Ending the Shame of Blaine
The Catholic Bishop of Charleston, along with the South Carolina Independent Colleges and Universities, filed a federal lawsuit challenging the South Carolina constitution’s “Blaine Amendment.” This provision, which prohibits the state from “directly” funding any religious or private school, is responsible for blocking the schools operated by the litigants from receiving the federal COVID-19 relief funds to which they are entitled. Although Governor McMaster planned to distribute these funds equitably to all schools, the Blaine Amendment has caused private schools in South Carolina, including many that educate the state’s most vulnerable children and young adults, to miss out on millions of dollars of federal coronavirus funding during the pandemic.
The plaintiffs allege that the Blaine Amendment violates the Free Exercise Clause and Equal Protection Clause of the U.S. Constitution because it was motivated by racial and religious animus at a particularly shameful historical moment. That history is revealing and worth a moment of reflection. In 1875, responding to widespread anti-Catholic and nativist fervor, Representative James Blaine introduced an amendment to the U.S. Constitution that would have prohibited the public funding of “sectarian” schools. When that effort failed, Blaine advocated that states accomplish the same goal by amending their own constitutions. These “Blaine Amendments” were a blatant attempt to decrease the influence of Catholic immigrants throughout the United States. At the time, Catholic immigrants were viewed as dangerous and anti-American because of their perceived loyalty to the Pope. To this day, thirty-seven states still have a Blaine Amendment in their constitution.
Following the Civil War, South Carolina adopted two constitutions in a span of less than thirty years. The first, the Reconstruction Constitution of 1868, attempted to constitutionalize Reconstruction-era principles such as education reform and racial equality. The second, the Constitution of 1895, sought to reverse Reconstruction efforts and implement Jim Crow laws throughout the state. It was in this latter constitution that South Carolina first adopted its Blaine Amendment. The effort to adopt the Constitution of 1895 was led by then-Governor, and soon-to-be United States Senator, “Pitchfork Ben” Tillman. Tillman was an avowed racist, who some argue did more to implement the Jim Crow system than anyone else in history. In an attempt to reverse the effects of Reconstruction, Tillman convinced a narrow majority of South Carolina voters, dominated by so-called “Tillmanites,” to call for a constitutional convention.
Unsurprisingly, racial animus pervaded the 1895 Convention, and the historical evidence suggests that anti-Catholic fervor influenced it as well. Years later, Tillman would boast on the floor of the United States Senate that the 1895 Convention “calmly, deliberately, and avowedly” proceeded “with the purpose of disenfranchising as many” black citizens as possible. They did so by implementing a literacy requirement, which also had the effect of disenfranchising illiterate white residents, including many immigrants.
It was in this shameful context that South Carolina adopted its Blaine Amendment. The Blaine Amendment advanced the goal of disenfranchisement because, in the decades following the Civil War, missionaries from many faith traditions, including some that founded the institutions operated by the plaintiffs in the case, came to South Carolina with the express purpose of educating freed slaves. By blocking public support for these admirable institutions, the law inhibited religious missionaries from helping freed slaves and Catholic immigrants receive the education opportunities they needed to qualify to vote. And, since many delegates’ bigotry extended to Catholics, the Blaine Amendment had the important side benefit of (in the word of one prominent Tillmanite) defanging “America’s most dangerous and deadly foe,” The Roman Catholic Church.
The plaintiffs argue that South Carolina’s Blaine Amendment was “born of bigotry and prejudice, based on race and religion.” This is unquestionably true. And, importantly, this law is not just a disgraceful relic of the past; its harms persist since it continues to prevent private and religious schools from receiving support that is otherwise generally available to advance their good work on behalf of the citizens of South Carolina, even when these good works are most needed in the midst of a global health crisis. The plaintiffs should prevail. It is time to end the shame of Blaine.
Nicole Stelle Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame. Daniel T. Judge is a student fellow in Notre Dame Law School’s Religious Liberty Initiative.