Last Gasp of the Plumed Knight?

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The New York Sun

Just when it seemed the ghost of James G. Blaine had been banished, his spirit has returned to torment religious freedom advocates. They will be arguing next week before the Supreme Court in a case centering on public funding for religious schools in Maine, which Blaine represented in Congress between 1863 and 1881. Taxpayer support for parochial schools was Blaine’s bête noire. Blaine tried to win an amendment to the United States Constitution. He failed.

The Plumed Knight, as he was called, succeeded, though, in getting inserted into state constitutions across the country what came to be known as “Blaine Amendments.” For decades these measures barred parochial schools from receiving public monies other private schools were routinely granted. A 2020 Supreme Court ruling seemed to put the kibosh on such discrimination. Yet Maine insists its state law “permits only nonsectarian schools to receive public funds for tuition purposes.”

The parents contesting Maine’s law aren’t the only religious freedom proponents before the court. The justices will hear in January from a Boston-based Christian organization whose request to fly its flag on a municipal flagpole was denied despite other groups’ requests being allowed. The court is also considering whether to take the case of a designer who wants to refuse business if it requires her “to create and express messages and celebrate events that violate her faith.”

It’s the Maine school case that conjures the specter of Blaine, however. Chief Justice Roberts’ decision in Espinoza v. Montana Department of Revenue did much to defang Blaine-style amendments and laws. “A State need not subsidize private education,” he wrote. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” We congratulated the Supreme Court then “for finally puncturing the religious bigotry of the Blaine Amendments.”

Chief Justice Roberts himself acknowledged the decision left open a key question. What’s the difference between denying public money to a school merely because it is parochial, as opposed to holding back the money because it would be used for religious instruction? Maine argues in its defense that it is “not the religious status of an organization” that keeps some schools from getting taxpayer dollars, “but the use to which they will put those funds.”

In light of Maine’s sparse population, over half of its school districts lack public middle and high schools. So the Pine Tree State, its lawyers explain, “uses private schools to deliver a public education in place of public schools.” As a result, the state “has a compelling interest” to make sure students get an education at these private schools that “is the substantive equivalent of what students would have received if they attended a public school.”

Maine says it never had a Blaine Amendment, and its Attorney General merely determined that “public funding of religious schools would violate the Establishment Clause.” Meanwhile parochial schools can receive state funding if they are “willing to provide a nonsectarian education.” Maine also suggests that the Christian religion of two of the parents in the case “neither requires them to send their daughter to a Christian school nor prevents them from sending her to a public school.”

Can a secular government decide Christian teaching? No wonder lawyers for the Christian parents want the Supreme Court to resolve the question it dodged in 2020. They point to an earlier parochial school funding case, Mitchell v. Helms, in which Justice Thomas’ plurality opinion said that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs.” Said he: “This doctrine, born of bigotry, should be buried now.”


Image: Detail of a photograph of James G. Blaine, from the Library of Congress, via Wikipedia.

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