Constitution Check: Are the states’ “Blaine Amendments” on shaky ground?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a case accepted by the Supreme Court related to state tax funds and religious institutions.

THE STATEMENT AT ISSUE:

“At least three states – Nevada, Colorado and Missouri – are currently confronted with litigation that raises questions about the limits that the U.S. Constitution imposes on state constitutions’

Blaine or No-Aid provisions.  State and lower federal courts are deeply split on those limits, and states frequently find themselves as defendants on both sides of the question….Justices of the Supreme Court have recognized that state Blaine amendments ‘arose at a time of pervasive hostility to Catholics and constitutionalized an idea born of bigotry.’

 – Excerpt from a legal brief filed in the U.S. Supreme Court, urging the Justices to clear up the conflict among lower courts on the continuing validity of state provisions imposing flat bans on financial aid to religious institutions, such as churches, synagogues and mosques.  On January 15, the Court agreed to review that issue in a case from Missouri.

WE CHECKED THE CONSTITUTON, AND….

Among the proposed changes that never made it into the Constitution was the “Blaine Amendment,” proposed by a member of Congress from Maine in 1875 at the suggestion of President Ulysses S. Grant.  The key language was this: “No money raised by taxation in any state for the support of public schools, or derived from any fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sect or denominations.”

Historians have more or less accepted that Representative James G. Blaine’s sponsorship of the measure cost him many votes of Irish Catholics in the 1884 presidential election when, as the Republican nominee, he refused to repudiate a pastor’s denunciation of the Democrats as “the party of rum, Romanism and rebellion.”  Blaine lost.

But state versions of that proposal have fared much better.  At one time, all but 11 states had their own “Blaine amendments,” and some of them swept more broadly than others.  Today, such amendments remain in force in 35 states.

In the past, the Supreme Court has made clear that states are free to relax those bans, and are even free constitutionally to provide some forms of neutral aid that winds up in the budgets of religious institutions – especially when the aid is channeled according to the wishes of parents and children.

But, despite the existence of such bans for more than 140 years, the Supreme Court has never answered one key question about them: Does the First Amendment’s guarantee of the “free exercise of religion” actually require states to provide aid to religious institutions, if the aid has nothing to do with promoting religious beliefs or practices?

At last, the Justices have agreed to answer that question.  They have a few cases on their current docket that raise the issue, but last Friday they chose for review the one that deals with a form of state aid that seems to have nothing, or next to nothing, to do with religion.

Missouri, the state involved in the case of Trinity Lutheran Church of Columbia v. Pauley, has a program of turning used tires into rubber surfacing material for playgrounds.  It invites applications for the material, and selects those who will receive the aid, because of the limits of its supply.  The cost of recycling of the tires is paid for by a fee imposed on the sale of new tires, so state funds are involved in the scheme.

The Trinity congregation runs a daycare center for children, and it has a playground used by the pupils as well as by neighbors in its Columbia community.  Its playground is currently surfaced with “pea gravel,” which can be abrasive for the children’s skin as they play about.

It applied for a grant, and was ranked fifth among 44 applicants.  However, it was turned down by state officials, explicitly because of the Missouri constitution’s “Blaine Amendment,” first adopted in 1875.

The amendment still reads in part: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination or religion”

Last May, the U.S. Court of Appeals for the Eighth Circuit relied upon that clause in turning aside Trinity Lutheran’s federal constitutional challenge to the denial of this aid.   The three-judge Circuit Court panel split 2 to 1 in its ruling.

The majority commented that the church was seeking “an unprecedented ruling – that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church.”   The full Eighth Circuit Court of 10 judges split 5 to 5 in refusing to reconsider the panel ruling.

The church then took the case on to the Supreme Court, arguing that “no public benefit could be further removed from the state’s anti-establishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose.”   Its appeal raised both the Free Exercise Clause and equal protection arguments against Missouri officials, noting that lower courts are split 3 to 2 on those questions.

Noting that the state “Blaine Amendment” originated in Missouri in 1875, the church reminded the Justices that its adoption occurred at “the same time as the federal Blaine Amendment was prepared and debated.  It thus shares the same grounding in hostility to the Catholic Church and to Catholics in general.”

By adding that case to its docket for a decision that is likely during the current term, the Justices have immersed themselves even more deeply in the abiding controversy over church-state relations.  Already under review is the latest challenge to the Affordable Care Act, or Obamacare, in a handful of cases raised by religious non-profit institutions that do not want any role in the ACA’s provision of free contraceptive devices and counseling to women employees and students of those institutions.

Like the ACA case, the Missouri church’s appeal is likely to attract a long list of friend-of-the-court legal briefs, broadening the importance of the Justices’ review of a truly fundamental constitutional debate.