Robert Natelson, a retired constitutional law professor who is allied with the ultra-conservative Heartland Institute, writes in The Hill that the Supreme Court may well strike down the state prohibitions on funding religious schools (known as “baby Blaine amendments”) because of their origins in anti-Catholic bias. If this happened, it would pave the way for government to divert public funding from public schools to pay for vouchers for religious schools, as Secretary of Education Betsy DeVos advocates.

The Blaine Amendment was proposed by Speaker of the U.S. House of Representatives James G. Blaine in 1875. Blaine was an ambitious politician from Maine who ran for president in 1876, 1880, and 1884. He was interested in a wide range of issues, including trade, monetary policy, and foreign affairs. He is remembered today for the Constitutional amendment he proposed, which passed the House but not the Senate:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, 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.

Although the Blaine Amendment was not adopted as an amendment to the U.S. Constitution, it was adopted by many states and incorporated into their state constitutions to prohibit spending public money on religious schools.

Natelson is right that the public schools of the 19th century were deeply imbued with Protestant teachings and practices. I wrote about the battle between Protestants and Catholics in my history of the New York City public schools (The Great School Wars). The arrival of large numbers of Irish immigrants in the 1840s, mostly Catholic, concurred with the beginnings of public school systems in urban areas.

In New York City, Bishop John Hughes (later Archbishop Hughes) fought the local school authorities over the content of the textbooks, which contained anti-Catholic selections, and the daily Protestant prayers and rituals in the schools. Hughes demanded equal funding for Catholic schools, since the public schools served as Protestant schools. Even if they cleansed the textbooks of Protestant views of history, he said, the schools would still fail to meet the needs of Catholic children for a Catholic education. He did not want nonsectarian schools; he wanted Catholic schools. He proposed that the state fund both Catholic public schools and Protestant public schools. He ultimately lost the battle, but he determined to build an independent Catholic school system that was privately supported to make sure that Catholic children were not exposed to Protestant teachings in the public schools. His example eventually persuaded the American Catholic Church to require all parishes to open their own schools, and to expect all Catholic children to attend them.

The Protestants who then ran the New York City Public School Society tried to placate Bishop Hughes by expurgating textbook content that he found offensive. Their efforts did not satisfy Bishop Hughes because he did not want nonsectarian public schools. He wanted schools that taught the Catholic religion to Catholic children.

In the 1840s and 1850s, the Know-Nothing Party formed to advocate for white Anglo-Protestant nativism and to harass Catholics and immigrants. The popular press was rife with cartoons ridiculing Catholics and articles warning about the Catholic menace. Prejudice against Catholics and Irish immigrants occasionally turned violent, and churches and convents were burned to the ground.

The Blaine Amendment appealed to anti-Catholic sentiment among the dominant Protestant majority (Blaine’s mother was Irish-Catholic, and as Natelson points out, there is no evidence that he was prejudiced). Blaine was a member of the moderate faction of the Republican party and a strong supporter of black suffrage. (Ironically, Archbishop Hughes of New York was an opponent of abolitionism.)

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Natelson maintains that the anti-Catholic origins of the Blaine amendment are reason enough to overturn them.

But it seems to me even more plausible to argue that the public schools today are not “Protestant schools,” that they are thoroughly nonsectarian in character, and that they fulfill the original promise of the Blaine Amendment, which is to serve all children on equal terms, regardless of their religion.

Thanks to the Supreme Court ruling Engel v. Vitale in 1962, forbidding state-sponsored prayer in the public schools, the public schools no longer impose any religious prayers or practices, as was common in most public schools well into the 20th century.

The motives of James G. Blaine or Catherine Beecher Stowe or Horace Mann or Henry Bernard or any of the other 19th-century founders of public schools are irrelevant today. They matter less than the reality and practices of public schools today that the Blaine Amendments permit and protect.

Because of the states’ Blaine Amendments, public schools across the nation welcome children who are of every religion or no religion, whether Catholic, Protestant, Muslim, Jewish, Hindi, Buddhist, atheist, or any other belief.

To rule against the Blaine Amendments would open the door to subsidizing religious schools with public dollars. On many occasions, voucher advocates have asked voters to repeal their state’s Blaine amendment to allow vouchers for religious schools, and in every state, voters said no. Betsy DeVos and her husband sponsored a referendum in Michigan in 2000 to roll back that state’s ban on vouchers, and voters rejected their proposal overwhelmingly. A proposal to permit vouchers was rejected by voters in Utah in 2007. Jeb Bush promoted a referendum to change the state constitution in Florida in 2012 (he called it the “The Florida Religious Freedom Amendment”), and despite its deceptive name (who would vote no to religious freedom?), voters decisively said no. The voucher programs that now exist were installed by state legislatures circumventing their own state constitution and the will of the voters. The pro-voucher legislators say that the money goes to the family to spend wherever it wants, including religious schools. They go out of their way to try to disguise these voucher programs by calling them something else, like “opportunity scholarships,” “tax credits,” “education savings accounts,” “empowerment savings accounts.” But they are still vouchers for religious schools.

The legislators know that the public opposes funding vouchers for religious schools. Thus they try to avoid calling them what they are or asking for a public referendum to change the state constitution. Voters have repeatedly made clear that they do not want to pay their taxes to underwrite religious schools.

The founders were wiser than we are. The First Amendment states clearly that Congress is not allowed to establish any religion. The founders were well aware of the centuries of religious rivalry and factionalism that had brought constant war and bloodshed to Europe, and they did not wish to encourage it in their new nation. The word “education” does not appear in the Constitution. It is a responsibility left to the states. That does not mean that the federal government has no obligation to fund education, in support of the general welfare; it does. That does not mean that the federal government does not have the power to protect the civil rights of students; under the Fourteenth Amendment, it does.

If the High Court reviews the state Blaine Amendments, I hope the Justices will recognize that the founders knowingly decided to avoid state entanglement with religious establishments. Let the states decide what belongs in their state constitutions, by popular vote. Our public schools are no longer the Protestant public schools that Bishop Hughes fought against. They are an integral part of our democratic society. They are a public good, like the services of police and firefighters, like public beaches, libraries, and parks. Separation of church and state is a valuable principle that protects the church schools from government intervention and mandates. Religious liberty is best protected by keeping it separate from government dollars and government control.