In recent years a better understanding of American history has gradually moved the U.S. Supreme Court away from a strict separationist perspective on church and state and toward a greater accommodation of religion. In Agostini v. Felton (1997) and Mitchell v. Helms (2000), the majority of justices expanded possibilities for government aid to church-related schools. Then in Zelman v. Simmons-Harris (2002), the court approved the Cleveland voucher program, which allows poor students to use public money to pay for private and parochial school tuition. Voucher cases in other states, most notably Florida, have been less successful, because state courts have determined that such programs violated state constitutional prohibitions that are stricter than the First Amendment’s establishment clause. But the 19th-century history of such state provisions, commonly known as Blaine amendments, is instructive. As its recent rulings demonstrate, the Supreme Court has been reading that history.
In 1870, James Gillespie Blaine was 40 years old and a rising star in the Republican Party. After he served in the Maine Legislature, that state elected him to the U.S. House of Representatives, where he soon occupied the speaker’s chair. His political trajectory and that of his party had risen together. Down Pennsylvania Avenue in the White House sat his friend, Ulysses S. Grant, whom he hoped to succeed in office. In addition to the presidency, the Republicans controlled both houses of Congress and were now completing a Southern reconstruction policy designed to gather the newly emancipated and enfranchised African-Americans into the political fold of Abraham Lincoln.
The advancement of public schools represented a key element in that program as well as an important part of the Republican drive for cultural homogeneity in post-Civil War America. The schools would lift up Southern blacks and Americanize newly arrived immigrants, especially Irish and German Catholics. Following the program laid out by Horace Mann in the 1840’s, public education would inculcate a nondenominational Protestant morality through Bible reading, hymn singing and the use of the McGuffey readers. The result would be a law-abiding, hard-working, broadly based middle-class society that embodied the values of capitalism embedded in Republican ideology.
The Catholic Church, most notably in the person of Archbishop John Baptist Purcell of Cincinnati, resisted this vision of an essentially Protestant culture. Though a religious minority in that city, Catholics formed the largest single denomination, with 23 parishes. By 1870 Purcell’s Catholic school system enrolled 12,000 students in Cincinnati, in comparison with 19,000 attending public schools. The archbishop wanted his schools to share in the public school fund. The New York Legislature had recently passed a bill introduced by William Marcy Tweed, the Democratic boss of New York’s Tammany Hall, to provide public funds to private schools in the city and county of New York enrolling at least 200 students. Agitation existed for similar measures in places where Catholics were numerous. The New York law was soon repealed, and Purcell failed to get a share in the funds. But, confronted by the pervasively Protestant character of the public schools—the chief irritant to Catholics—a majority of the Cincinnati school board determined that Bible reading and other religious exercises should be discontinued. After a series of court battles, the Ohio Supreme Court ultimately upheld this decision.
Protestants committed to fostering a religiously based morality in the schools were outraged by the court’s action. In their view, Catholic immigrants who disagreed with this public policy should go home. By Protestant definition, Catholics owed allegiance to a foreign ruler in Rome, where the First Vatican Council had just upped the ante by proclaiming papal infallibility. Adherence to authoritarian, antidemocratic Romanism rendered Catholic claims of American loyalty dubious at best. Fallout from Cincinnati’s Bible war merged with the school-funding issue in New York and spread across the nation.
Perhaps the most extreme anti-Catholic reaction was the proposal in 1870 of an amendment to the U.S. Constitution proposed by Judge Elisha Hurlbut of New York, an expert in constitutional law. It would empower Congress to ban “any foreign hierarchical power...founded on principles or dogmas antagonistic to republican institutions.” Some read in Hurlbut’s proposal the opening salvo of an anti-Catholic, nationalistic campaign akin to Otto von Bismarck’s Kulturkampf, which was gathering steam in Germany. Moreover, the campaign to identify the United States as a Christian Protestant nation, which had begun during the Civil War, now revived with the efforts of Supreme Court Justice William Strong and the National Reform Association to amend the U.S. Constitution’s preamble to read: “Recognizing Almighty God as the source of all authority and power in civil government, and...the Lord Jesus Christ as the Governor among the nations, His revealed will as the supreme law of the land, in order to constitute a Christian government,” we the People, etc.
Although such proposals proved too extreme to rally widespread support in Congress, they showed the way to politicians anxious to distract voters from the financial mismanagement and gross scandals of the Grant administration. A Protestant minority, including such notable clergymen as Henry Ward Beecher, was willing to eliminate overtly Protestant religious exercises from the schools. But Beecher and his friends drew the line at public funding for Catholic schools. Where worried Protestants read signs of moral crisis and Catholic threat in the school fights, others saw political opportunity. School funding rather than school prayer became the defining issue. Constitutional amendment became the method. And political gain provided an important motivation.
