May a state government run a lottery with the proviso that the winner may not donate the prize to any institution that trains students to become ministers of religion? This question is not yet before the U.S. Supreme Court. But a somewhat similar situation is presented in a case that the court has agreed to hear next fall. In 1999 the State of Washington enacted a partial college scholarship program: $1,125 in freshman year and $1,250 in the second year. There are three basic criteria: graduating in the top 10 percent of the high school class, having a low-to-middle family income and being accepted at an accredited college in the State of Washington.
Joshua Davey satisfied these criteria in 1999, but the accredited college in which Joshua enrolled is affiliated with the Assembly of God, and the major he chose prepares students to become ministers of religion.
In accordance with the scholarship statute, Washington denied Joshua a scholarship because of his choice of the pastoral ministry major. Washington based this statutory restriction on a provision in the state constitution that forbids any public financial assistance for sectarian education. Thirty-seven states have some form of this prohibition in their constitutions, and some states have interpreted the prohibition very strictly—even to the point of forbidding publicly funded transportation for children attending church-related schools.
These provisions are commonly known as “Blaine amendments.” In 1875 Representative James G. Blaine, then speaker of the House, urged Congress to propose adoption of this restriction as an amendment to the federal Constitution. He won overwhelming support in the House but lost by four votes in the Senate. For many years thereafter, however, Congress required new states to include a similar restriction in their constitutions. Some states, like Massachusetts, had the provision in their constitutions even before the Civil War.
The Blaine amendments stand as a major legal obstacle to the adoption of voucher programs at the elementary and secondary level in many states. The amendments, however, are under systematic and sophisticated legal attack in many states. Two of the most important organizations deeply involved in this litigation are the American Center for Law and Justice and the Becket Fund. (For more information see their Web sites: www.aclj.org, www.becketfund.org and www.blaineamendments.org.)
After Washington refused Mr. Davey a scholarship, he stayed in his chosen major and sued in federal court. He lost at the trial level, but won on appeal in the Ninth Circuit by a vote of two to one. The majority argued that the Supreme Court has repeatedly held that any religious discrimination has to be justified by proof that the discrimination is necessary in order to achieve a compelling public interest. Washington’s discrimination did not satisfy that exacting standard. The dissenting judge argued that the government may choose to provide scholarships for some subjects without providing them for all subjects, and that Joshua Davey had not been hurt by the discrimination. He has graduated from his chosen college in his chosen major and will start attending Harvard Law School next fall.
If the U.S. Supreme Court holds Washington’s version of the Blaine Amendment unconstitutional at the college and postgraduate level, the odds improve that the court will also hold—at some point in the future—that the federal Constitution forbids the states to use the Blaine amendments to restrict the use of scholarships at any level. The key points are the same: If a private individual decides where the state funding goes and there are secular alternatives to the religious option, the government has not violated the prohibition against government funding of core religious activities. And, consistent with the free exercise and free speech clauses, the government cannot forbid a private individual to use a governmental subsidy at a faith-based organization—educational or otherwise.
The deeper question, however, is whether Blaine amendments should be retained in state constitutions today. The restrictions were adopted more than a century ago to deal with what many Americans then perceived as a threat from Catholic immigrants and papal authority. Today, the threat is altogether different. Our nation needs experts in the religions of the world—not to proselytize, but to negotiate and accommodate. And the widespread use of chaplains by the federal government and the states in legislatures, the military, prisons and hospitals demonstrates the secular importance of the availability of religious services to those who want them.