Floodgates are defined as the last restraint holding back an outpouring of something powerful or substantial.
This week the Supreme Court with its newest member Neil Gorsuch began hearing arguments in Trinity Lutheran Church v. Pauley. In a modern case wrestling the separation of church and state, Trinity Lutheran preschool wanted to use state reimbursement funds to resurface a playground, but the state of Missouri said no.
Turns out Missouri has a “no aid” provision that prevents public money from going to churches. This provision falls under the Blaine Amendments. Named after Speaker of the House James G. Blaine, the Blaine Amendments were enacted in 1875 to single out Roman Catholics for disfavored treatment.
In December 1875, President Ulysses S. Grant warned of “the dangers threatening us” and the “importance that all [men] should be possessed of education and intelligence,” lest “ignorant men . . . sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.” He recommended as “the primary step” a constitutional amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all of the children” and “prohibiting the granting of any school funds, or school taxes . . . for the benefit of or in aid . . . of any religious sect or denomination.”
Congress responded promptly. Within a week, Representative James Blaine, the powerful former Speaker of the House, introduced an amendment that would become known as “the Blaine Amendment,” which provided that “no money raised by taxation in any State for the support of public schools . . . shall ever be under the control of any religious sect.” In August 1876, the House of Representatives approved the bill with the necessary two-thirds vote. The proposal, however, received a majority but not a two-thirds vote in the Senate and failed.
The states reacted by adopting their own “Little Blaine Amendments.” Between 1840 and 1875, nineteen states adopted some form of constitutional restriction on sectarian institutions receiving state funds; by 1900, sixteen more states, plus the District of Columbia, had added such provisions.
Today 38 of 50 states have Blaine Amendments (New Jersey does not, neither does Arkansas, Maine, Connecticut, Maryland, Rhode Island, Tennessee, Vermont or West Virginia). Proposals to repeal the Blaine Amendments failed in New York (1967), Oregon (1972), Massachusetts (1986), Washington state (1975), and Alaska (1976).
Interestingly, but at this point really no surprise, in 2000 Michigan native Betsy DeVos and her husband spent $13 million supporting Proposal 1 – aka – The Michigan Vouchers and Teacher Testing Amendment, which would allow public funds to support religious vouchers as well as:
1) Eliminate ban on indirect support of students attending nonpublic schools through tuition vouchers, credits, tax benefits, exemptions or deductions, subsidies, grants or loans of public monies or property.
2) Allow students to use tuition vouchers to attend nonpublic schools in districts with a graduation rate under 2/3 in 1998-1999 and districts approving tuition vouchers through school board action or a public vote. Each voucher would be limited to ½ of state average per-pupil public school revenue.
3) Require teacher testing on academic subjects in public schools and in nonpublic schools redeeming tuition vouchers. (source) (source)
Proposal 1 failed in Michigan- 69% to 31%. Now DeVos is trying to do this on a national level. In 2012, 46% of voters endorsed a measure repealing Florida’s Blaine Amendment, but failed to receive the 60% margin required. Voters have also rejected proposals to repeal their state-level Blaine amendments in New York (1967), Michigan (1970), Oregon (1972), Washington state (1975), Alaska (1976), and Massachusetts (1986). (source)
In the Trinity case, Missouri argues that Locke v. Davey, a 2004 Supreme Court decision, allows it to exclude churches from state-funded programs, while Trinity Lutheran argues that excluding it from the recycled tire program because it is a church demonstrates hostility to religion.
In Trinity Lutheran, the Court will decide whether explicitly excluding religious options from public-aid programs violates the First Amendment’s free-exercise clause and the Fourteenth Amendment’s equal-protection clause. (source)
According to Valerie Strauss, of the Washington Post, “The Supreme Court has several options with the Trinity case. It could decide not to rule, or issue a narrow ruling that doesn’t directly affect the current interpretations of the Blaine Amendments, or hand down a broader ruling that declares them unconstitutional.”
The implications of a victory in the Supreme Court for Trinity Lutheran are frightening as this would fundamentally change the landscape of school choice — and support DeVos’ agenda and the Trump administration. This decision could open the floodgates, and Gorsuch could be the deciding vote.
These are my reflections for today.