James G. Blaine. You’ve heard that name before, right? Of course you have. I’ve written about Congressman Blaine a number of times, usually in the context of Douglas County’s ongoing legal battle against so-called “Blaine Amendments” through its first-of-its-kind local voucher program. Or maybe I should say programs (plural), as the district’s other voucher program made things pretty complicated for a while before a debatable court decision and a new decision by the board put an end to most of the legal craziness.

But while we’ve talked a fair amount about Blaine and the state constitutional clauses named after him, I’m not sure we’ve ever really known the full story. There’s a lot of important history and drama and politics buried behind the simple narrative that most folks just don’t know.  Ross Izard, my favorite policy nerd, set out to tell that story—and to explain why it matters from a constitutional perspective—in his most recent issue paper, Blaine’s Shadow: Politics, Discrimination, and School Choice. 

Let’s start with the basics. Article IX, Section 7 of the Colorado Constitution contains our state’s Blaine clause (note that it isn’t an amendment; it’s been in there since the state constitution was adopted). That section reads:

Section 7. Aid to private schools, churches, sectarian purpose, forbidden. Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

There are also a number of other provisions related to “sectarian” uses of public money, but the clause above is considered Colorado’s actual Blaine clause. More than three dozen other states have similar language in their state constitutions.

So, where did that language come from? We all know at this point that the language of these amendments was targeted primarily at Catholic immigrants—and that’s a perfectly fair high-level assessment. But as Blaine’s Shadow shows, the full story is much more complicated. From the paper:

The introduction of Blaine’s amendment is considered by many to be the genesis of the conversation about sectarian influences in school. It was not. Rather, it represented the political marriage of longstanding concerns about sectarianism in the emerging “common school” system, the interweaving of these concerns with a rising tide of anti-Catholic and anti-immigrant sentiment, and the political ambition of James G. Blaine and the early Republican Party.

The paper goes on to detail how early “common schools” were, for all intents and purposes, Protestant institutions that forced Catholic students to participate in activities that violated their beliefs. When the Catholics attempted to start their own schools and gain public funding for those schools, all hell broke loose. Language against funding for “sectarian” schools was weaponized. As anti-Catholic and anti-immigrant sentiment mounted, savvy politicians—politicians who, like Blaine himself, may not have been anti-Catholic on a personal level—saw an opportunity to wink at certain voter bases in order to consolidate or maintain their power. Those who tried to stand with the Catholic immigrants during the mid-1800s often paid a steep price. Did you know that Abraham Lincoln won the Republican presidential nomination in 1860 partially because his main Republican adversary was crippled by previous attempts to support the 19^th-century equivalent of school choice in New York? You do now.

I can’t help but remember a famous line from Herman Melville’s Moby Dick: “For all men tragically great are made so through a certain morbidness…. all mortal greatness is but disease.” Blaine’s and other’s quests for mortal greatness at any cost were largely responsible in a disease with which students still contend more than a century later.

Colorado’s constitutional convention in 1875-76 was not immune to the discriminatory tides Blaine attempted to ride. In fact, anti-Catholic sentiment was rather obvious as the delegates did their important work. As the paper outlines:

The territory’s Catholic population, which at the time was comprised heavily of Mexican-Americans, was “wildly underrepresented” at the convention. This underrepresentation skewed proceedings toward the philosophy and agenda of white Protestants.The convention itself “was held in the Denver lodge of a secret society that refused to admit Catholics.” Delegates discussed and debated public support of sectarian schools numerous times during the convention. These debates and the reactions they incited exposed the underlying current of anti-Catholic sentiment pervading the convention. In early 1876, as the convention was in full swing, the Rocky Mountain News wrote harshly about the “antagonism of a certain church towards our American public school system.” The article went on to say that such antagonism, if continued, would “lay our vigorous young republic, bound with the iron fetters of superstition at the feet of a foreign despot, the declared foe of intellectual liberty and human progress.” A Boulder newspaper wondered, “Is it not enough that Rome dominates Mexico and all of South America?”

Sort of sounds like religious discrimination, doesn’t it?

At this point, school choice opponents typically begin to throw around rhetoric about the “separation of church and state.” It’s like, the cool thing to do, man—especially if you do it from a wobbly soap box. But, are we sure they really know what that phrase means? I don’t think so.

Blaine’s Shadow addresses this common misinterpretation of the U.S. Constitution’s religious protections by explaining what the constitutional law in this area actually says. From the paper:

The first clause of this sentence is known as the Establishment Clause. This clause contains two restrictions on the federal government in its interaction with religion. First, it prohibits the creation of a national church by the federal government. Second, it requires official neutrality toward different religions on the part of the federal government.

The latter clause, called the Free Exercise Clause, protects the right of American citizens to hold religious beliefs and engage in religious rituals connected to those beliefs. Notably, beliefs “need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection…

…The term “separation of church and state” is often used to describe these key provisions of the U.S. Constitution. That term connotes the idea that government must exist wholly separate from religion in all circumstances. Yet the key tenet of the First Amendment’s religious protections is not absolute separation between government and religion. Rather, the amendment requires government neutrality toward different religions. Thus, any law designed implicitly or explicitly to discriminate against or place a burden upon those who espouse certain beliefs while exempting others is inherently in violation of the First Amendment.

In other words, the entire notion of “separation of church and state” as it exists in the minds of most school choice opponents is flawed. In fact, in an ironic twist of fate, the very same religious protections opponents use to attack educational choice may be what finally rips down Blaine clauses in the United States.

The root of the Dougco case is this: Because government’s responsibility toward religions is to remain neutral, and because Colorado’s Blaine clause is so deeply rooted in discrimination against one particular religion, that clause may itself be a violation of the U.S. Constitution’s protections. It the court were to issue such a ruling, it would be open season on Blaine clauses across the nation, and the doors of opportunity afforded by educational choice would be thrown open for hundreds of thousands of children nationwide. That would be a pretty big deal.

For now, we’ll have to wait to see what SCOTUS does on the Trinity Lutheran case, which I wrote about last year. The legal questions in that case are slightly different than those in the Douglas County case, which means it may be tougher to get the kind of ruling we’re all hoping for there. But the way SCOTUS (now including Justice Gorsuch) will have major implications for if and under what circumstances the court will consider the Dougco case. Trinity Lutheran will be before the court for oral arguments on April 19—one week from today.

I’ll be watching. You should do the same–especially after you read Blaine’s Shadow.