Will Blaine’s Descendants Finally Be Disinherited?

In his magisterial Separation of Church and State (2002), Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. In the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments. Missouri did so in the same year that Blaine’s Amendment failed in the Senate.

In 2012, a preschool operated by Trinity Lutheran Church applied for a state grant to improve its playground. Of the 44 applications received that year, Trinity’s was ranked fifth on the basis of neutral criteria. The application was rejected solely because state officials concluded that awarding a grant to a preschool run by a religious organization would violate Missouri’s Blaine Amendment.

The Supreme Court agreed to hear this case (Trinity Lutheran Church of Columbia v. Comer) more than 15 months ago. Pundits have speculated that the justices delayed the case until Scalia’s replacement was confirmed in order to avoid a tie vote. However, if Wednesday’s oral argument is any indication, Justices Ginsburg and Sotomayor may well be the only fans of Missouri’s policy of discriminating against religious organizations.

Early in the oral arguments heard two days ago, Justice Ginsburg helpfully reinforced the claim that Everson v. Board of Education’s flawed history is to blame for the Court’s convoluted Establishment Clause jurisprudence. If, as she suggested, America’s founders desired an absolute ban on providing government funds to religious entities, the case should be an easy one. Everson’s historical arguments are bad enough, but Justice Ginsburg seems to have forgotten that the majority opinion in this case upheld a state program that reimbursed parents for the cost of transporting their children to schools—including parochial schools.

Interestingly, both sides in this dispute agreed that Missouri could provide a grant to upgrade a playground owned by a religious entity without violating the First Amendment’s Establishment Clause. This stipulation did not prevent Justices Sotomayor and Kagan from fretting about the possibility that someone might, on occasion, say a prayer on the premises.

Even if such a program does not violate the Establishment Clause, Justice Sotomayor apparently thinks that a prohibition on participation by religious organizations might be compelled by a long and noble tradition of Blaine Amendments. Several minutes after she made this suggestion, Justice Alito gracefully suggested to his fellow Catholic justice that these amendments may not, in fact, reflect “an admirable historical tradition that should be respected.”

Most of the justices seem to agree that the central issue in the case is whether a state can make a grant program available to all non-profit organizations except for religious ones. Attorneys for Trinity Lutheran ably contended that such a policy violates a host of constitutional provisions—most notably the Free Exercise Clause.

No one should be shocked that Justices Roberts, Thomas, Alito, Gorsuch, and even Kennedy are sympathetic to such claims. Far more surprising is that Justices Kagan and Breyer seem open to them as well. For instance, Justice Kagan observed that the state had created a competitive program open to non-profits but has “depriv[ed] one set of actors from being able to compete in the same way everybody else can compete because of their religious identification,” something she suggested moments later is a “clear burden on a constitutional right.”

Some readers of Law and Liberty may object that states shouldn’t make any grants such as the one in question. I am sympathetic to this view. However, we should all be able to agree that if a state creates a grant program and makes it available to almost every kind of non-profit organization, discriminating against religious ones should not be permitted. Certainly such discrimination should not be justified by outdated, anti-Catholic Blaine amendments.

[1] Technically, the state’s former policy of discrimination. Missouri’s current Governor announced last week that he is reversing a previous administration’s interpretation of the state’s Blaine amendment. Because of this change, there is a possibility that the justices will declare the case moot.

Reader Discussion

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on April 21, 2017 at 10:48:20 am

The Missouri provision at issue in Trinity Lutheran Church dates from the 1820s, long before the major influx of Roman Catholics and the Blaine Amendment. It is therefore NOT a "little Blaine amendment". Also, the Missouri provision forbids state aid to all churches and religious institutions, so even if it were a "little Blaine Amendment", it does not discriminate based on anti-Catholic animus--in fact, whatever the original motivation, most "little Blaine amendments" are similarly free of sectarian discrimination. Finally, the idea of preventing public funds going to religious institutions seems fundamental to the idea of non-establishment (see Madison's "Memorial and Remonstrance"), while the idea that refusing to fund religious institutions is a violation of free exercise seems to lack much historical basis.

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Alan Tarr
on April 21, 2017 at 15:53:35 pm

I post Petitioner's Brief to the Court, Discussion of Missouri's Constitutional Amendment in question in Trinity Lutheran case and its connection to the Blaine Amendments begins on p. 42. http://www.scotusblog.com/wp-content/uploads/2016/04/TrinityLutheranPetitionersBrief.pdf

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Image of Richard M. Reinsch II
Richard M. Reinsch II
on April 21, 2017 at 16:32:35 pm

I am aware of the 1820 predecessor of the 1875 amendment, and that the amendment was re-enacted in 1945. Given the re-enactment, one might argue that even if the 1875 amendment was motivated by anti-Catholic animus that it was "cleansed" in 1945. But of course anti-Catholic animus was alive and well in the 1940s, as evidenced in part by the formation of Protestants and Others United for Separation of Church and State in 1947. But perhaps it wasn't as prevalent in Missouri as elsewhere. If so, I am happy to be corrected. But I will note that virtually no post-Civil War anti-Catholic constitutional provision, law, or state policy specifically names its target. Again, I commend readers to Philip Hamburger's work on this subject.

I have argued extensively elsewhere, and am currently arguing in a series on this site, that Madison (and Jefferson) should not be treated as the only founders who matter with respect to religious liberty and church-state relations in the founding era (or in the abstract).

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Mark David Hall
on April 22, 2017 at 11:09:56 am

Nor should we assume that Jefferson spoke with "one mind" when discussing religious - government issues.

See for instance, Jeffersons Letter to the Ursuline Nuns.

While the 1820 Missouri provision may be said to predate the Blaine amendments, it cannot be said that it predates the traditional colonial / post-revolutionary animus towards *Popery* which continued into the start of the 20th Century.

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Image of gabe
on April 25, 2017 at 17:45:03 pm

I found it interesting that the Supreme Court spent so little time on the issues that seemed to matter most to the lower court. The federal appeals court ruled against Trinity on the grounds that they interpreted Trinity's claim as a facial challenge to the No Aid provision in the Missouri constitution. (I use "No Aid" in lieu of Blaine because the motivations for the constitutional provision are irrelevant.) Trinity, in its briefs to the Supreme Court refuted that interpretation and continued to assert an as-applied challenge.

As an as-applied suit, this is an Equal Protection case. In response to the title question, Blaine's progeny are unaffected.

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Image of Phil
on April 27, 2017 at 02:22:36 am

While Hamburger highlights that some who supported separation of church and state in the late 1800s harbored anti-Catholic sentiments, he also observes that separation of church and state was widely supported across nearly all segments of society. It is a bit much, thus, to now suppose that the Blaine amendments are but artifacts of anti-Catholic views. They may as well reflect that separation of church and state had by the late 1800s become a widely supported American value.

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Image of David Ivester
David Ivester
on January 29, 2020 at 06:02:06 am

[…] animus contributed significantly to the post-Civil War movement to separate church and state. As I have noted in this space, in the 19th century, this separation was usually between states and “sectarian” Catholic […]

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Can Blaine’s Descendants Block School Choice?

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.