Americans are largely familiar with the Establishment Clause of the First Amendment. It provides that “Congress shall make no law respecting an establishment of religion.” In common dialogue, that prohibition is generally called the separation of church and state. State constitutions can also offer provisions about the relationship between the government and religion so long as it doesn’t conflict with federal law. Article 2, Section 5 of Oklahoma’s constitution reads as follows:
“No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”
The wording may seem like this provision was offered in a spirit of secularism and of ensuring that the divide between church and state would be even wider than the federal constitution requires. However, this is not the case. It’s an example of a “Blaine Amendment.” Blaine Amendments were adopted in several states in response to Catholic immigration. Today, most states have them.
In the 19th and early 20th century, it was common for public schools to have teacher-led Bible readings. Public schools used to support Protestantism in particular. As the number of Catholic immigrants increased, Catholics started to object. However, Catholic parochial schools were viewed with suspicion by a number of Protestants.
In this environment, Republican Speaker of the House James G. Blaine proposed an amendment to the Constitution in 1875 in order to further his presidential ambitions. The amendment would have banned public money used for sectarian purposes. However, a provision was added that stated, “This article shall not be construed to prohibit the reading of the Bible in any school or institution.”
At the time, “sectarian” often meant Catholic. An 1889 senate bill declared both that tax money couldn’t go to “sectarian schools” and that public schools must teach “principles of the Christian faith.” In the 1870s, a committee for the Massachusetts legislature noted that sects included parish, i.e. Catholic, schools, atheism and agnosticism. While the federal amendment failed, most states, including Oklahoma, came to include some variation of a Blaine Amendment.
As anti-Catholicism is less pronounced today, Blaine Amendments are more generally used to go well beyond what the First Amendment requires. For instance, when a blind Washington man attempted to use state funds available to him for receiving an education, he was prevented from doing so by the Washington Supreme Court, on the grounds that he wanted to study to be a minister. They based this on the Establishment Clause, but the US Supreme Court unanimously overturned this decision.
Yet, he was still ineligible for funding because the Washington Supreme Court later decided that it would violate the state constitution.
Oklahoma’s provision has been interpreted to ban the state from simply transporting students to religious schools. This decision was first reached in 1941 in “Gurney v. Ferguson.” Even if one is concerned about tax dollars being used for religious instruction, one must admit that such instruction does not typically take place on a school bus.
In contrast to “Gurney”, in 1947 the Supreme Court ruled that public funding of the transportation of students did not violate the First Amendment. This decision, “Everson v. Board of Education,” was not a minor decision. It was a landmark case in which the First Amendment was first held even to apply to the states at all. Yet, in 1963, “Gurney” was upheld because of Oklahoma’s Blaine Amendment.
Blaine Amendments are most often invoked to disallow school voucher programs. Oklahoma’s voucher program for disabled students has been challenged on such grounds, as well as the state’s new education savings accounts plan. School vouchers ought to be judged on their own merits. The continued existence of the Blaine Amendments is an embarrassment. The Blaine Amendment of Oklahoma, and those of other states, should be repealed.