Secularism’s Law: State Blaine Amendments and Religious Persecution
By Kyle Duncan
State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the mid to late 1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the “Blaine Amendment”—that would have sealed off public school funds from “sectarian” institutions, similar provisions proliferated in state constitutions. These “State Blaines” have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to the flow of public benefits that exceed the church-state separation demanded by the Establishment Clause. Today, the State Blaines are becoming increasingly relevant as the Supreme Court has progressively softened federal constitutional barriers to religious access to public funds. This Article examines the history, language, and general operation of the State Blaines. It concludes that the State Blaines generally raise explicit, religion-sensitive barriers to the allocation of otherwise available public benefits and, consequently, that the operation of the State Blaines would typically violate the religious non-persecution principle of the First Amendment.