Which states have blaine amendments

This anti-Catholic bigotry metastasized after the Civil War and, in September , President Grant himself a former Know Nothing delivered a widely publicized speech warning of a new civil war based not on race, but on religion. Grant pressed Congress to adopt a constitutional amendment to prohibit public funding of so-called sectarian schools. Blaine, then a member of the U.

House of Representatives, took up the charge: Within days, he introduced an amendment to the U. Constitution to do just what Grant had urged. Despite their narrow defeat in the Senate, the backers of the Blaine Amendment succeeded over the next quarter century in promoting their anti-Catholic agenda by requiring that some newly formed states include Blaine Amendment language in their state constitutions as a condition for admission to the Union.

Today, the constitution of every western state has a Blaine Amendment in it, as do the constitutions of approximately half of the states east of Mississippi. Since the modern educational choice movement began in Milwaukee in , opponents of choice have sought to halt parental choice programs by invoking state constitutional provisions, like Blaine Amendments.

School choice opponents have always preferred to challenge school choice programs on state constitutional grounds because it is harder for those who defend educational choice programs, like the Institute for Justice, to obtain U. Supreme Court review of such decisions. Typically, the U. An exception to that rule, however, is when an interpretation of a state constitutional provision or state law would deprive an individual of a right protected by the federal Constitution.

When lawsuits challenging school choice programs are filed, IJ seeks to intervene in the cases on behalf of families who want to participate in the programs. In so doing, IJ defends the programs alongside the government. IJ defends school choice programs because it is critical that courts hear directly from parents and students themselves—the beneficiaries of school choice—rather than from the government alone.

Supreme Court, in Zelman v. Simmons-Harris , U. In Zelman , school choice opponents argued that because participating students could choose to attend religious schools, the programs violated the Establishment Clause of the U. Montana remains free to deny state assistance to all private schools alike.

But it cannot do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way.

Justice Alito discusses the relevant history in some detail in his concurring opinion. Normally, this kind of bigoted motivation would be enough to strike down a government policy, even if it was ostensibly neutral on its face.

Here, the issue of motivation is not crucial, because the Blaine Amendment does in fact discriminate on the basis of religion on its face. It explicitly discriminates against religious schools, relative to secular ones. However, I also agree with the argument that the bigoted motivation behind the law provides an independent basis for striking down Blaine Amendments. If the enactment of a seemingly neutral law or policy is motivated by unconstitutional discrimination on the basis of religion or some other forbidden criterion , it should be invalidated unless the government provides strong evidence that it would have enacted the same law or policy even in the absence of unconstitutional motives.

I have defended this principle in other contexts , such as the Trump travel ban case , and it applies here too. It is unfortunate that both liberal and conservative justices seem to apply it inconsistently, depending on whose ox is being gored in the particular case at hand. In the case of Montana, this is is admittedly complicated by the fact that the Blaine Amendment was reenacted in , as part of the process of drafting a new state constitution.

The framers arguably did not have the same bigoted motives as those who enacted the version. I cannot fully do justice to this complicated issue in a blog post that is already too long.

In this case, such a standard will be difficult to meet, because the Amendment discriminates on the basis of religion on its face. Thus, the motives for reenactment necessarily involve some form of discriminatory hostility towards religious institutions, even if no longer focused primarily on Catholics.

In his opinion, Alito makes some additional points on why the reenactment remained tainted by unconstitutional motives. He also correctly points out that the reenactment issue does not arise in the case of the many states that still have Blaine Amendments dating back to the original 19th century Blaine movement, and not reenacted since. It is enough that the Montana provision discriminates against religious institutions on its face.

While I am happy about the result of this decision, I am troubled, though not surprised, by the 5—4 division along ideological lines, which replicates the one that happened in the travel ban case with the exception of Justice Kennedy, who has since retired from the Court.

The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination. Live Now. Cato at Liberty. Blog Home RSS.

James G. Blaine was a Republican congressman from Maine who sponsored the original proposed Blaine Amendment to the U. When that proposal failed by the narrowest of margins in the U. Senate, the banner was taken up in states — including South Carolina — to add similar provisions to their state constitutions. While the United States has had the same federal constitution since , the State of South Carolina has gone through a number of constitutional revisions.