A Fitting Farewell to the Blaine Amendments

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The New York Sun

Congratulations to the Supreme Court for finally puncturing the religious bigotry of the Blaine Amendments. It did so by ruling Tuesday that the Constitution forbids Montana from excluding religious schools from a state scholarship program. Wrote Chief Justice Roberts: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

That, we predict, will become a famous sentence. And we don’t mind saying that we’ve been waiting for this decision for a long time. The Blaine Amendments — animated by anti-Catholic sentiments and enacted beginning in the 19th century by some 30 states — were inspired by an ex-Speaker of the House, James G. Blaine, known as the Plumed Knight. The amendments established a high bar against state aid to religious schools.

These columns have been campaigning against the ghost of Blaine since our first season in print. The Blaine Amendments, which tried to block any taxpayer funds from going to sectarian schools, are discussed repeatedly in the various opinions in this case. What strikes us is the broad hospitality to religion that is evinced in the majority opinion by Chief Justice Roberts and concurrences by Justices Thomas, Gorsuch, and Alito.

On its face, what was at issue in Montana was a relatively modest program. It involved the grant by the state legislature of tax credits for donors to organizations that offer scholarships for tuition to private schools. Montana tax authorities, fearing the state’s Blaine amendment barring aid to any school “controlled in whole or in part by any church, sect or denomination,” stepped in.

The tax authorities promulgated a rule prohibiting families from using the scholarships at religious schools. Three mothers blocked from using scholarship funds for a Christian school turned around and sued. They lost in the state supreme court, which tossed out the whole program. At the U.S. Supreme Court, Justices Ginsburg, Sotomayor, Kagan, and Breyer would have, for various reasons, also bowed to Blaine.

The majority, though, swept all that aside in a broad assertion of religious freedom. “What point is it,” Justice Gorsuch wrote in a concurring opinion, “to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?

“What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.”

Reading through these various opinions, we kept thinking of Justice Scalia. He tried to beat back the idea, which seems to be prospering in our secular age, that religion is somehow a threat to our democracy. That was not the view, as he put it in a famous case known as Lamb’s Chapel, of our Constitution’s adopters, “who believed that the public virtues inculcated by religion are a public good.”

The ruling this week is being welcomed by the White House as removing “one of the biggest obstacles to better educational opportunities for all children.” An advocate of school choice, Yehoshua Bedrick of EdChoice, is quoted by the Jewish News Syndicate as calling the ruling a “major victory” for families seeking an education “in accordance with their religious tradition and values.” It’s a fitting farewell to Blaine.

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Image: Drawing by Elliott Banfield, courtesy of the artist.


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