Statewide public school systems were on the rise in the mid-1800s, in part because of Southern Reconstruction after the War Between the States (1861–65). This led to a struggle for power between public (government) schools and private religious schools. This raised a controversial question at the time—should public funding go to religious schools?
The Original Blaine Amendment
President Ulysses Grant gave a speech in 1875 calling for a constitutional amendment that would prohibit public money aiding religious schools. Republican Congressman James Blaine followed Grant’s speech by proposing the following amendment to the U.S. Constitution (known as the Blain Amendment):
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 therefor, 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.
The first clause of this amendment resembles the opening clause the First Amendment, with the substitution of “State” for “Congress.” Thus the Blaine Amendment would have applied the First Amendment’s Establishment clause and Free Exercise clause to the states. Originally, the First Amendment (along with the rest of the Bill of Rights) only applied to the Federal Government.
The rest of the Blaine Amendment would have prohibited all state money from aiding private religious schools (“of any religious sect”).
Blaine’s amendment passed the House of Representatives 180 to 7, but it failed the two-thirds requirement of the Senate by four votes. But this was not the end of the Blaine Amendment.
Ironically, the Supreme Court went on to apply the First Amendment to the states without an amendment to the Constitution, through what is known as the “incorporation doctrine.” The Court incorporated the Bill of Rights against the states through the Fourteenth Amendment (which was not the intention of the Fourteenth Amendment).
As for the prohibition of state money aiding private religious schools, this was done at the state level.
State Blaine Amendments
After the Blaine Amendment failed, most states passed their own version of the amendment. Some were put in place through state constitutional amendments, while others were implemented when states drafted new constitutions.
All but 10 states eventually included constitutional provisions that prohibited state money from aiding religious schools, thus earning the title “Blaine amendments.”
Such state amendments are still in effect today, though Louisiana repealed their version in 1974. South Carolina and Utah revised their Blaine amendments to allow “indirect” aid to religious schools. This leaves 37 states today with Blaine amendments in their state constitutions.
State Blaine amendments come into play today because they stand as a barrier to school voucher programs. Those favoring school vouchers want to be able to apply tax money to private schools, including religious private schools.
Blaine amendments have been challenged as violating the Free Exercise Clause of the First Amendment, and the Supreme Court agreed in a limited sense in the recent case of Trinity Lutheran v. Comer (2017).
What Should We Think of Blaine Amendments?
One of the primary motives of Blaine amendments was to prevent Catholic schools from receiving tax money. The early public schools were sold as non-sectarian schools with broad appeal to Protestant beliefs. Hence there was prayer and Bible reading in many public schools until the Supreme Court struck those down in the 1960s (wrongly).
These broadly Protestant public schools became a problem as Catholic immigration was on the rise in the 19th century. Catholic immigrants wanted their own schools with government funding, but many non-Catholics sought to prevent this.
So the origin of Blaine amendments is certainly questionable. But how should we think of Blaine amendments today? How one evaluates these laws is tied with one’s view of the relationship of church and state. Secularists on the political left have reinterpreted the First Amendment’s Establishment Clause to require a complete separation of religion and state (rather than church and state).
The secularist position does not follow the original meaning of the First Amendment. The First Amendment was designed to prevent the Federal Government from establishing a national church. Religion was still part of the Federal Government, including prayer to start Congress. But states could establish state churches, which they did well past the ratification of the First Amendment in 1791. Massachusetts was the last to disestablish its state church in 1833.
However, even religious people may find the idea of separation of church and state to be a good practice at both the federal and state levels. This does not require the expulsion of all religious practice in government (secularism). Rather, the separation of church and state simply means that there is no official state church (disestablishment).
But what about government funding of religious schools? A state with no established church can still fund religious organizations such as schools and hospitals. However, whether government should fund religious schools is only an issue because at some point in our history people decided that government should fund schools at all. This was a problematic decision for several reasons.
The primary problem of governments funding schools is that government funding always means government control. There is always a string attached to tax money. This is why everyone should oppose government funding of all schools. However, religious persons should particularly oppose government funding of religious schools. In this case, Blaine amendments are a good thing. Blaine amendments prevent the government from funding religious schools and thus prevent the government from controlling religious schools.
Extending Blaine Amendments to Non-Religious Schools
However, Blaine amendments have created a situation that has significantly advantaged non-religious schools. The so-called religiously “neutral” public schools receive tax money while private religious schools do not.
This is not a level playing field in the marketplace. Most people opt for “free” public schools, which decreases demand for private schools. Decreased demand means fewer private schools and decreased revenue for private schools. This means lower pay for private school teachers (apart from elite prep schools).
From this perspective, Blaine amendments are a problem for private schools. But the solution is not to rescind Blaine amendments and use government funding for private schools, as voucher advocates want. Rather than rescind Blaine amendments, we should extend them to include all schools—including non-religious schools.
In other words, we should prohibit all tax money from funding schools. This is the only way to prevent the government from favoring non-religious schools over religious schools. American public schools are currently undermining religion by subsidizing non-religious (and often anti-religious) schools. This is a situation that all religious people (and lovers of freedom) should oppose.