Reconstructing the Blaine Amendments

In the wake of the Supreme Court's decision upholding school vouchers in Zelman v. Simmons-Harris, school choice proponents have turned their attention to the state Blaine Amendments. Blaine Amendments are contained in 37 state constitutions, and are modeled after a failed federal constitutional amendment sponsored by James G. Blaine in 1876 that would have prohibited the states from allocating state funds and other resources to sectarian organizations. Thus, even though Zelman appears to have removed all federal Establishment Clause impediments to properly structured school choice programs, Blaine Amendments continue to stand in the way of such programs. The validity of the Blaine Amendments as currently enacted is doubtful. Blaine's federal amendment and the state amendments it inspired were largely motivated by anti-immigrant and (in particular) anti-Catholic sentiment. In addition, the Amendments by their terms impose special burdens on religious schools in the distribution of state funds and other financial aid to education. Both characteristics generally trigger heightened judicial scrutiny. Nevertheless, important constitutional questions would remain even if most of the Blaine Amendments are struck down. Though they were originally motivated by anti-Catholic hostility, the Blaine Amendments were also early manifestations of an ideology of church-state separation which remains well within the constitutional mainstream. Thus, even if the Blaine Amendments are struck down, separationist sentiment in many states is likely to stimulate exploration of alternative means of restricting the allocation of state education funds to religious schools, such as requiring that all private schools participating in school choice programs meet secular requirements, such as antidiscrimination laws, as a condition to such participation. Such conditions would raise questions about the meaning and scope of the neutrality that now appears to have become the dominant doctrinal concept in Religion Clause jurisprudence. I argue that neutrality prevents government from conditioning the receipt of social welfare benefits on religious affiliation (or lack thereof), but should not generally prevent government from imposing secular conditions on such receipt. I close with a brief discussion of issues raised by three likely conditions that states would attach to a religious school's participation in school choice programs: the school's compliance with antidiscrimination laws, its satisfaction of curriculum and other state educational mandates, and its condemnation or advocacy of certain ideas.