Time is running out on the amendments to 36 state constitutions — including that of New York — that ban state money from flowing to religious schools. Known as Blaine amendments, after the nativist speaker of the House of Representatives during the Grant administration, these provisions are a vestige of this nation’s anti-Catholic past. After the Supreme Court’s landmark decision in the case of Zelman v. Simmons-Harris, where the Court ruled vouchers to religious schools constitutional, Blaine is the next bridge to cross. Blaine battles have broken out around the country, and one may be on its way to the Supreme Court of the United States.

On the coast, Washington State is arguing that its Blaine amendment allows it to maintain a scholarship program that singles out theology students for exclusion from college benefits that are available to all other students. The Ninth Circuit disagreed last summer, in the case of Davey v. Locke. Judge Pamela Rymer, an appointee of the elder President Bush to the most liberal circuit in the nation, penned the decision for a three-judge panel. She found that the state’s policy, on its face, discriminates on the basis of religion and thus must survive the test of strict scrutiny. “We are not persuaded that it does,” Judge Rymer wrote. She continued: “Washington’s interest in avoiding a conflict with its own constitutional constraint against applying money to religious instruction is not a compelling reason to withhold scholarship funds for a college education from an eligible student just because he personally decides to pursue a degree in theology.”

Now, Washington State is appealing the Ninth Circuit’s decision to the Supreme Court, and voucher advocates, such as the libertarian Institute for Justice, could not be more eager to see the case decided at the highest level. One of the prime factors that determines whether the Supreme Court decides to hear arguments in a case such as this is whether there is conflict between the appeals circuits. As the Institute for Justice argues in an amicus brief, joined by the Center for Education Reform, such conflict may well exist here. In Strout v. Albanese, the First Circuit upheld a Maine law that excludes parents from choosing a religious school under the state’s tuitioning program — a sort of proto-voucher arrangement that pays for parents in rural counties to send their children to public schools in other counties or to private schools. As the Institute for Justice argues: “Although Maine’s exclusion was due to a new clearly erroneous reading of the Establishment Clause, while Washington’s similar action is based on its Blaine Amendment, in both cases the courts [the First Circuit and the Washington district court] rejected the argument that the Free Exercise Clause mandated equal treatment of religious options, a position diametrically opposed to that of the Ninth Circuit in Davey.” Also, Vermont’s Supreme Court recently held that its compelled support amendment — a device similar to a Blaine amendment — allows the state to exclude religion schools from its tuitioning program.

If the Supreme Court were to accept the case, the reverberations would be felt even in New York. Though it is a dangerous business to predict the Court’s actions, it is hard to imagine that a program such as Washington’s discriminatory scholarships could be seen as complying with the Free Exercise Clause. It is currently untested whether New York’s Blaine amendment would impede school vouchers; it has already been found to allow publicly funded textbook loans to religious schools, and Attorney General Spitzer has explored other ways state aid could be directed to religious schools. But a Supreme Court ruling would foreclose the danger. What would be left is a political battle, the main hurdle in New York and other states whose political establishments are in the grips of teachers unions. National events give hope. In Colorado, Governor Owens, just last week signed a statewide bill to provide vouchers. Texas and Louisiana are also on the way to making such moves. Zelman reverberates and awaits the companion case that will magnify its reach.