On Wednesday, April 19th, the United States Supreme Court heard a long-awaited oral argument about whether Missouri’s “Blaine Amendment” – i.e., a state law that prohibits public funds from being distributed to private, religious schools – violates the U.S. Constitution.
The case is titled Trinity Lutheran v. Comer, and its outcome could have dramatic effects for religious freedom across the country – including right here in Nebraska.
Blaine Amendments exist in no fewer than 37 states and are named for Congressman James Blaine, who proposed a similar law to the U.S. Congress in 1875 as an amendment to the Constitution. The law passed in a landslide in the House of Representatives, but fell just a few votes short in the Senate. Congressman Blaine then turned his attention to the states.
Dozens upon dozens of states soon thereafter adopted the provision into their own constitutions – including Nebraska. In original form, Blaine Amendments prohibit the distribution of public funds “in aid of” any “sectarian” institution, including private, religious schools.
In recent years, the U.S. Supreme Court has called out these Blaine Amendments as rooted in anti-Catholic bigotry of the late 19th Century. In the case of Mitchell v. Helms, 530 U.S. 793 (2000), a four-Justice plurality led by Justice Thomas described the Blaine Amendment’s sordid history and called on the Court to strike down these laws at the next available opportunity.
After nearly 20 years, that opportunity has finally arrived.
The issue is whether government can discriminate against religious organizations – including Catholic and faith-based schools – simply because they are religious. Even the Court’s restrictive understanding of the so-called “separation of church and state” has never required as much. There is a significant difference between excessive state entanglement with religion itself, and benign state aid that merely assists a religious school in its contribution to the common good.
In Trinity Lutheran, a daycare school run by a Lutheran church applied for a state grant to purchase recycled tire scraps to underlay the surface of its playground. The application was ranked 4th out of more than 40 submissions. However, due to the daycare’s religious affiliation, the state Department of Natural Resources determined that the Missouri Blaine Amendment banned the application.
The daycare’s appeal has now reached the Supreme Court. If the daycare prevails, Blaine Amendments throughout the country would likely fall – including in Nebraska.
Nebraska’s Blaine Amendment can be found in Neb. Const. Art. VII, Sec. 11. This section was amended in 1972 to eliminate any reference to “sectarian” schools. It also eliminated the prohibition on any appropriation “in aid of” religious schools (that is, the prohibition on even indirect aid).
Now Nebraska’s Blaine Amendment simply prohibits the distribution of public funds directly “to” all non-public schools. Thus, indirect aid is now allowed, such as a voucher to a parent who happens to choose a Catholic school for her child.
However, the Supreme Court has ruled that a law discriminatory in its origins is not necessarily cured by later changes in wording. And there is no doubt that Nebraska’s Blaine Amendment was discriminatory in its origins and still has similar effects today: it prohibits private, religious schools – including Catholic schools – from directly receiving many non-religious benefits via the public fisc, despite the tremendous contribution these schools provide to the public good.
Thus, the outcome in Trinity Lutheran could be a game-changer for religious freedom in Nebraska. The Nebraska Catholic Conference will be watching closely, and will be sure to keep you and the public informed. Check back soon for updates.
Posted on Wed, April 19, 2017
by Tom Venzor