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New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

New Research Finds Most State Constitutional “Blaine Amendments” Facially Unconstitutional

My newly published research finds that state constitutional bans on aid to “sectarian” institutions are facially unconstitutional.

The bans have long been controversial, because some courts use them to void school choice programs that include religious schools. Opponents of those provisions—sometimes called “Blaine Amendments” after 19th century political figure James G. Blaine—typically claim they violate the Religion Clauses of the First Amendment because they were designed to discriminate against Catholic institutions. Defenders argue, however, that they apply to all religions, and serve to maintain a necessary wall of separation between church and state.

The new findings demonstrate that bans on “sectarian” aid were not merely designed to discriminate against all religions, or against only Catholics. Rather they were designed to require state officials to discriminate in favor of mainstream Protestantism and against any faiths they deemed “bigoted” or “extreme.” In fact, they probably shouldn’t even be called “Blaine amendments” because they went well beyond Blaine’s less-discriminatory proposal for amending the U.S. Constitution.

The plain meaning of 19th century bans on “sectarian” aid thus renders them facially unconstitutional.

The article was published in the Federalist Society Review, and can be accessed here.

It was made possible by funding from the Education Policy Center at the Independence Institute.