Since 2017, three US Supreme Court decisions have put to death the so-called Blaine Amendments found in 37 state constitutions. These Amendments prohibit states from using public funds to provide financial aid to religious institutions, including K-12 religious schools. Under the guise of “separation of church and state,” they have been the most common legal means used to thwart school choice programs that include religious schools. The Amendments were named after Republican James G. Blaine of Maine, who served in the US House of Representatives and Senate as well as in the administrations of three presidents.
In 1875, Congressman Blaine, who was then Speaker of the US House of Representatives, tried to amend the US Constitution to outlaw direct government aid to educational institutions with a religious affiliation. His aims revealed both nineteenth-century anti-Catholic bigotry and nativist tendencies hostile to immigrants: the amendments especially targeted Catholic schools that served large immigrant populations. That effort failed. But his idea was adopted by state legislators, who added provisions to state constitutions that accomplished what Blaine could not achieve nationally.
For decades, these legislative ghosts of nineteenth-century prejudices continued to haunt efforts to bring greater educational freedom to American families. Thankfully, the “slow motion execution” of the Blaine Amendments began in 2017 with the Supreme Court case Trinity Lutheran v. Comer. State officials in Missouri had denied the benefit of state funding to the Trinity Lutheran Church Child Learning Center preschool program in Columbia, Missouri for a playground resurfacing program due to the state’s Blaine Amendment.
The Court ruled 7 to 2 that this was unconstitutional because it violated the free exercise of religion clause of the First Amendment. In that decision, the Court introduced a distinction in Footnote 3 between a benefit based on an institution’s status or identity and one based on an individual’s use or conduct. In other words, Missouri could not deny a public benefit to an otherwise eligible institutional recipient solely on account of its religious status or identity.
The potential effect of this distinction was summarized by Institute for Justice senior attorney Michael Bindas. The footnote suggested that “although the government may not withhold a benefit based on the would-be-beneficiary’s religious status, or identity, it may withhold a benefit based on the religious use to which the would-be-beneficiary might be put. [This suggests a state constitution] could still bar a family from putting their educational-choice benefit to the use of procuring a religious education.”