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The ’Splainer: What is the Blaine Amendment and did SCOTUS kill it?

A school bus arrives at Trinity Lutheran Church in Columbia, Mo., on the morning of Oct. 18, 2016. RNS photo by Sally Morrow

(RNS) The ’Splainer (as in “You’ve got some ’splaining to do”) is an occasional feature in which the RNS staff gives you everything you need to know about current events to hold your own at the water cooler.

This week, the Supreme Court ruled in favor of a Columbia, Mo. church-run day care center seeking state funding for some chopped-up tires for its playground surface. At issue was the Missouri Constitution’s Blaine-type Amendment, which the state claimed prevented giving money — even for playground equipment — to a religious institution. The court ruled in favor of Trinity Lutheran Church. Was this the death knell for the little-known but widespread Blaine Amendment? Who was Blaine and would he have wanted to prevent a Midwestern day care center from padding the ground below its swing set and slide? Let us ’Splain …

What is the Blaine Amendment and where does it live?

The original Blaine Amendment was proposed in 1875 by James G. Blaine, a Republican U.S. representative from Maine who served as speaker of the House. He wanted to prevent government money from funding religious schools so he proposed a constitutional amendment intended to fortify the First Amendment’s establishment clause — the one about the separation of church and state.

But Blaine’s amendment didn’t pass. Instead, states took it up, and many put it in their constitutions. Fun fact — some legal scholars point out that several state constitutions have similar clauses that pre-date the Blaine Amendment, so they prefer the term “no-aid amendments.” In fact, many signed an amici brief in Trinity Lutheran case stating just that. Today, 37 states, including Missouri, have Blaine-type amendments on the books.

Why did Blaine want to emphasize the establishment clause? Isn’t it strong enough to keep government funds out of religious institutions?

To the time machine! Set the dial to the late 19th century. At that time, there was an influx of Catholic immigrants to the U.S., prompting a wave of anti-Catholic sentiment. This is also the time public education flourished. But Catholics were concerned by the Protestant religious practices that were then commonplace in public schools — daily Bible readings, prayer, etc. — but all from a Protestant perspective.

Catholics established their own parochial schools. The original Blaine Amendment was an attempt — some legal scholars say a biased one — to ensure no public money went to Catholic schools.

The establishment clause expressly prohibits government establishment of a religion. Blaine Amendments deal only with money. So the establishment clause is used to argue over creches or crosses on public land while Blaine Amendments are used to keep money from advancing a religious belief or a religious group.

And that is where things get tricky; not all Blaine Amendments are the same. Some are more restrictive than others. Florida, Georgia, Colorado, Wisconsin, Arizona and Ohio all have Blaine Amendments on the books, but they have reached different decisions in cases involving school vouchers and religious schools.

So what’s the big deal about this week’s case and the decision for the church?

The big deal is what it may mean for voucher programs. Even though the issue in Trinity Lutheran v. Comer was playground equipment, some see the court’s 7-2 decision in favor of the church as a sign that school voucher programs, which both President Trump and Education Secretary Betsy DeVos support, would survive future legal challenges. Currently, more than a dozen states have school voucher programs that involve religious schools.

Gravel paves the playground of Trinity Lutheran Church’s Child Learning Center in Columbia, Mo., on Oct. 18, 2016. RNS photo by Sally Morrow

“This decision has implications beyond scrap tires and church playgrounds,” Michael Bindas, an attorney with the Institute for Justice, said in a statement. “The Court’s reasoning sends a strong signal that, just as the Court would not tolerate the use of a Blaine Amendment to exclude a religious preschool from a playground resurfacing program, it will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs.”

But don’t plan a funeral dirge for the Blaine Amendments yet. Secular groups have pledged to fight. Americans United for Separation of Church and State called the ruling “harmful.”

“The religious freedom protections enshrined in state constitutions are worth more than resurfacing a playground,” the Rev. Barry Lynn, AU’s outgoing executive director, said in a statement. “This ruling threatens to open the door to more taxpayer support for religion, which is at odds with our history, traditions and common sense.”

About the author

Kimberly Winston

Kimberly Winston is a freelance religion reporter based in the San Francisco Bay Area.

18 Comments

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  • The Supreme Court got it wrong. They did not look at cash flow.

    Example: A church has $100 to spend and spends $15 on the playground, leaving $85 for promoting the religion. Now, however, it will be eligible to get $15 from the state. So, it does not need to spend its own $15 on the playground, and now it spends $100 on promoting the religion. In effect, the state has promoted the religion by allowing an indirect transfer of funds to that purpose.

  • No, the Supreme Court got it right. It simply ruled that states cannot discriminate against religious organizations when it comes to distributing state funds to private organizations fulfilling secular purposes.

  • “Cash flow” is irrelevant.

    There have been many, many cases over the years establishing that governments cannot discriminate against religious groups. The prohibition of religion-based discrimination is what the First Amendment is about.

    So if a state gives out money to private pre-schools for playgrounds, it cannot say, “if you identify as secular, we’ll give you money, but if you identify as religious, we won’t.” This is blatant religious discrimination.

    Either way, providing the funds potentially frees-up money for that organization to use for other things. If a socialist or a libertarian operates a pre-school, it potentially frees-up money for him to use spreading socialism or libertarianism. This is not the state’s concern. But if the state really dislikes the possibility of pre-school operators having disposable funds, it shouldn’t be handing out money to them.

  • Actually the FA Minter is using the same arguments that conservatives employed against planned parenthood despite the Hyde Amendment and the funds being patient reimbursement for non abortion services.

    Somehow money specifically earmarked for one purpose is considered funding something prohibited by virtue of being the same organization that does both.

