Lawsuits attack provisions preventing states from directly funding religious and private schools, created against Catholics in the 19th century.
by Daniela Bovolenta
The Roman Catholic Bishop of Charleston, South Carolina, as head of a coalition representing 53 schools and universities, is prosecuting a federal lawsuit against the State of South Carolina after the State’s Supreme Court has prevented it from including religious and private schools in the distribution of funds allocated for COVID-19 relief. On May 11, the District Court refused to grant a preliminary injunction, but commented that, “The Plaintiffs have only begun to scratch the surface of what will no doubt be a well-litigated challenge to the no-aid provision on the merits.”
What the State Supreme Court is enforcing, and the Bishop’s coalition regards as unconstitutional, is the so-called “Blaine Amendment” included in 1895 in the Constitution of South Carolina, stating that, “No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”
The Bishop makes no mystery of his hope that the case will eventually reach the Supreme Court, and become a tool to overcome the “Blaine Amendments” that exist in 36 U.S. states.
James Gillespie Blaine was a prominent Republican politician, who barely lost the 1884 presidential election to Democrat Grover Cleveland, and served twice as Secretary of State under Presidents James A. Garfield and Benjamin Harrison. Even if Blaine’s own mother was Catholic, he became “the face of anti-Catholicism” in American late 19th-century politics, although it has been argued that his motivations were more political than religious.
Blaine introduced in 1875 a “Blaine Amendment” to the federal Constitution, which would have prevented public funding of religiously affiliated schools nationwide. The amendment passed in the House but was defeated in the Senate. Blaine then campaigned to introduce the so-called “baby Blaine Amendments” in state Constitutions. 39 states passed them, and 36 keep them to this very day. (Ironically, something similar to the Blaine Amendment is also part of the 1947 Italian Constitution currently in force).
Ruling to restrict the application of Louisiana’s Blaine Amendment, in 2000, the U.S. Supreme Court noted that in the 1870s the overwhelming majority of religiously affiliated schools were Catholic, and the introduction of the Blaine Amendments “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’”
While stating that granting a preliminary injunction “striking down a State constitutional provision that has existed in one form or another for 125 years” would raise “important concerns of federalism,” the District Court commented on May 11 that “the contemporaneous anti-immigrant, anti-Catholic campaign of U.S. Congressman James G. Blaine […] offend all well-reasoned standards of decency, tolerance, and fairness.”
So far, the U.S. Supreme Court has limited the scope of the Blaine Amendments, but has stopped short of declaring them simply unconstitutional. However, this may change, not only because of the present composition of the Supreme Court, but also because federal judges are increasingly aware that in several states the Blaine Amendments, by targeting not only “religious” but also “any other private educational institutions” were also aimed at de-funding schools and universities organized by African Americans to avoid the racism prevailing in white-dominated institutions. It is not coincidental that historical African American schools and universities are part of the coalition represented by the Bishop of Charleston.