One person we’d hate to be today is the ghost of the Plumed Knight. We speak of James G. Blaine of Maine, the erstwhile speaker of the House of Representatives and the namesake of the Blaine amendments that blight the constitutions of 36 of the states, including that of New York. The amendments are modeled after the change he sought and failed to make to the Federal constitution. They were adopted by various states, mostly in the late 19th century, in a wave of anti-Catholic bigotry and forbid state aid to religious education. Now it looks like they are on their way to joining Blaine himself in the dustbin of history. Just ask the appeals judges who ride the Ninth United States Circuit.

They handed down last week a ruling that the Blaine Amendment in the state of Washington is in direct conflict with the Free Exercise Clause of the First Amendment. The problems with Blaine had already begun to come into focus in the wake of the Supreme Court’s ruling, in Zelman v. Simmons-Harris, that state-sponsored school vouchers do not violate the Establishment Clause so long as they are neutral between secular and religious education institutions. The Ninth Circuit — the one that the other day outlawed the Pledge of Allegiance — bows to Zelman and comes at Blaine more directly still.

The case before the Ninth Circuit, Davey v. Locke, involved a Washington State law that singles out theology students for exclusion from college benefits that are available to all other students. The student in court, Joshua Davey, enrolled in an accredited institution and declared a major in pastoral ministries only to be denied a scholarship because he was planning to study a religious vocation. The state’s Higher Education Coordinating Board justified its denial with reference to Washington’s state constitution, which notoriously has the strongest Blaine amendment in America, reading in part, “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”

This was too much for Judge Pamela Rymer. Writing for the majority of the panel of three riders of the Ninth Circuit, she found that the state’s policy facially discriminates on the basis of religion and thus must survive the test of strict scrutiny. “We are not persuaded that it does,” Judge Rymer writes. Continues Her Honor: “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.”

We wouldn’t want to speculate too far down the road, but if a scholarship to study for a religious vocation cannot be blocked by Blaine, it’s got to be harder to use Blaine to block a voucher to a primary or secondary school that happens to be religious. Washington State can still make an appeal to the full bench of the Ninth Circuit, one of the most liberal in the land. For now, however, the decision stands for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. This conflicts with the situation elsewhere in the country. While in some states, state supreme courts and appellate benches have ruled that Blaine amendments impose no greater limitations than the federal Establishment Clause, other states have held differently. We’re starting to see the kind of perfect storm that, legal experts agree, is going to have to land Old Blaine before the Supreme Court.