Is Eliot Spitzer hostile to Catholics? Does he have a grudge against religious Jews? The answer to both questions is no. But it would be understandable if New Yorkers had doubts after his initial comments on Governor Pataki’s proposal for a modest test of tuition tax credits for private schooling, including parochial schooling and Jewish day schools. The program, involving modest but important credits of $500, is designed to help children of all religions trapped in failing public schools in the state.

The ink was barely dry on the governor’s proposal when Mr. Spitzer fetched up with a statement – quoted by our Jacob Gershman on page 1 yesterday – that there might be constitutional problems with Mr. Pataki’s plan. Mr. Spitzer cited both the federal Constitution and the state constitution. Two of the Republicans seeking the governorship, John Faso and William Weld, instantly recognized this as a gaffe, as did the Catholic League, and pounced.

What Mr. Spitzer said was, “We all know there are going to be some serious legal issues that are raised by that depending upon how those $500 are used.” What sort of legal issues? “Whenever there is state funding tax dollars used for nonpublic schools, parochial schools in particular, there are First Amendment issues that are raised.” In fact, there most decidedly are not, at least if one still believes in the authority of the United States Supreme Court.

The nine have been expanding the reach of parental choice in education since the 1920s when, in Pierce v. Society of Sisters, the court first ruled that parents have a right to send their children to any school, including a religious institution. The court also has interpreted the First Amendment’s mandate that “Congress shall make no law respecting an establishment of religion” to sanction a variety of programs that have the effect of directing public money to religious institutions.

This First Amendment jurisprudence has culminated, in June 2002, in Zelman v. Simmons-Harris, which upheld a full-blown school voucher program. The Court has consistently applied a test that determines whether the state money is intended to benefit the institution or the students. It has found that many education spending programs that include religious schools, from providing computers to textbooks (in secular subjects), meet this test. The principle is that the students themselves are the primary beneficiaries and the schools only benefit as the result of a student’s choice, and not the government’s.

Where Mr. Spitzer ran into danger, however, was when he also pointed to a provision in New York’s state constitution known as the Blaine Amendment. New York, like more than 30 other states, has a so-called Blaine amendment specifically banning state aid to religious institutions. Judging by precedents in New York and elsewhere, however, this may not present much of a practical roadblock for a tax credit proposal.

As far back as 1967, the New York Court of Appeals ruled that a law requiring school districts to loan textbooks to religious schools was constitutional even under the state’s Blaine amendment. And courts in a number of other Blaine states have upheld tax credit programs bearing a strong resemblance to what Governor Pataki has in mind. But more troubling than Mr. Spitzer’s apparent unfamiliarity with precedents in his own state’s courts is his instinct to do anything other than vow to get around Blaine as best he can.

Blaine amendments are constitutional monuments to anti-Catholic bigotry going back to the early decades of our country. It was, in the first years of the new United States, not uncommon for state or local governments to support religious institutions. But all were Protestant. As Catholic immigrants began to arrive in the 19th century, fears of a papist conspiracy began to ferment. The result was a long-running, multi-front war against the forces of “popery” in this country.

James Blaine entered this war in the second half of the 19th Century, when he was Speaker of the House and later Senator from Maine. He does not appear to have been a fervent anti-Catholic himself – his mother might actually have been a member of the Roman church – but he was an opportunistic politician. And a Republican in an era when the Republican party was dominated by Catholic-fearing nativists, while their Democratic opponents were becoming ever more successful at courting Catholic immigrant voters.

In the 1870s, Blaine tried to amend the federal constitution to cut off all government funding to religious institutions, an implicit recognition that such funding would be allowable absent such an amendment. Although his amendment won majorities in both houses, he fell just short of the super-majority required in the Senate. So nativists took the fight to the states.

Congress required new states entering the union to include Blaine provisions in their state constitutions. And many old states were also happy to comply. In the 1840s, New York had enacted a statute similar to what is now known as a Blaine amendment, enshrining it in the state constitution toward the end of the century. By the 1880s, Catholic-bashing literature was a distinct genre.

Tracts appeared with titles like “Pope or President? Startling Discoveries of Romanism as Revealed by its Own Writers,” “Six Months in a Convent,” and “The Testimony of an Escaped Novice from the Sisterhood of St. Joseph.” Then came a Baptist minister from Boston, Justin Fulton, who took up the nativist cause with a vengeance in books like “Washington in the Lap of Rome” and “Woman in the Toils of Rome.” He supported Blaine amendments in a work entitled “Italy as It Was and America as It May Be”:

“We owe it to our children to adopt an amendment to the constitution which shall forbid appropriations for the benefit of any institution under sectarian control or for any religious or non-religious sect,” he wrote, warning that absent such an amendment “Rome will hold the republic in her grasp.” Blaine amendments, in other words, were the ugly blossoms of poisonous rhetorical vines.

It is an unfortunate fact of history that this is the flag Mr. Spitzer is reaching for when he suggests, as he did Wednesday, that the state’s constitution might thwart a tuition tax credit, despite even contrary precedent from the state’s highest court. To his credit, Mr. Spitzer clarified his remarks yesterday by saying “I cautioned that state government must be careful when it devises such programs because of potential constitutional problems. These comments should not be construed to imply that I believe that there are such problems in Governor Pataki’s proposal, or that I am opposed to education tax credits.”

New Yorkers will be glad to hear it, and not just those wanting to send their youngsters to Catholic schools. Agudath Israel of America, the largest grassroots organization in the country for fervently religious Jews and one of the most far sighted institutions addressing questions of religion in America, was one of the first to praise the governor’s tuition tax credit plan. The fact is that a broad and growing range of New Yorkers recognizes that the governor’s proposal is a moment of truth in the struggle not only for educational equity but freedom of religion as well.