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'Blaine Amendments' Spark Renewed Debate Over US Separation of Church and State - 2003-10-26

The first Monday in October was the start of the new session for the U.S. Supreme Court. Among the issues the Court will be looking at is the matter of so-called "Blaine Amendments." These are laws that became a part of many states' constitutions in the late 19th century. They were rooted in religious bigotry, and some people believe they still perpetuate religious bigotry, though of a decidedly different sort.

James G. Blaine was a U.S. Congressman from Maine who authored a constitutional amendment in 1875 that would have banned the spending of government money by religious organizations. The target of Blaine's proposed amendment was the Catholic school system. The late 19th century was a time of rampant anti-Catholicism in the United States, and many Protestant Americans didn't want the government funding Catholic schools, even though Protestant interpretations of the Bible were mandatory in most public schools at the time.

The Blaine Amendment failed to win approval in the U.S. Congress. But more than 30 states incorporated versions of it into their state constitutions. One of those states was Washington in the Pacific Northwest.

"It was a condition for Washington state's admission to the Union, was to have a Blaine Amendment in their constitution," says Jay Sekulow, an attorney for the American Center for Law and Justice. He's representing Joshua Davey, a college student in Washington who was awarded a state scholarship on the basis of his academic performance in high school. The scholarship is given to any Washington state resident who is deemed needy, and who also achieved a score of 1200 or higher on the national Scholastic Aptitude Test.

But the state of Washington revoked Mr. Davey's scholarship before the money had even been transferred to his school because Joshua Davey declared a double major of business administration and theology. "You could study comparative religion and still obtain the scholarship. You could take courses on why religion is not correct, or why a particular religious belief is not correct. But if you study religion, as the state interprets it, from a perspective that religion represents a truth, it's deemed devotional in nature, and therefore it can be denied. The scholarship can be denied," says Mr. Sekulow.

Jay Sekulow and his client, Joshua Davey, have challenged the constitutionality of the state of Washington's Blaine Amendment, which was actually reaffirmed by voters in the 1970s, so it's not exactly a vestige of the 19th century anymore. A lower court sided with the state, but then a federal circuit court overturned that decision, saying the state of Washington was discriminating against Joshua Davey on the basis of his religious beliefs.

But according to Narda Pierce, Washington's Solicitor General, this case isn't about religious discrimination. It's about the fact that the state of Washington has a very dense wall between church and state, denser perhaps than the wall that exists on the federal level. "The issue in this case as we see it is whether or not a state constitution can have a different level of separation between church and state than the federal constitution. The issue is whether the Washington state constitution that says no public money shall be applied to religious instruction is in conflict with our federal constitution," she says.

The case has implications that go well beyond the issue of whether Joshua Davey will get his scholarship. Last year, in a decision hailed by the Bush administration, the Supreme Court ruled that a school voucher program in Ohio did not violate the U.S. Constitution's prohibition against state-supported religion, even though that program allowed parents to use government-funded vouchers to pay for tuition at religious schools.

The voucher program in Ohio may not violate the federal constitution, but if a similar program were implemented in the state of Washington, or any other state that has a Blaine amendment, it would violate that state's constitution. Unless, of course, the Supreme Court decides states aren't allowed to have a separation between church and state that's stricter than the federal government's. The Court will begin hearing arguments on the matter in December.