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Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations

The Impact of Catholic Immigration and the Blaine Amendments

In Bradfield v. Roberts (1899), the first of its two pre-Everson Establishment Clause cases, the high court upheld the federal government’s funding of a religiously owned and operated hospital because, the court reasoned, the hospital’s primary function was to provide secular care and treatment. Similarly, in Quick Bear v. Leupp (1908), the high court upheld federal funding of a Catholic school that served a Sioux reservation in South Dakota. The court determined that the funding was constitutional because the government supported the school with money derived from a Sioux trust fund. According to the court, the Establishment Clause did not limit how the government used funds belonging to the American Indian tribes, which were sovereign groups and legally independent of the United States. Rather, the court explained, the clause applied only to how the federal government used taxpayer dollars.

Bradfield v. Roberts (1899)

Peckham Brown
Fuller Shiras
Harlan White
Gray McKenna

Although federal courts rarely heard Establishment Clause cases during this time, disputes over religion and funding were relatively common in the states, primarily as a result of the spread of public education in the 19th century and the dramatic increase in Catholic immigration between 1800 and 1850. Specifically, some Catholics were troubled that the public schools’ reading material included the King James version of the Bible, which was favored by Protestants; most public schools at the time did not allow Catholic students to read the Catholic version of the Bible in class. This practice led Catholics to establish their own private, parochial school systems. To block these Catholic schools from receiving government financial aid, Protestants opposed to Catholic immigration amended many state constitutions to prohibit all public funding of religious schools.

The tension between Protestants and Catholics rose to national political prominence in the 1870s when Republicans accused Democrats of being the party of “rum, Romanism and rebellion.” In December 1875, Republican President Ulysses S. Grant, while considering a run for a third term, expressed support for a federal constitutional amendment that would forbid public financial support of “sectarian” schools – a word widely understood at the time to mean Catholic.

Soon after, U.S. House Speaker James Blaine, who also sought the 1876 Republican presidential nomination, proposed a similar amendment prohibiting states from funding religious schools. Though Blaine’s proposed amendment was approved by the House of Representatives, it fell four votes short of passage in the Senate and never became part of the U.S. Constitution. The Senate’s rejection of Blaine’s proposed amendment prompted all but 11 states to add similar amendments to their constitutions. Today, 37 of these state constitutional provisions remain in place and are known collectively as Blaine Amendments.

The various Blaine Amendments differ in scope. While some specifically forbid funding of religious schools, others more broadly forbid funding of all religious groups and institutions. Although most state supreme courts have construed their Blaine Amendments narrowly to permit some state funding of religious institutions, some state courts have interpreted their amendments broadly to place strict limitations on such funding. For example, after the U.S. Supreme Court unanimously ruled in Witters v. Washington Department of Services for the Blind (1986) that the Establishment Clause permitted a student at a religious college to use state vocational training funds to pursue a career in the Christian ministry, the Washington Supreme Court held that the state’s Blaine Amendment prohibited this use of state funding. Similarly, after the U.S. Supreme Court in Zelman v. Simmons-Harris (2002) upheld a Cleveland, Ohio, program that provided vouchers to low-income parents who chose to send their children to eligible private schools, including religious schools, a Florida court held that a similar voucher program in Florida violated that state’s Blaine Amendment. Some legal scholars have argued that Blaine Amendments violate the Free Exercise Clause – the other religion clause in the First Amendment to the U.S. Constitution – which protects people’s ability to “freely exercise” their religion. Many of these scholars contend that the creation of Blaine Amendments stemmed from animus toward Catholics and that the Free Exercise Clause forbids laws targeting particular faith traditions. Scholars also argue that Blaine Amendments violate the Free Exercise Clause because they specifically exclude religious groups from participating in programs receiving public funds and thus intentionally disadvantage religious organizations.

To date, however, no court has accepted the proposition that a Blaine Amendment violates the U.S. Constitution. Indeed, in Locke v. Davey (2004) the U.S.Supreme Court weakened such claims. The case involved a Washington state policy of not giving state scholarships to students who wished to use the funds to pursue a theology degree at a religious school. The high court, by a 7-2 vote, found that even though this exclusion discriminated on the basis of religion, it did not violate the Free Exercise Clause because, the court held, states may choose to enforce more separation between church and state than the Establishment Clause requires. Some scholars believe that the decision in Locke applies only in the special context of using public funds to train members of the clergy. But others contend that the decision should be read more broadly as granting each state the discretion to fund secular groups without funding their religious counterparts.

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