Quite the important case was filed in federal district court in Manhattan last week. A former New York Jet with a masters degree in education who is also pastor of Harlem’s New Horizons Church, Rev. Michael Faulkner, wants to open up a charter school in Harlem or Washington Heights that would be affiliated with his church but would not have a religious component to the curriculum. However, the New York Charter Schools Act explicitly states that “A Charter shall not be issued to any school that would be wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine would be taught.”

Mr. Faulkner, with the help of the Gotham Legal Foundation, is suing to have that section of the law changed under the theory that it is in violation of his rights under the First Amendment’s Free Exercise Clause as well as the Fourteenth Amendment. While we are broadly sympathetic to the view that current law in New York state discriminates unconstitutionally against religious institutions, particularly in matters related to education, we can’t help but think Mr. Faulkner’s first stop ought to be the state legislature rather than the federal judiciary.

The problem here arises not so much from the Charter Schools Act as from New York’s notorious Blaine Amendment. Named for James G. Blaine of Maine, a speaker of the House of Representatives in the mid-1800s, the amendment contains stricter language regarding religion than that in the federal Constitution. The Plumed Knight, as James Blaine was known, hoped to ride anti-Rome sentiment into the White House. In 1875, he proposed an amendment to the federal Constitution stipulating that no public money shall go to schools “under the control of any religious sect.”

At the time, the schools were hardly bastions of secularism; instead, they preached a more popular form of Christianity, namely Protestantism. The anti-Catholic amendment passed the House but failed to gain the requisite two-thirds majority in the Senate. More than three dozen states, including the Empire State, turned around and adopted Blaine-like language in the ensuing years, and many western states were forced to add such language to their constitutions to be admitted to the union.

Any attempt to allow religious organizations to set up charter schools will require that the Blaine amendment be dispatched. This is why the teachers unions are the strongest supporters of maintaining a disgraceful relic of our nation’s anti-Catholic past. Ever since the Supreme Court ruled successful voucher programs such as those in Milwaukee and Cleveland legal, in the 2002 case of Zelman v. Simmons-Harris, it’s been an established federal constitutional principle that state aid can go to sectarian schools if provided in a religiously neutral manner; Blaine is the last fig-leaf that allows the unions and other opponents of choice at the state level to avoid a debate on the efficacy of such programs in favor of a debate over their legality.

So forcing the unions and the Albany politicians into a public debate over the need for the Blaine amendment would be instructive. Are assemblymen and senators, or even the governor, willing to stand by Blaine? Or has its unfairness and bigotry become too much to accommodate? Governor Spitzer, at least, has shown signs over the years of being open to loosening the rules restricting religious institutions’ involvement in education and to considering ideas like education tax credits. Perhaps he and others can be persuaded that it is at last time to amend the state constitution to do away with Blaine.

Mr. Faulkner may eventually have a case under the federal Constitution. The Supreme Court may be ready to resolve the question of the Blaine amendments. But before looking to the courts, Mr. Faulkner could do quite a bit of good by making his appeal to the people of New York. It would be an uphill battle. The unions control both branches of the legislature. But people will want to know why children are being denied a shot at a better education than that provided by our public schools simply because the monopoly is afraid of competition — and they’ll learn that some are willing to use any weapon at hand, even anti-Catholicism, to deny that better education.