James G. Blaine is largely unknown today. For two decades of the late nineteenth century, however, Blaine was possibly the most recognized and powerful political figure in the United States, serving as Speaker of the House, U.S. Senator, Secretary of State (twice), and three-time candidate for President. Although history has generally been unkind to Blaine, he’s best remembered for proposing a relatively insignificant measure (at least for Blaine): an amendment to the U.S. Constitution to prohibit the appropriation of any federal or state funds to religious institutions, including religious schools.
His proposed amendment narrowly failed to garner the necessary two-thirds vote in the Senate but, in the succeeding 35 years, 22 states adopted similar no-funding provisions in their respective state constitutions. In all, 38 state constitutions now contain clauses preventing public dollars from being disbursed to religious institutions or used for religious purposes. Detractors of these no-funding provisions trace a direct link between the failed Blaine Amendment and these state provisions, derisively calling them “Baby-Blaines.”
Last Tuesday, a narrow majority of the Supreme Court effectively gutted these state no-funding provisions. The case, Espinoza v. Montana Department of Revenue, involved a state tax credit that supported private schooling, including religious schooling. The Montana Supreme Court ruled that the tax credit violated the state constitution’s no funding of religion provision first adopted in 1888 and then re-adopted in 1972.
Reversing the Montana court, the U.S. Supreme Court held that the no-funding provision discriminated against parents and religious schools on the basis of their religious status in violation of the Free Exercise Clause. The holding means that state no-funding provisions can no longer serve as a bar to voucher programs, or possibly even money grants awarded directly to private religious schools. Secretary of Education Betsy DeVos—a private school advocate to put it mildly—praised the ruling as a “turning point in the sad and static history of American education.” As she continued: “Too many students have been discriminated against based on their faith and have been forced to stay in schools that don’t match their values.”
Central to Chief Justice Roberts’s majority opinion, and the concurrences of Justices Thomas and Alito, was a narrative that the various state no-funding provisions are relics of an anti-Catholic animus that originated in the nineteenth century during a time of heightened Protestant-Catholic conflict. As Chief Justice Roberts wrote:
“The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general;’ many of its state counterparts have a similarly ‘shameful pedigree.’”
Justice Alito’s concurring opinion was even less forgiving, documenting the long legacy of prejudice against Catholics in the United States and affixing that legacy on the Blaine Amendment’s effort to prohibit government funding of religious schooling.
By imposing the taint of religious discrimination on the Montana provision, the Court effectively transformed it and the 37 other state no-funding provisions into dead-letter law. Chief Justice Roberts stopped short of declaring the state no-funding provisions unconstitutional, but the effect is the same. As a result, state agencies and policy makers can no longer rely on those clauses to make distinctions between secular and religious entities when it comes to awarding financial grants or disbursing other financial resources.
Stepping back, this is a breathtaking holding; in one fell swoop, the Supreme Court effectively eviscerated provisions in 38 state constitutions without requiring evidence behind the enactment of each of those provisions. With respect to the Montana provision, the majority simply drew parallels and inferences from the debate surrounding the federal Blaine Amendment to condemn Montana’s no-funding provision. As the majority opinion declared without substantiating evidence, “many of the [state] no-aid provisions belong to a more checkered tradition shared with the Blaine Amendment of the 1870s.”
However, each state had its own dynamic; in Montana, for example, at the time the state adopted its no-aid provision Catholic adherents outnumbered Protestants by a 3-to-1 margin, and several of the state’s leading public officials were Catholic. The situations in other states also varied widely.
More broadly, the opinions in Espinoza raise questions about the Court’s use of history, particularly when it becomes a rule of constitutional law. History is “complex,” as Chief Justice Roberts acknowledged and Justice Breyer echoed, yet an adversarial legal forum is not the optimal place for settling the complexities of a historical event. The efforts of Catholic immigrants to find acceptance in nineteenth-century America have been documented, as has the resistance of Protestants who were suspicious of the commitment of a foreign-born Catholic hierarchy to American democratic values.
That this episode coincided with the development of American common schooling has only added complexity to the historical narrative. Proponents of common schooling sought to create an institution where children of various faiths could acquire a commitment to republican values, while ensuring the financial security of the fledgling public schools. Public school advocates were also concerned about ensuring public accountability and public control over school funds.
Funding a competing system of religious schooling—at the time, not solely Catholic but also Lutheran, Episcopal, Methodist, and Baptist schools, among others—would have stunted the development of public education, its advocates believed. Witnessing the rapid growth of Catholic immigration and its rising political influence in many cities, public education advocates also feared that funding religious schools would lead to religious competition and divisiveness.
Embracing some of those arguments, nativists then added a layer of anti-Catholic prejudice that was guaranteed to appeal to some, but not all, Protestant Americans, including those who faced economic dislocation resulting from the influx of immigrant workers. At the opposite end of the spectrum was a cohort of liberal Protestants and freethinkers who opposed funding of religious schooling on grounds it violated church-state separation and the rights of conscience of those who didn’t want their tax dollars to support religious beliefs with which they disagreed.
I could go on because there’s more to the story, but that’s precisely the point. This history is too complex to be decided in a judicial forum. In writing opinions, judges commonly draw on the information contained in the briefs of the parties and their supporting amici curiae. These briefs are written by lawyers (typically not historians) who advocate for particular outcomes and provide arguments and cherry pick data to support those results. This process is far removed from the enterprise of historical scholarship.
Not only is legal adjudication not the optimal forum for unpacking the nuances of history, but a judge’s interpretation of a historical event takes on a greater significance. By “declaring” the defining meaning of a particular historical episode—something that historians refrain from doing—that interpretation becomes a constitutional rule.
Whether the enactment of some or all of the 38 state no-funding provisions was motivated chiefly by anti-Catholic animus or not—and one can point to evidence that other considerations were behind the provisions—Tuesday’s ruling means that for constitutional purposes, they now were. That conclusion will now be embedded into constitutional law. As legal historian Charles Miller quipped a generation ago: “For certainty in the law a little bad history is not too high a price to pay.” And now, because of that bad history, there will be little restraint on those state legislatures that seek to lower the wall of church-state separation.
