Former MCC executive director: Supreme Court decision casts Missouri’s Blaine Amendment ‘into dustbin of history’

Ultimately, the parents should have the choice to educate in the home or in the school, or what kind of school, so they should have a choice.”

Mike Hoey

The U.S. Supreme Court’s Carson v. Makin ruling could eventually expand educational options for Catholic families and close out a longstanding relic of 19th-century anti-Catholic bias in Missouri and other states.

The 6-3 decision, handed down June 21, declared that a Maine tuition aid program that excluded religious schools was unconstitutional.

“I would say that this decision puts Missouri’s ‘Blaine Amendment’ in the dustbin of history,” stated Mike Hoey, retired executive director and longtime legislative specialist with the Missouri Catholic Conference.

Mr. Hoey, a member of Immaculate Conception Parish in Jefferson City, has extensively studied the history of anti-Catholic bias in the Missouri Constitution and is the author of “Missouri Education at the Crossroads: The Phelan Miscalculation and the Education Amendment of 1870,” published in the Missouri Historical Review in July 2001.

“A number of states passed so-called ‘Blaine Amendments’ in the 19th century and were motivated in large part by anti-Catholic bias, which was very prevalent in America at that time,” he said.

People have defended such century-and-a-half amendments to state constitutions “as if they were an extension of the U.S. Constitution’s First Amendment.”

“That’s a clear misreading of the First Amendment,” Mr. Hoey stated.

He noted that there are two parts of the First Amendment’s first phrase, which deals with religion:

• “Congress shall make no law respecting an establishment of religion” and
• “... or prohibiting the free exercise thereof.”

Mr. Hoey said the “no establishment” portion was a response to several of the former colonies that became the United States of America having their own established, state religions.

“For instance, in colonial Virginia, before there was a ‘United States,’ when the states were still just colonies, the Church of England was the established religion, and Virginia’s colonial government subsidized the Anglican clergy,” said Mr. Hoey.

That did not sit well with Virginia’s Baptists and the smaller Protestant denominations.

“That’s partly the reason they put ‘no establishment of religion’ in the Bill of Rights,” said Mr. Hoey. “They didn’t want a particular religion to be the official religion. They wanted people to have freedom to express their religious beliefs in whatever way they wished.”

With that understanding, Carson v. Makin makes perfect sense, he said.

“The Court’s decision is simply saying that if a public school system is going provide grants or vouchers to schools in the private sector, it cannot exclude private religious schools simply because they’re religious,” he said.

That, he stated, would amount to inhibiting the free expression of religion, in violation of the second part of the First Amendment’s religious clause dealing with religion.

Mr. Hoey was quick to point out that the Carson ruling does not require states to give funding to private schools or to parents wishing to send their children to private schools.

“If the public school system chooses to only fund public schools, they can do that, they’re free to do that and that’s their prerogative as a public body, as a government agency,” he said.

“But if they’re going to provide funding in the private sector, you can’t single out religious schools as being not eligible simply because they’re religiously affiliated,” he added.

Mr. Hoey called the decision “a big step forward.”

Missouri has passed several laws in the past 10 to 15 years, expanding public education into the private sector, including charter schools and a rather limited voucher program.

“This ruling should open up some of those programs to religious schools,” he said.

He noted that states could still set requirements for participating in such programs, as long as those requirements apply to all people who want to compete for those vouchers or grants, and are not intrinsically biased against faith-based schools simply because they’re faith-based.

“Catholic schools would have to look at those requirements and decide whether they want to participate or not,” he said.

Will take time

Mr. Hoey believes it might take a while for the Court’s intent in the Carson ruling to filter down to every state.

“There will probably be some pushback,” he said. “It’s going to take a little while for the import of this decision to sort of sink in. It may still be debated for a while.

“But if you’re going to have any kind of voucher program,” he stated, “especially one that goes to parents, the Supreme Court is saying you’re not establishing religion by opening it up to religious schools; you’re allowing the free expression of religion.”

He believes Missouri’s current, fairly limited voucher program for parents who want to send their children to charter schools or to public schools in neighboring districts, would provide the best opportunity for parents seeking tax relief for sending their children to religious schools.

“As it is now with the ruling, if someone brings out legislation to start up a voucher or tax-credit program that includes public and private schools, no one will be able to argue that it’s unconstitutional,” he said.

“As long as the choice is in parents’ hands, it’s certainly an opportunity for the advocates of school choice, especially in the Catholic sector, to make sure Catholic schools are included in such a program,” he stated.

Mr. Hoey is convinced that the ruling will point Missouri in a new, better direction — “a non-discriminatory approach that honors and respects freedom of religion.”

Nonetheless, when programs for funding non-public education become available to families who send their children to Catholic schools, the requirements might wind up being too much to bear, he said.

In the meantime, he believes the Court’s decision should not lead to more religious divisiveness, “particularly when you put the money in the parents’ hands.”

“Ultimately,” he stated, “the parents should have the choice to educate in the home or in the school, or what kind of school, so they should have a choice.”

Fear of “the other”

Mr. Hoey pointed out that what are known as “Blaine Amendments” were part of an attempt in the 1870s by U.S. Rep. James Blaine from Maine to stop any kind of aid to religious schools.

The prohibition in Missouri’s Constitution, adopted in the tumultuous years following the Civil War, actually preceded the national movement by a few years.

“You can look back and you can see when attempts were made to provide some kind of assistance that would include private schools and religious schools, and you’ll see that some very harsh anti-Catholic backlash occurred,” he said.

Many people today don’t realize how prevalent anti-Catholicism was in the mid- to late-1800s, fueled in part by centuries-old hostilities dating back to the Protestant Reformation in Europe.

“In those days, the Catholic Church was still viewed very suspiciously by a lot of people,” Mr. Hoey noted.

Concerns grew as more immigrants from countries with large Catholic populations began settling in the Midwestern and Western United States.

“A lot of people were afraid,” he said. “You had persistent conspiracy theories that the pope was trying to populate this country with Catholics so he could take over.”

All the while, the overwhelming majority of American Catholics respected the nation’s Constitutional and de facto religious plurality and “just wanted to be accepted with other religions,” said Mr. Hoey.

“This was a distinctly Protestant country where we were a definite minority,” he said. “There was no desire among American Catholics to make Catholicism the official religion.”

He said a lot of it came down to history and to being afraid of “the other.”

“Which, to an extent, we still are,” he said.

Silent prayer

Mr. Hoey said the Supreme Court applied reasoning similar to its Carson decision to another case, Kennedy v. Bremerton School District.

In Kennedy, handed down June 27, the Court ruled against a public school district that fired a high school coach for kneeling down and praying silently on the field after games.

“The justices in the majority opinion saw this also as an issue of freedom of expression of religion,” said Mr. Hoey. “Somehow, it got mixed up in the fear that he was establishing religion.”

In fact, Mr. Hoey noted, the coach was very open to the prayers and religious practices of players of other religious beliefs.

“I think people in general are way far ahead of where the courts have been until recently,” Mr. Hoey said. “I think people are a lot more tolerant of religious pluralism and diversity than the courts and the courts are just catching up.”

Greg Erlandson of Catholic News Service contributed information to this article.