
Blaine Amendment proponents then moved their campaign to the states, where many versions of the federal Blaine Amendment were adopted. Typically they include the telltale word “sectarian.” With strong majorities in favor of Blaine Amendment legislation, Congress was not done either. After 1876 it began requiring, as part of Enabling Acts for new states in the West, adoption of a Blaine Amendment in each new state’s constitution as a condition for admission to the union. Eventually over 30 states adopted Blaine Amendments in their state constitutions.
Montana was no different. The delegates to the 1889 Montana constitutional convention were motivated by both their own anti-Catholic animus and that of Congress. For example, New Hampshire Senator Henry Blair said that the 1889 Enabling Act was “completing the unfinished work of the failed Blaine Amendment.” And as the Espinoza petitioners detail in their opening brief in the Supreme Court, Montana was a stew of anti-Catholic prejudice at the time it became a state. Now, the Blaine Amendments are going on trial.
Blaine at SCOTUS
What does all this history mean for a court deciding Espinoza in 2020? The Supreme Court does not write on a blank precedential slate when it comes to the Blaine Amendments. In Mitchell v. Helms, a plurality of the court declared that the Blaine Amendments were “born of bigotry.” Justice Stephen Breyer recognized the amendments’ anti-Catholic origins in Zelman v. Simmons-Harris.
In Locke v. Davey, a 7-2 majority noted the amendments’ discriminatory history. Moreover, just last term, Justice Clarence Thomas reiterated, in his concurring opinion in American Legion v. American Humanist Association, that “the ‘sectarian’ test ‘has a shameful pedigree’ that originated during the 1870s when Congress considered the Blaine Amendment.”
Having recognized the Blaine Amendments’ ugly history, the court should not hesitate to repudiate them categorically. Indeed, under Trinity Lutheran Church of Columbia v. Comer and other precedents it can do no other. As Trinity Lutheran put it, courts must impose strict scrutiny on “laws that target the religious for special disabilities.”
Under the court’s recent free exercise clause decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a law enacted with “hostility” that is “inconsistent with the First Amendment’s guarantee” of neutrality toward religion “must be invalidated.” Under that standard, Blaine Amendments as a category are presumptively unconstitutional under the free exercise clause.
Does history matter?
Some will quibble with the history, arguing that some politicians promoting Blaine Amendments took action out of political motives rather than personal enmity toward Catholics. But context matters: Pretending that the Blaine Amendments did not come from widespread and fervent anti-Catholic prejudice of the day would be like pretending that Jim Crow laws randomly arose in the post-Reconstruction South. The Blaine Amendments are going on trial for a very good reason.
But as the Supreme Court recognized in Hunter v. Underwood, Jim Crow laws didn’t “just happen.” The Blaine Amendments didn’t either. The anti-Catholic history of the Blaine Amendments cannot be whitewashed.
The leading post-Trinity Lutheran decision by a state supreme court has recognized that Blaine Amendments are no longer enforceable. In Moses v. Ruszkowski, the New Mexico Supreme Court had to decide, in a case that the Supreme Court remanded for reconsideration in light of Trinity Lutheran, whether the New Mexico Blaine Amendment could be enforced against a state textbook-lending program that benefited public schools and both secular and religious private schools.
The New Mexico Supreme Court conclusion; that contrary to its previous ruling, the state’s Blaine Amendment could not be the basis to invalidate a program that benefits both secular and religious entities. The court specifically explains that the anti-Catholic history of the Blaine Amendments means that the constitutional provision is not enforcable to exclude religious people from equal participation in government programs. And if the New Mexico Supreme Court recognizes that the Blaine Amendments’ anti-Catholic origins rendering them unenforceable under Trinity Lutheran, surely the United States Supreme Court can too.
Does bigotry prevail?
That shows how the court should decide Espinoza. Because of their indelible anti-Catholic origins, Blaine Amendments are presumptively unconstitutional under the free exercise clause. The state constitutional provision enforced by the Montana Supreme Court is a Blaine Amendment, and there is no reason the presumption should not apply. Therefore, the Montana Blaine Amendment cannot be the basis to invalidate the scholarship program at issue in Espinoza.
Taking that approach would put an end to Blaine’s odious legacy. And perhaps the shade of Senator Blaine could finally find rest as simply the man in the political rhyme. Blaine, Blaine, James G. Blaine, the continental liar from the State of Maine. The Blaine Amendments are going on trial and it is about time.