Blaine Amendments Protect Religious Liberty, Prohibit Establishing Religion via School Vouchers

So-called Blaine Amendments in many of the state constitutions prohibit the diversion of taxpayer dollars to religious schools.  Over the weekend, The Hill published a commentary on the state Blaine Amendments by Robert G. Natelson , a retired professor of constitutional law and a fellow at the the far-right Heartland Institute. Natelson argues that the U.S. Supreme Court should overturn the Blaine Amendments in several state constitutions because they were created in an era of anti-Catholic bias and at a time when public schools reflected their Protestant beginnings.

Several times in the 1870s and 1880s, Speaker of the U.S. House of Representatives, James G. Blaine proposed a federal constitutional amendment to prohibit the expenditure of public dollars at religious schools.  While the amendment to the U.S. Constitution was never adopted, a number of the states passed so-called Blaine Amendments to their constitutions. In many those states today, the Blaine Amendment has been interpreted to mean that the state constitution prohibits the use of school vouchers in sectarian schools.

Diane Ravitch, the historian of education, responds to Natelson at the Huffington Post. She agrees with Natelson about the origin of the Blaine Amendments:, “Natelson is right that the public schools of the 19th century were deeply imbued with Protestant teachings and practices… The arrival of large numbers of Irish immigrants in the 1840s, mostly Catholic, concurred with the beginnings of public school systems in urban areas…. The Blaine Amendment appealed to anti-Catholic sentiment among the dominant Protestant majority….”

Ravitch explains, however, that public schools are no longer dominated by any religion, nor do they incorporate religious practices.  Courts, according to Ravitch, ought to consider the reality that today, public schools have shed religious practices, particularly since the 1962, U.S. Supreme Court decision in Engel v Vitale, that banned school prayer.  Today public schools are expected to protect the right of each child to worship according to the child’s or family’s religious beliefs and to protect the U.S. Constitutional ban on religious education.

There is widespread acceptance today in public schools and across U.S. religious bodies that the First Amendment protection of freedom of religion applies in schools operated in the public sphere by government. Here is the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  The first part of the First Amendment (referred to as the Establishment Clause) protects against the government’s in any way favoring—“establishing”— any particular religion, and the second clause guarantees residents of the United States the right to worship according to their own traditions.

Ravitch explains today’s reality that by law, students are protected from religious bias in their public schools:  “The motives of James G. Blaine or Catherine Beecher Stowe or Horace Mann or Henry Bernard or any of the other 19ht century founders of public schools are irrelevant today. They matter less than the reality and practices of public schools today that the Blaine Amendments permit and protect. Because of the states’ Blaine Amendments, public schools across the nation welcome children who are of every religion or no religion, whether Catholic, Protestant, Muslim, Jewish, Hindu, Buddhist, atheist, or any other belief.  To rule against the Blaine Amendments would open the door to subsidizing religious schools with public dollars.”  Many promoters of school vouchers, including Betsy DeVos, the U.S. Secretary of Education, want to eliminate the state-by-state Blaine Amendments as a way to ensure that school vouchers are permissible in every state.

Ravitch writes, “If the High Court reviews the state Blaine Amendments, I hope the Justices will recognize that the founders knowingly decided to avoid state entanglement with religious establishment… Our public schools are no longer the Protestant public schools that Bishop Hughes fought against. They are an integral part of our democratic society. They are a public good, like the services of police and firefighters, like public beaches, libraries, and parks.  Separation of church and state is a valuable principle that protects the church schools from government intervention and mandates. Religious liberty is best protected by keeping it separate from government dollars and government control.”

Today America’s major religious denominations have themselves strongly endorsed the First Amendment’s protection of religious freedom in the public schools. Ensuring that public schools do not “establish” or favor one set of religious beliefs over another means that parents will not have to worry that a school will teach religious beliefs contrary to the tradition of their family.

In 1995 the First Amendment Center convened a group of religious and educational leaders who endorsed a set of principles (Finding Common Ground, pp. 11-13)

1. “Religious liberty is an inalienable right of every person.
2. “Citizenship in a diverse society means living with our deepest differences and committing ourselves to work for public policies that are in the best interest of all individuals, families, communities and our nation.
3. “Public schools must model the democratic process and constitutional principles in the development of policies and curricula.
4. “Public schools may not inculcate nor inhibit religion. They must be places where religion and religious conviction are treated with fairness and respect.”

The religious organizations that subscribed to these principles were: the Catholic League for Religious and Civil Rights, the Central Conference of American Rabbis, the Christian Coalition, the Council on Islamic Education, the National Association of Evangelicals, the National Council of Churches of Christ, and the Union of American Hebrew Congregations.

Just last month The Christian Century editorialized supporting our nation’s public schools that serve children from many religions and opposing school vouchers. The Christian Century describes itself as a magazine that has, “For decades… informed and shaped progressive, mainline Christianity.” Its mission statement declares, “Committed to thinking critically and living faithfully, the magazine explores what it means to believe and live out the Christian faith in our time… (T)he Century is both loyal to the church and open to the world.”

In its recent editorial, The Christian Century affirms the role of public education and castigates vouchers, but the editorial focuses on the right of every child in our society to a quality public education.  The magazine does not assume any presence of religion in public schools but instead emphasizes the danger when meager public education dollars are used to privatize schools, whether or not they are religious: “(N)owhere is there demonstrative evidence that the mechanisms of market choice and privatization have improved education overall. Their downside, however, is quite clear: wherever charters and vouchers operate, they siphon money from the public school systems which are charged with educating every student, regardless of physical or mental ability, income, or parent involvement. The schools that have demonstrated real reform in recent years are ones that have focused over the long haul on the unglamorous tasks of setting high goals, finding and supporting excellent principals, continually supporting and training teachers, and staying connected to parents and community. Supporting public schools in that hard work is the best focus for government dollars.”

The Christian Century endorses justice for all children, whatever their families’ religious beliefs, in democratically owned and operated public schools designed to protect the rights and serve the needs of our nation’s 50 million students.

Update: Yesterday afternoon in the “Answer Sheet” column at the Washington Post, Valerie Strauss re-printed Diane Ravitch’s Huffington Post column and added an introduction about the timeliness of this issue. Strauss reports that the U.S. Supreme Court is soon scheduled to begin hearing a case, Trinity Lutheran Church of Columbia v. Pauley, which involves the constitutionality of Missouri’s Blaine Amendment.  Arguments are set to begin on April 19, and Strauss explains that, “the decision could determine the fate of Blaine Amendments across the country.”  Strauss adds another piece of important legal history, citing a quite recent U.S. Supreme Court decision that affirmed the Establishment Clause itself in relation to public education: “In the landmark 1947 Everson v. Board of Education of the Township of Ewing case, the Supreme court wrote that the Establishment Clause does create a ‘wall of separation’ between church and state, and that means that, at the very least, no ‘tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion.'”

It is very much worth reading Ravitch’s column here or reprinted in Valerie Strauss’s “Answer Sheet” column with Strauss’s introduction.