by Hon. Glenn Cordelli
In part one, A Landmark Supreme Court Decision Relating to School Choice and Education Freedom – I discussed several U.S. Supreme Court cases leading up to the recent Espinoza v Montana Department of Revenue.
The decision in this case was that parents could not be barred from using a publicly funded scholarship to attend a religious school. The issue was a provision in the Montana Constitution called a “no aid” or “Blaine Amendment”. Why is this important to us in New Hampshire?
Well, New Hampshire is one of the 38 states with a Blaine amendment. So let’s take a look at the history of these amendments.
In the 1800s, the “common school” concept was started by Horace Mann in Massachusetts with the thought in order for a civil society there needed to be a civil and religious education for all. Since our nation was primarily a Protestant nation, the schools were no different. Religion and reading from Bibles were part of the common school education.
But then problems arose with the immigration of Catholics from several countries but primarily from Ireland to escape the potato famine. These immigrants arrived here and found that their children were being taught religious concepts contrary to their own. This led to discrimination and violence.
In Philadelphia, there were riots over which version of the Bible was to be used in schools. In Maine, a Catholic church was burned and a priest tarred and feathered. These were not isolated incidents.
In 1871, the accompanying cartoon was published in Harper’s Weekly and captured the mood of the nation I believe. It showed crocodiles representing Catholic priests approaching the shore where a minister or teacher is protecting students.
As these non-Protestant groups began to form their own schools, there was a backlash. The establishment Protestant groups did not want these “sects,” like the Catholics, (which gave rise to the term “sectarian”) to have access to public funds for education.
School funding rather than school prayer and Bibles became an issue, and a political issue. In 1875, President Ulysses S. Grant gave a speech calling for a Constitutional amendment to forbid states from providing public funds to any school that taught “sectarian (aka Catholic) tenants.”
James Blaine of Maine was the Speaker of the U.S. House of Representatives and a friend of President Grant. Speaker Blaine envisioned himself to be the successor to President Grant. Soon after the Grant speech, Blaine introduced a Constitutional amendment providing that no state raised tax funds to be provided to any religious sect. That amendment passed the U.S. House but fell just short of the necessary two-thirds votes in the Senate. But the anti-Catholic movement did not end there. States began adopting their own Blaine type amendments and today there are 38 states with such amendments.
The New Hampshire Constitution was amended just two years later, in 1877, to include a Blaine amendment. It was added to Part II, Article 83 which deals with “knowledge and learning” as well as corporations and monopolies. The amendment states “Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools of institutions of any religious sect or denomination.” It is clearly modeled after the failed U.S. constitutional amendment to extend the anti-religious, anti-Catholic prohibitions.
Our Blaine amendment has been a part of court cases ever since. Most recently, a suit was filed in 2013 against the newly enacted Tax Credit Scholarship Program. A Superior Court ruled the program to be unconstitutional due to our Blaine amendment because parents could use the scholarships to send their children to religious (sectarian) private schools. The N.H. Supreme Court, thankfully, ruled against the defendant stating he had no standing to bring the suit. Just three years ago, the Blaine Amendment was used as an argument in the defeat of SB193 for education saving accounts.
The U.S. Supreme Court Espinoza decision changes things dramatically. The decision stated that “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The decision basically invalidates all state Blaine amendments.
Blaine amendments were born of bigotry. Religious bigotry is no better than racial bigotry. We have seen the tearing down of statues, but what needs to be torn down are the statutes that promote bigotry to this day. New Hampshire needs to repeal this now unconstitutional remnant of anti-religious, anti-Catholic bigotry. I have introduced a Constitutional amendment to do just that. This should not be a political issue in the next legislature. The Blaine amendment repeal should bring us together to eliminate this remnant of religious bigotry.