    The argument is a bit removed from the actual facts. But it is the same one used verbatim by conservatives. One that somehow only becomes relevant when someone else uses it.

    If government money going to a church is OK if used for an allowed purpose, money to PP can be used the same way.

  • Frankly, I don’t see how denying state funds for a church’s “secular purpose” is abridgement of “free exercise.” Let alone the fact that if my church had such a playground we would be trying in some way indirectly or directly to proselytize the families that enjoyed the playground, plus, there is likely religious endoctrination going on in the school. Even if it isn’t in this particular church school, many that follow under this ruling certainly will promote their religion.

  • “Blaine Amendment” is simply propaganda code for any state constitutional provision to bar tax aid to religious institutions. The first “Blaine” was Jefferson’s addition to Virginia law in 1785, 45 years before Blaine was born. The most recent “Blaines” are in the Hawaii and Alaska constitutions — after WW II — and both upheld by voters in recent years. The actual Blaine Amendment was approved overwhelmingly by the House and fell a wee bit short of the 2/3 needed to pass the Senate.

    In 28 state referenda from coast to coast between 1966 and 2014 millions of voters rejected all efforts to divert public funds to religious schools by 2 to 1. The 2015 Gallup education poll showed support for “Blaines” nationally by 57% to 31%.

    “Blaines” are just code used by advocates of diverting public funds to religious private schools (Catholic, Evangelical, Adventist, Jewish, Muslim, etc. Such misuse of public funds would violate every taxpayer’s religious liberty right to support only the religious institutions he/she wants to support; would fragment our school population along religious, ideological, ethnic, social class, and other lines; and would destroy the public schools that serve 90% of our kids.

    Americans: our religious liberty, our constitutional heritage of church-state separation, our public schools, and our community are under serious threat from Trump, DeVos, Pence and too many GOP lawmakers. Note that in the GOP dominated Texas legislature the Republican representatives from rural and small towns have blocked school voucher bills because they know they will harm theor constituents.

    Edd Doerr, President, Americans for Religious Liberty

  • It’s an abridgment of “free exercise” because it places restrictions on people purely on account of their religion.

  • Well, if SCOTUS has declared that money is speech, then state money is speech, and if it goes to support a religion is it not a support of religion through state speech?

  • SCOTUS has rightly stated that money used to advance an agenda is speech, money to improve the safety of a playground is not. And IIRC, this playground may have been open to the public, but it belongs to a school, not church property. Not that it should make a difference if it is a church’s playground — if the funds are available to anyone and everyone that wants to make their playgrounds safer, churches cannot be excluded.

  • Okay. I get it. It is actually a declaration of equality with others regardless of religious belief or lack thereof.

    “In Everson v. Board of Education of Ewing, 330 U. S. 1
    (1947), for example, we upheld against an Establishment
    Clause challenge a New Jersey law enabling a local school
    district to reimburse parents for the public transportation
    costs of sending their children to public and private
    schools, including parochial schools. In the course of
    ruling that the Establishment Clause allowed New Jersey
    to extend that public benefit to all its citizens regardless of
    their religious belief, we explained that a State “cannot
    hamper its citizens in the free exercise of their own religion.
    Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists,
    Non-believers, Presbyterians, or the members of any
    other faith, because of their faith, or lack of it, from receiving
    the benefits of public welfare legislation.” Id., at 16. ”
    https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf

  • currently until this the us and state governments, only give aid and comfort to occult religious church institutions today. and is biased against all other, religious cult churches.
    sorry but that is not religious freedom, when they support only occult churches and not others. they, have even turned our public schools, into occult churches. the churches of occult homosexuality, get more favors than other churches today.
    the term is ‘separation of church and state’, not religion or ELOHEEM THEIR Son and state. it was meant to keep the government, from establishing any particular church as the religious standard for this nation.
    the very first government textbooks for churches, was bought and paid for by the congress and approved of by george washington. maybe you have heard of it, called the st james bible approved of by congress, the administration and the courts.

  • no such thing, as a lack of religious belief. whether you are religiously occult, cult, or a believer in ELOHEEM and/or THEIR Son. all human animal, are a religious critter in some way shape or form. which can be categorized as disbelievers*, pretend true believers, or actually true believers.

    and all diversity, is a true indicator for all this. which actually means we all, do not worship the same g-ds. the diversity in this world today, makes it painfully too obvious as to the worship of other g-ds.

    neither does, secular occultists, baptist, lutherans, catholics, jews, muslims, etc,, all worship the same g-ds or ELOHEEM and/or THEIR Son Truly. it’s all either fake, or distortion. where it is doubtful, there are even more than a handful of true believers left in this whole world today. where, the chances of being conned is too great.

    don’t care who you are, in this world today. either you have already been conned, and still being conned, or are in the process of someone trying to con you now. the whole world, has become a con-game. it is unlikely any one has at least, escaped all of the deception going on today.

  • Hmmm. I wonder what the willingness of the government to offer the GI bill and other helps to religious colleges means in reference to this? Is the precedent already established? I donno.

  • So, are you conned? If so, why should I accept your word on the matter? If not, how did you become so enlightened?

  • no! i am, not currently being conned any more. and you, can verify my life story in scripture. it,, even tells you that ELOHEEM came to visit with me. i, finally accepted what ELOHEEM came and said to me is all true and verifiable in scripture about me. so what i am telling you, all now is from ELOHEEM not me. ELOHEEM is THE ONE WHO, came to enlighten me. even if i, did not accept any of this right away. i, certainly did not get any of this from anyone in this world. there is quite a bit, written about THEIR Male Child in scripture.

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