Dusting Off the Blaine Amendment: Two Challenges to Missouri’s Anti-Establishment Tradition
Dusting Off the Blaine Amendment: Two Challenges to Missouri’s Anti-Establishment Tradition
Aaron E. Schwartz, 73 Mo. L. Rev. 129 (2008)
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In the years since the federal barriers have subsided, a significant coalition of legislators and activists have attempted to directly and indirectly fund sectarian educational institutions. Their efforts raise two questions. First, is it wise to fund religious schools? This is a question properly reserved for policy makers and remains unanswered by this comment. Second, assuming the political will is insufficient to repeal Missouri’s Blaine Amendment, is it constitutionally permissible to support religious schools through either a voucher program by declaring the Blaine Amendment violative of the federal free exercise clause or by avoiding the Blaine Amendment through the use of an income tax benefit?
Neither of these two challenges to Missouri’s Blaine Amendment, a tax scheme or a free exercise challenge is likely to succeed. A federal free exercise challenge to a voucher program based on the denial of a generally available benefit due to religious use is bound to fail. Additionally, a free exercise challenge based on the anti-Catholic motives of the drafters of the Missouri Blaine Amendment is unsupported and likely historically inaccurate. Little evidence links the 1875 Missouri Blaine Amendment with the anti-Catholic bigotry often associated with the failed National Blaine Amendment and Blaine Amendments in other states. Even less evidence of religious bigotry is available for the Blaine Amendment readopted in Missouri’s 1945 constitution. Furthermore, any number of tax schemes supporting religious schools are likely impermissible in Missouri because a tax credit is equivalent to a grant of public funds, tax benefits help “sustain or support” religious schools, and even indirect aid to parochial schools is impermissible