The Establishment Clause is usually in the thick of church-state battles. But the failed attempts this year by Georgia and Florida legislatures to repeal their states' Blaine Amendments highlighted another longstanding battlefront.
Passed shortly after the Civil War, Blaine Amendments prohibit government funds from flowing to religious or sectarian groups. Originally meant to limit Catholicism's influence, they are now used to restrict religious groups when appeals to the Constitution's ban on establishing religion don't work.
Cases brought under the Blaines often involve restricting how school vouchers are spent. A Florida appeals court ruled in 2004 that a voucher program violated the Blaine Amendment because it allowed public money to indirectly benefit religious schools. Last year, Arizona ended a state scholarship program for special-needs students to attend private schools of their parents' choosing.
The Supreme Court green-lighted such decisions in 2004 when it ruled in Locke v. Davey that the government can deny students a state-funded scholarship for majoring in theology.
But most Blaine Amendments carry much broader restrictions if they are interpreted literally.
A case currently before a Florida court involves two Christian nonprofits that contract with the state to operate halfway homes for substance abusers. The Council for Secular Humanism is suing Lamb of God Ministries, Prisoners of Christ, and the state under Florida's Blaine Amendment. The council claims that the nonprofits are proselytizing through programs operated in part using state funds.
But defenders say that under a literal reading of the Blaines, state contracts would be stripped from historic charitable monoliths like the Salvation Army or Catholic Charities just because they are religious—regardless of whether they make religious beliefs a part of their services.
Glenn Katon, religious freedom project director for the ACLU of Florida, said he's never seen the Blaine Amendment interpreted literally. He thinks enforcing the Blaines would just ensure that religious groups can't proselytize during programs supported by state funds.
But opponents of the Blaines say that, at core, they unfairly favor nonreligious groups over religious groups.
A Florida court decision that enforces the amendment would be discriminatory, said Nathan Adams, a private legal counsel to the state. It could give the government an unconstitutional license to examine exactly how religious groups are, he said.
"The state would get to look at your orthodoxy and theology and try to reach some kind of determination of whether you are very religious or a little religious," Adams said. "And that inquiry has been found in some cases to be unconstitutional itself."
Mark DeForrest, an assistant professor at Gonzaga School of Law in Washington State who has written about the Blaines, thinks they are unconstitutional. But while Louisiana struck down its Blaine amendments in the 1970s, DeForrest doubts the laws will be struck down in the 37 states that currently include a form of them in their constitutions.
The difficulty lies in what the Blaine Amendments offer: prime ammunition for teachers' unions that oppose school vouchers, DeForrest said.
A trail of irony follows the Blaines. Anti-Catholic and immigrant sentiment stirred up by the Know-Nothing Party in the late 1800s led to a push for laws to keep public funds away from "sectarian" institutions—which was code for "Catholic" at the time, says Eric Rassbach, national litigation director for the Becket Fund for Religious Liberty, a Washington, D.C.-based group involved in the pending Florida case.