With the death of state Blaine Amendments this week, religious schools that welcome state money might find that they are now subject to regulation that may undermine their very reason for existence. 


In 1875, President Ulysses S. Grant gave a speech calling for a Constitutional amendment that would require all students to attend public schools and prohibit the use of public money for private schools. The conservative talking point of the day, Grant's speech called for religious education to be left to families, churches, and private schools that did not receive public funding.

No Aid to Religion in State Constitutions

Later that year, Republican Congressman James Blaine proposed an amendment to the U.S. Constitution that would expand on the First Amendment by offering the following language:

"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."

Although it passed overwhelmingly in the House of Representatives by a vote of 180 to 7, it failed to meet the two-thirds requirement in the Senate.  But even though the Blaine Amendment was unable to become enshrined in the U.S. Constitution, thirty-seven states passed nearly identical laws in the decades to come. The upshot is that, contrary to what most people think, government funding of religious schools was legal unless a particular state forbade it through their own "no public money aid to religion" law or Blaine Amendment.

Religious Schools Claim Discrimination if they are denied state funds, but want to reserve the right to discriminate.

For many years, the "no aid to religion" provisions were synonymous with the concept of separation of church and state.

Then the arguments began to change – churches that did not receive money that they would have received if they were secular began to sue to get access to the state money. After all, if religious schools weren't being given state money, they argued the state was discriminating against them. This was the case even as they continued to assert the right to discriminate on the basis of gender, sexual orientation, and religion – things that similarly situated secular schools could not do.

Trinity Lutheran Church v. Comer (2017)

In 2017, the Supreme Court took a swipe at Blaine Amendments in Trinity Lutheran Church v. Comer. The Court ruled 7-2 that the state of Missouri had discriminated against a church school on the basis of religion (and violated its free exercise rights) when it did not allow the school to participate in a state program that provided recycled rubber playground surfaces to schools. At the time, the Court included the infamous "Footnote 3" that implied that the logic would only apply in a very narrow way to recycled playground surfaces.

Espinoza v. Montana (2020)

Fast forward to a 2020 case involving a Montana program that provides taxpayers with a tax credit of up to $150.00 if they donated the money to private education scholarship funds, which could then support religious or secular school students.

If you lived in Montana, you could donate money to a scholarship program, and get a $150.00 credit back when you filed your state taxes. Conceptually, this was different than, say, a $150.00 tax-deductible donation in which you'd be able to deduct the $150.00 from your income for the year and pay taxes on the resulting lower amount.

On June 30, 2020, the Supreme Court issued a narrower 5-4 decision finding that the no-aid provision (read "Blaine Amendment") violated the Free Exercise clause because it "bars religious schools from public benefits solely because of the religious character of the schools." Justice John Roberts, who wrote for the majority, said there was no requirement to put new programs in place, but if states are going to subsidize private education, "it cannot disqualify some private schools solely because they are religious."

In other words, states cannot discriminate against religious schools when it comes to state funding. This principle essentially makes Trinity's footnote 3 irrelevant and renders the Blaine Amendments across the nation unconstitutional.

The majority sidestepped the standing issue, which was that the state of Montana had dismantled the program since the case had initially been filed and would not need to reinstate a tax-credit program that was not required on a national basis.

When it comes to regulation, what happens when the party in power changes?

The issue of whether state funding of private schools could be used to control or regulate religious schools remains in question. State money rarely comes without regulatory strings attached, and once schools become dependent on state-level subsidies, they may find that they need to start making changes in hiring or teaching practices in order to comply with state law.

Meanwhile, on June 29, 2020, the Court ruled 5-3 in USAID v. Alliance for Open Society International that foreign entities of international humanitarian organizations (NGOs) do not have free speech rights and can be compelled to sign pledges that they are anti-prostitution and anti-trafficking. Prostitution and trafficking can reasonably be seen as negatives, but there is nothing in the ruling that can stop a future administration from requiring NGOs to make similar statements that they will not oppose abortion.  The point is that with government money comes government control.

This could play out like this: States could give funds to religious educators, wait until they are dependent on those funds, and then require them to make certain non-discrimination statements, statements that all faiths are equally valid, statements in favor of reproductive choice in ways that offend their core beliefs as a condition of receiving the money that they now depend upon to survive.

With the death of state Blaine Amendments this week, religious schools that welcome state money might find that they are now subject to regulation that may undermine their very reason for existence.

The old adage remains as true as ever, "Be careful what you wish for."


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