blaine-standing-leftEleven years ago this week, the Supreme Court handed down a ruling in Locke v. Davey that continues to have a detrimental impact on religious liberty. But the seeds for that ruling were planted 140 years ago, in another attempt to curb religious liberty.

When James Blaine introduced his ill-fated constitutional amendment in 1875, he probably never would have imagined the unintended consequences it would have over a hundred years later. Blaine wanted to prohibit the use of state funds at “sectarian” schools (a code word for Catholic parochial schools) in order to inhibit immigration. Since the public schools instilled a Protestant Christian view upon its students, public education was viewed as a way to stem the tide of Catholic influence.

While the amendment passed by a large majority (180-7) in the House, it failed by a tiny margin (4 votes) in the Senate. Supporters of the amendment, however, pressed the issue at the state level, often making it a prerequisite for statehood. The measure finally found its way into 37 state constitutions, including Washington State.

Fast-forward to 1999, where a Washington high school student Joshua Davey applies for the state sponsored “Promise Scholarships.” According to a press report in 2004:

Davey qualified, and in October of 1999 he received an award certificate for a a $1,125 grant and a letter from Governor Gary Locke congratulating him. But Davey, who had enrolled at Northwest College, a “Christian community of faith and learning” in Kirkland, Washington, declared a double major in Pastoral Ministries and Business Management. Within weeks, the state’s Higher Education Coordinating Board (“HECB”) sent a memorandum to Northwest announcing that the scholarship was being withdrawn because state law provides that “students who are pursuing degrees in theology are not eligible to receive any state-funded student financial aid, including the new Washington Promise Scholarship.”

Davey contested the policy on grounds that it “violates the Free Exercise and Free Speech clauses of the First Amendment of the U.S. Constitution, and federal and state constitutional rights to equal protection under the law.” The case made it all the way to the Supreme Court where, in a surprisingly bizarre decision, the court upheld the ruling that generally available scholarship benefits could be denied to students who want to study theology.

The student who wanted to study Protestant theology was prevented from keeping the scholarship because of a law intended to discriminate against Catholics. He was denied by a Court that used a precedent based on religious discrimination to justify further religious discrimination. In 2004, Notre Dame law professor Rick Garnett argued that, “[the Court] has authorized discrimination by state actors against those who take their religious faith seriously.”

While anti-Catholic sentiment has been all but purged from Protestantism, the vestiges of this religious bias remain in the dusty tomes of our nation’s law books. What a strange legacy this former congressman from Maine has left us. As Blaine biographer Charles Russell said, “No man in our annals has filled so large a space and left it so empty.”


  • Michael Brinks

    We should all be relieved that Grover Cleveland defeated Blaine in the
    1884 presidential election. Cleveland was far from perfect, but in many
    ways he was a principled defender of liberty. Among the parts of his
    winning coalition were the very Catholic immigrants targeted by Blaine’s
    amendment, as well as confessional Lutherans and Calvinists, many of
    whom were also immigrants who wished to set up their own systems of
    parochial schools rather than send their children to public schools that
    they feared would subvert the religious education they received at home
    and in church.

  • William Maddock

    Unintended consequences are the perpetual bane of those who try to cram unbiblical, “new” ideas down the throats of the faithful. They seem to always and forever miss the point of “The Hangman”. Get your popcorn ready to watch the consequences of the latest nadir of wisdom to be sweeping this supposedly Christian nation. Those who will stand for nothing will fall for anything.

  • Kyle Lyles

    Yet here are the Catholics still pushing unfettered immigration, especially of the illegal kind. Since Rupert Murdoch converted to Catholicism, his views on the RINO Fox News are as leftist as the Pope’s. Thank you God for Martin Luther!

  • Veritas

    Not all Catholics are pushing illegal immigration, most in fact, including bishops, are clear that laws that control immigration are just. All that is really called for is humane treatment of those in need. Unfortunately, until the government enforces laws against illegal entry, it is defacto legal entry…. Much like speeding laws that say 55 mph, but aren’t really ticketed until 10 mph greater… Everyone who knows this proceeds at 63 mph, since they know the reality of the law… They are breaking the law!??? The same applies to immigration, so who among us would not flee to a better life if the government allowed it.

    Call out your politicians who allow unjust enforcement for political gain, not those who have mercy towards those in need

  • mikehorn

    Free speech and free exercise, and equal protection, are mentioned in the suit, but not mentioned is the Establishment clause of the First Amendment. SCOTUS has to balance everything in its rulings. In the theology student’s case, the government funding or not his education will have no impact on his free speech or free exercise rights, so those are red herrings. Equal protection has some merit, but must be balanced against the government being forbidden from establishing one religion over any others. Since that curb on government power was conceived in part to end tax support of Episcopal churches and ministers, including their education, to the detriment of all other faiths, then the SCOTUS decision is clearly spot on forbidding government scholarships for future ministers. Equal protection is not overly harmed because scholarships by their nature are selective already, and not guaranteed. He could have lost the scholarship in ways thousands of others already had.

    This is an example of false persecution. No one was harmed by SCOTUS knowing the whole Constitution and making a balanced decision.

    • William Maddock

      Except that it can be argued that the government (by the much neglected second half of the establishment clause) is not to take up opposition to religion, either. The government cannot reward someone for studying matters of faith, but neither may it penalize them, as this student was. The awarding of the scholarship was executed prior to the student’s choice of study subject. The student was then penalized for the choice that he made. The proper reaction of the courts would have been to nullify the penalizing of someone for choosing to practice their faith.

  • mikehorn

    Disconnect in the article: the sectarian schools in question were K-12 equivalents, yet the article focuses on a college scholarship. K-12 are guaranteed free for kids, but college is guaranteed to no one, a privilege to some and a Right to none. Equal protection lost most of its force on that point alone.

    How, precisely, are free speech and free exercise harmed? Can he not practice his faith? Did the college kick him out?

    • William Maddock

      The student was penalized for the choice that he made, which means that there was a penalizing of the exercise of religion.