An amendment from the 1870s that was once used to target Catholics is now being invoked in Georgia once again to challenge a scholarship program allowing children to attend religious schools.
And the use of the amendment is deeply unacceptable, religious freedom advocates say.
“Georgia’s program is helping low-income children. It would be a
terrible mistake to use a bigoted law from the nineteenth century to
hurt schoolchildren today,” said Lori Windham, senior counsel at the
Becket Fund for Religious Liberty, which filed an amicus brief
supporting the state’s program in December.
“This law is a ghost from Georgia’s past. It shouldn’t be dredged up to haunt education in Georgia today,” Windham continued.
In 2008, Georgia established the GOAL Scholarship Program, funded by
voluntary taxpayer donations, for students to attend private and
The donations are tax-deductible dollar-for-dollar up
to a certain amount – $1,000 for single filers, or $2,500 for a married
couple filing jointly.
The program helps children of low-income families attend private
schools they otherwise might not be able to afford, Becket Fund says.
In January of 2016, the state hit its cap in taxpayer donations for
private school scholarships on the first day, for the second year in a
row, the Atlanta Business Chronicle reported.
However, opponents have challenged that program in court on the
grounds that it violates the state’s constitution. The case is currently
before the state’s Supreme Court.
The constitutional clause in question is the state’s version of the Blaine Amendment, which dates all the way back to the 1870s.
Named after then-Speaker of the House James Blaine, the Blaine
Amendment was originally intended to bar Catholic schools from receiving
state funding, instead of the largely Protestant public school system.
It was part of the anti-Catholic fervor of the time.
Efforts to pass it at the federal level failed in 1875 but around 41
states – including Georgia – have their own versions of the Blaine
Amendment, Diana Verm, legal counsel for the Becket Fund, told CNA.
Georgia’s constitution states that “no money shall ever be taken from
the public treasury, directly or indirectly, in aid of any church,
sect, cult, or religious denomination or of any sectarian institution.”
The amendment was “passed at a time of overwhelming animus toward
Catholics,” Verm said, and it was passed with the intent to discriminate
Today, it is invoked on secularist grounds in many states to prohibit
religious institutions – schools, charities, and hospitals – from
receiving government funds. Its supporters claim that such funding
violates the Establishment Clause of the First Amendment which forbids
Congress from making “no law respecting an establishment of religion.”
State laws should be “neutral towards religion” Verm argued, and
should not actively discriminate against religious institutions.
In 2000, the U.S. Supreme Court, in a four-person plurality opinion
in Mitchell v. Helms, stated that “Consideration of the [Blaine]
amendment arose at a time of pervasive hostility to the Catholic Church
and to Catholics in general, and it was an open secret that ‘sectarian’
was code for ‘Catholic.’”
“In short, nothing in the Establishment Clause requires the exclusion
of pervasively sectarian schools from otherwise permissible aid
programs, and other doctrines of this Court bar it,” the justices
continued. “This doctrine, born of bigotry, should be buried now.”