Eric Rassbach is Vice President and Senior Counsel at the Becket Fund for Religious Liberty. The opinions expressed here do not necessarily represent those of the Becket Fund or its clients.

In high-school history textbooks, Senator James G. Blaine’s claim to fame has long been the rhyme successfully deployed against his candidacy in the 1884 presidential election:

Blaine, Blaine, James G. Blaine, the continental liar from the State of Maine.

But Blaine was anything but a figure of fun. Indeed, Blaine’s most prominent contribution to American political history was to further a particularly ugly form of discrimination. It was Blaine who channeled much of the generally anti-immigrant and specifically anti-Catholic feeling prevalent in 19th-century American society into the state constitutional amendments that now bear his name: the Blaine Amendments.

The Blaine Amendments found in most state constitutions, including Montana’s, resulted from Blaine’s failed attempt to amend the United States Constitution. In the period following the Civil War, anti-immigrant sentiment, particularly against Irish Catholics, was running high. Many saw the newcomers as poor, uneducated and loyal to a foreign power — the pope. They were thus a threat to the American way of life. As a result, many Protestants wanted to ensure that Catholics had no influence in public institutions, particularly in the public schools.

At the height of this ferment in 1875, President Ulysses Grant gave a speech to the Society of the Army of the Tennessee, in which he stated that the state and federal governments should not “support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan or atheistical dogmas.” Then as now, “sectarian” was a pejorative word that meant a religious person or institution that was out of the mainstream and thus opposed to “true religion.” But in 19th-century America, it typically meant Catholics. And “dogmas” speaks for itself.

Having recently lost his role as speaker of the House, then-Representative Blaine immediately saw a chance to revive his presidential prospects by capitalizing on Grant’s speech. Blaine proposed an amendment to the U.S. Constitution forbidding any state from providing funding to a body “under the control of any religious sect.”

The proposed amendment immediately garnered broad support in Congress and was a major topic of discussion in the run-up to the 1876 election. In August 1876, the Blaine Amendment easily passed the Article V two-thirds threshold in the House, 180-7. But it failed to reach the necessary two-thirds supermajority in the Senate. Blaine Amendment proponents then moved their campaign to the states, where many versions of the federal Blaine Amendment were adopted, typically including the telltale word “sectarian.” And with strong majorities in favor of Blaine Amendment legislation, Congress was not done either. After 1876 it began requiring, as part of Enabling Acts for new states in the West, adoption of a Blaine Amendment in each new state’s constitution as a condition for admission to the union. Eventually over 30 states adopted Blaine Amendments in their state constitutions.

Montana was no different. As we detail in our amicus brief in Espinoza, the delegates to the 1889 Montana constitutional convention were motivated by both their own anti-Catholic animus and that of Congress. For example, New Hampshire Senator Henry Blair said that the 1889 Enabling Act was “completing the unfinished work of the failed Blaine Amendment.” And as the Espinoza petitioners detail in their opening brief in the Supreme Court, Montana was a stew of anti-Catholic prejudice at the time it became a state.

What does all this history mean for a court deciding Espinoza in 2020? The Supreme Court does not write on a blank precedential slate when it comes to the history of the Blaine Amendments. In Mitchell v. Helms, a plurality of the court declared that the Blaine Amendments were “born of bigotry.” Justice Stephen Breyer recognized the amendments’ anti-Catholic origins in Zelman v. Simmons-Harris. And in Locke v. Davey, a 7-2 majority noted the amendments’ discriminatory history. Moreover, just last term, Justice Clarence Thomas reiterated, in his concurring opinion in American Legion v. American Humanist Association, that “the ‘sectarian’ test ‘has a shameful pedigree’ that originated during the 1870s when Congress considered the Blaine Amendment.”

Having recognized the Blaine Amendments’ ugly history, the court should not hesitate to repudiate them categorically. Indeed, under Trinity Lutheran Church of Columbia v. Comer and other precedents it can do no other. As Trinity Lutheran put it, courts must impose strict scrutiny on “laws that target the religious for special disabilities.” And under the court’s recent free exercise clause decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a law enacted with “hostility” that is “inconsistent with the First Amendment’s guarantee” of neutrality toward religion “must be invalidated.” Under that standard, Blaine Amendments as a category are presumptively unconstitutional under the free exercise clause.

Some will quibble with the history, arguing that, for example, some politicians who promoted Blaine Amendments acted out of political motives rather than personal enmity toward Catholics. But context matters: Pretending that the Blaine Amendments were not deeply rooted in the widespread and fervent anti-Catholic prejudice of the day would be like pretending that Jim Crow laws randomly arose in the post-Reconstruction South. But as the Supreme Court recognized in Hunter v. Underwood, Jim Crow laws didn’t “just happen” – and the Blaine Amendments didn’t either. The anti-Catholic history of the Blaine Amendments cannot be whitewashed.

The leading post-Trinity Lutheran decision by a state supreme court has recognized that Blaine Amendments are no longer enforceable. In Moses v. Ruszkowski, the New Mexico Supreme Court had to decide, in a case that the Supreme Court remanded for reconsideration in light of Trinity Lutheran, whether the New Mexico Blaine Amendment could be enforced against a state textbook-lending program that benefited public schools and both secular and religious private schools. The New Mexico Supreme Court concluded that, contrary to its previous ruling, the state’s Blaine Amendment could not be used to invalidate a program that benefited both secular and religious entities. The court specifically explained that the anti-Catholic history of the Blaine Amendments meant that the constitutional provision could not be enforced to exclude religious people from equal participation in government programs. And if the New Mexico Supreme Court recognized that the Blaine Amendments’ anti-Catholic origins rendered them unenforceable under Trinity Lutheran, surely the United States Supreme Court can too.

That shows how the court should decide Espinoza. Because of their indelible anti-Catholic origins, Blaine Amendments are presumptively unconstitutional under the free exercise clause. The state constitutional provision enforced by the Montana Supreme Court is a Blaine Amendment, and there is no reason the presumption should not apply. Therefore, the Montana Blaine Amendment cannot be enforced to invalidate the scholarship program at issue in Espinoza.

Taking that approach would put an end to Blaine’s odious legacy. And perhaps the shade of Senator Blaine could finally find rest as simply the man in the political rhyme.

Posted in Espinoza v. Montana Department of Revenue, Featured, Symposium before oral argument in Espinoza v. Montana Department of Revenue

Recommended Citation: Eric Rassbach, Symposium: Anti-Catholic Blaine Amendments like Montana’s are presumptively unconstitutional, SCOTUSblog (Sep. 19, 2019, 11:42 AM), https://www.scotusblog.com/2019/09/symposium-anti-catholic-blaine-amendments-like-montanas-are-presumptively-unconstitutional/