A vigorous dose of anti-Catholicism always enlivened an otherwise dull speech. As the future President Rutherford B. Hayes informed Blaine in June 1875, the “school question” had rendered the state Republican convention “enthusiastic.” The party had “been losing strength in Ohio for several years by emigration of Republican farmers,” he explained. “In their place have come Catholic foreigners.... We shall crowd them on the school and other state issues.” Running on a blatantly anti-Catholic platform, Hayes narrowly captured the Ohio governorship that fall, despite the economic depression and the scandals enveloping the national Republican Party.
Grant seized the moment. In a speech in December 1875, the president proposed that Congress approve a constitutional amendment formally separating church and state, provide for the taxation of church property and forbid the states from allocating public funds to any schools that taught “sectarian tenets.” Sectarian meant Catholic. A week later Blaine offered his amendment on the floor of the House. It included the most popular of the Grant proposals. After extending the language of the First Amendment to the states, it provided that “no money raised by taxation in any state for the support of public schools, or derived from any public fund thereof, 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 sects or denominations.”
As the University of Chicago law professor Philip Hamburger has demonstrated in his superb study, Separation of Church and State (Harvard Univ. Press, 2002), Blaine’s proposal directly challenged Catholic efforts for school funding while leaving nondenominational Protestantism securely entrenched in public education. It was designed to secure the nomination for Blaine. Hayes’s victory in Ohio had made him an instant “reform” Republican candidate. Blaine’s friends were concerned. Apart from the school issue, Hayes had failed to excite the voters. One Republican politician urged that Blaine needed only to make “a good speech on the School question” to “cinch the nomination.” But Blaine’s Catholic cousin, Ellen Ewing Sherman was not so sure. She and her husband, the Civil War general William Tecumseh Sherman, wanted him in the White House, but Ellen Sherman warned that his proposals for “the State Constitutions and school laws” would hurt him “among our Irish friends and Catholics.”
Blaine lost anyway. Though he entered the Republican convention in June as the front-runner, allegations that he had accepted bribes from the Union Pacific Railroad fatally damaged his chances for the nomination; and the delegates eventually chose the squeaky clean Hayes, everyone’s second choice. They also recognized Hayes’s single successful issue in his Ohio campaign by incorporating Blaine’s amendment into their national platform. That August it almost passed Congress, winning 180 to 7 in the House of Representatives but failing to gain the necessary two-thirds majority in the Senate.
Iowa and Illinois, however, had already placed variants of the Blaine Amendment in their state constitutions, and Congress quickly mandated that all states admitted to the Union after 1876 must follow suit. Washington State, for example, incorporated the following proviso in its 1889 constitution: “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”
Earlier this year in Locke v. Davey, a 7-to-2 Supreme Court majority decided that the state of Washington could deny a scholarship to a student seeking a “devotional theology degree.” But the justices avoided directly ruling on the Blaine Amendment statement in Washington’s constitution. Instead they pointed out approvingly that the guidelines for the scholarship program permitted students to attend “pervasively religious” institutions and take courses in “devotional theology.”
Thirty-seven states have clauses modeled after the Blaine Amendment, and cases challenging such provisions are coming up in Michigan, South Dakota and elsewhere. A 19th-century concern has become a burning issue in 21st-century church-state jurisprudence. The question the U.S. Supreme Court will face is whether such provisions placed in state constitutions a century or more ago violate the religious liberty provided by the First Amendment.
As for Blaine, he finally received the long-desired Republican presidential nomination in 1884. His defeat in that year’s election has been attributed largely to a Republican charge, which he never made or endorsed, that the Democratic Party was one of “Rum, Romanism and Rebellion.” That attack galvanized the Democrats. Blaine later said he could never have condemned “that ancient faith in which my mother lived and died.” The son of a Catholic mother and Presbyterian father, he was raised as a Presbyterian. Among his cousins was a Jesuit priest, Thomas Sherman, son of the general. Given his relatives, Blaine may have hoped and expected, as some scholars assert, that the amendment he sponsored would not pass. Perhaps his anti-Catholicism had been “just politics” after all. Shortly after he lost the 1876 Republican nomination, Maine put Blaine in the Senate. The next month, when that body defeated his amendment by a two-vote margin, Senator Blaine was absent.