Blaine Amendment: The Last of the Jim Crow Laws

I thought that we had moved past the KKK era and left behind us a time in which it was acceptable to openly engage bigoted policies on the basis of race and religion. It seems that I was wrong.

Until just a few days ago, Oregon enforced a law that banned religious believers who are required by their beliefs to wear distinctive garb from teaching in the public schools exclusively on the basis of their dress. It did not matter that many of these people were likely fabulous teachers who desired only to teach children math, English, and music. The governor of Oregon saw the light and signed the repeal on April 1. But much work remains to be done. Today the state constitutions of nearly 40 states contain provisions known as Blaine Amendments that discriminate in precisely the same way: They deny state funding to people who are religious on the basis of their religious identities rather than on the basis of their actions and words.

Next week the people of Florida will have the opportunity to be rid of this type of discrimination. Let me explain.

The Blaine Amendment prevents state revenue from giving “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” If this sounds rather innocuous and a mere attempt at maintaining the separation of church and state, its appearance is deceiving. And that is precisely the result desired by the bigoted drafters in 1885. They wrote into the constitution a neutral-sounding rule that does nothing but discriminate on the basis of religious identity. In 2007, the New York-based Council for Secular Humanism (CSH) sued the State of Florida , demanding that the state stop funding Prisoners of Christ and Lamb of God Ministries simply because they are “too religious.” CSH said that Florida ‘s Blaine Amendment prohibits the state from giving money to these institutions even though neither organization does anything to violate the separation of church and state.

They are two “halfway houses” that assist former prisoners on parole overcome their substance abuse problems. The organizations provide a vital secular public service–and are doing a good job too. Their only crime is being religious. To punish them for their crime, CSH has brought them to court and unsheathed its favorite stealth weapon: Florida ‘s Blaine Amendment. The case, CSH v. McNeil, is still pending in Florida’s courts.

Largely for that reason, Senator Thad Altman and Representative Steve Precourt have introduced two bills, SJR 2550 and HJR 1399 respectively, that are intended to repeal Florida’s Blaine Amendment.

Their objective is to correct past wrongs and require that limitations on state funding to religious organizations be based on action and not identity, actual practice and not religious belief. Some have tried to label these bills as voucher bills–a stealth attempt to bring school vouchers to Florida . This is a ridiculous suggestion. The Florida Supreme Court has ruled that a different provision of Florida ‘s Constitution, Article 9 Section 1(a), prohibits vouchers. Neither SJR 2550 nor HJR 1399 have any effect on that section; vouchers will still be 100% unconstitutional in Florida after these bills pass. Rather than attacking these bills on the merits, the opposition is trying to create a straw man as a distraction. Florida ‘s Blaine Amendment is the modern embodiment of KKK religious invidious discrimination and these repeal bills are about nothing more than promoting religious tolerance and liberty for all people.

A Washington, DC-based public interest law firm, the Becket Fund for Religious Liberty, leaders in the fight against the Blaine Amendments, has prepared considerable analysis on the Blaine Amendments and is available at www.becketfund.org. They have posted a short historical analysis on the Blaine Amendments that puts these insidious laws in light of their true historical context and explains the need for SJR 2550, HJR 1399, and similar bills around the country.

Voters in Florida , religious, secularist, and everything in between, should call their representatives and say that they support SJR 2550 and HJR 1399 because they support nondiscrimination. They should call their local teachers unions and ask them to support the bills as well. In the same spirit, the teachers unions should be leading the fight against the Blaine Amendment for a Blaine repeal primarily protects parties like the halfway houses inCSH v. McNeil and people like the religious teachers in Nebraska and Pennsylvania who continue to be discriminated against because of their appearance and identity. And a repeal will do nothing to harm the public schools. On the contrary. The Blaine Amendment is a Jim Crow law directed against the religious. It needs to go and it needs to go now.