An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns
DeForrest, Mark Edward, Harvard Journal of Law & Public Policy
"[I]t is one of the firmest convictions of our time that difference of creed should no longer be allowed to determine a difference of civic rights."
--Jacob Burckhart (1)
"Governments have not always been tolerant of religious activity, and hostility toward religion has taken many shapes and forms--economic, political, and sometimes harshly oppressive."
--Chief Justice Warren Burger (2)
I. INTRODUCTION II. WHAT IS THE BLAINE AMENDMENT? A. The National Blaine Amendment B. Blaine's Motivation C. The Common School Issue D. The Blaine Amendment in Congress E. The Adoption of Blaine Amendment Language in the States III. A SURVEY OF STATE BLAINE AMENDMENTS A. Less Restrictive Blaine Provision B. Moderate Blaine Provisions C. Most Restrictive Blaine Provisions 1. General Overview 2. Michigan's Unique Situation 3. Washington State's Blaine Jurisprudence D. Overall Impact of the Blaine Amendment IV. FIRST AMENDMENT OBJECTIONS TO BLAINE AMENDMENT LANGUAGE A. The First Amendment as a Limitation on State Blaine Provisions B. First Amendment Problems with State Blaine Language 1. Overview 2. Liberalism, Neutrality, and the Problem of Religious Profiling 3. Free Speech and Viewpoint Discrimination a. An Overview of Viewpoint Discrimination Doctrine b. Viewpoint Discrimination and Government Funding of Religious Groups c. Application of Viewpoint Discrimination Doctrine to State Blaine Provisions V. CONCLUSION
The issue of the legality of vouchers and other forms of state aid to private religious schools has taken on new life in the states. This renewed interest in state aid to religious schools has been motivated by the groundbreaking Supreme Court decision in Zelman v. Simmons-Harris to uphold an Ohio program that provides payments in the form of vouchers to parents who have children in failing public schools. (3) The state program allows parents to use those vouchers to pay for tuition for their children in private schools of either a secular or religious character. (4) Prior to the Court's ruling in Zelman, the legality of public vouchers for private education was hotly debated on the national stage. As Kent Greenawalt has noted, vouchers were a major issue in the 2000 election--an issue that was, in his words, "connected closely" to religion (5). While various public policy arguments were raised both for and against vouchers for private education, a primary issue of legal concern was whether such vouchers would pass federal constitutional muster. The Court's decision provides an affirmative answer to that question (6). However, while the Court's ruling in Zelman was noted prominently in the media, (7) the Court did not decisively resolve the issue of the legality of state governments' providing vouchers or other forms of aid to private school students or parents for the private education of their children (8). The Supreme Court's ruling was permissive in character, rather than imperative; it permits states, if they choose, to provide such vouchers, but they are not required to do so. (9) The Court's decision also does not mandate that parents have the option to use the tuition vouchers to send their children to private religious schools; it simply states that programs allowing parents to do so do not run afoul of the Establishment Clause of the First Amendment. (10) The Court's ruling, therefore, casts the issue of vouchers and other forms of aid to private religious schools back to the states, leaving it to state governments, in accord with the political will and the constitutions of those states, to decide whether vouchers or other forms of aid should be given to parents to pay tuition at private schools, whether secular or religious. (11)
The importance of state law in evaluating the overall legality of vouchers or other forms of aid for private religious schools should not be underestimated. …