The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application

Abstract

Governments aid religious organizations in a wide variety of ways. For example, governments provide vouchers that students can use to attend private schools, support religious organizations that provide social services to the needy, and provide funding to ensure that religious houses of worship are safe from attack by terrorists and accessible to the handicapped. All of these programs, and many more, are permissible under the Establishment Clause of the Federal Constitution. The Establishment Clause requires only that government programs have a predominant secular purpose and do not improperly advance religion.

But many of these programs have been struck down under state “Blaine Amendments.” Written during the 1800s in a period of tremendous religious strife, Blaine Amendments appear in forty state constitutions. Although their scope and phraseology varies widely, they generally impose a per se bar against government funding to a “religious sect or denomination” or for any “sectarian” purpose. Some apply only in the context of education, barring all funding to religious schools even if the funding has a secular purpose and is provided on a religion-neutral basis. Many impose a bar against all funding to religious and faith-based organizations, again regardless of the secular purpose for the proposed arrangement. And despite the growing chorus of scholars who question their constitutionality, the Blaine Amendments are very much a part of the contemporary legal fabric.

This article explores the important role that the Blaine Amendments play in deciding modern church-state legal questions.

Keywords: Blaine Amendment, Establishment Clause, voucher, school choice, church-state

JEL Classification: K39, K3