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How The Supreme Court’s Trinity Lutheran Decision Could Affect Anti-Religious Laws

Will a dispute over tire scraps wind up scrapping anti-Catholic laws in 37 states?


In 2012, Trinity Lutheran Preschool ranked fifth out of 44 applicants to a Missouri program that recycles old tires for new playground surfaces. Yet Missouri refused to let the school compete for the grant, pointing to the state’s Blaine Amendment—a provision that bans tax money from funding a church in any way—as the reason.

The U.S. Supreme Court resolved the issue today in a decision that could hold important implications for future religious liberty decisions. The court held that Missouri engaged in religious discrimination and that its Blaine Amendment was not a valid reason to deny a religious school a neutral benefit.

Certainly, this decision will provide a new lens through which we can re-examine Blaine amendments. These provisions appear in 37 state constitutions, and all read roughly the same way—no state money is allowed to fund a sectarian school. Although they are portrayed as attempts to draw the line between church and state, their history is suspect.

Banning Money Was Motivated by Discrimination

Understanding Blaine amendments starts by turning back the clock 150 years. Steven K. Green recounts in his book “The Second Disestablishment” that Protestantism dominated nineteenth-century American life. Bible readings, hymn singing, and daily prayer were standard practice in most public schools. Rarely did the public question these traditions because most people viewed public schools as an appropriate setting for teaching morality and virtue.

By 1875, however, lawmakers feared an increasing Catholic minority. Most Catholics were immigrants, reinforcing xenophobia in American politicians and heightening the mistrust of a foreign church. The Catholic newcomers found resistance when they challenged the Protestant activities in public schools, leading them to form their own parochial schools.

Trying to curb the influence of these new institutions, Rep. James G. Blaine (R-Maine) proposed an amendment to the U.S. Constitution that would block any state funds from supporting a sectarian school. On the outside, the amendment merely reaffirmed Thomas Jefferson’s “wall of separation” between sectarian groups and the state, but as Justice Clarence Thomas points out, “it was an open secret that ‘sectarian’ was code for ‘Catholic.’”

Although the amendment failed in Congress, its spirit lived on in the states. So pervasive was the push for a pure separation of church and state—and for gaining political ground on an anti-Catholic platform—that adopting Blaine amendments was eventually a requirement for any territory vying for statehood, explaining why nearly every state west of the Mississippi has a Blaine amendment in its constitution.

Only One Religion Can Dominate Public Schools

Thus, majority-driven religious practices persisted in public schools while the state cut off support to explicitly Catholic institutions. Over time, of course, the tensions between religious sects have cooled in tandem with the slow elimination of Protestant practices in the classroom. But what’s left in the wake of this disestablishment is constitutional language largely applicable to a former era.

This raises several questions: Are Blaine amendments really needed to prevent state sponsorship of religion, or do they muddy the waters of our constitutional freedoms? What we see in the court’s recent decision resonates with the latter. No doubt, we need to honor the mandate to “make no law respecting the establishment of religion,” but we must also balance that with our right to the free exercise of our religious consciences and to protect religious people and organizations from being unfairly targeted for official disfavor.

If consistent and equitable treatment for religious people is the goal, a huge step forward would be to simply repeal Blaine amendments from state constitutions. Although historically difficult, repealing isn’t unprecedented: In 1974, Louisiana approved a new constitution that removed its 1921 Blaine Amendment.

And what about the 13 states without Blaine amendments on the books? Clearly, they already navigate well the landscape of church and state without the added provision. Perhaps it’s time for the rest of the country to join them.