Blaine Amendments

While the state Blaine Amendments (state constitutional provisions that prevent public benefits to be used by religious organizations or persons) have been on the books for quite some time now, they are unconstitutional on basis of recent Supreme Court decisions. I intend to show how these amendments entangle government in the affairs of religious institutions, are guilty of religious “gerrymandering” and target “religiously affiliated and motivated conduct” thus nullifying their constitutionality. [VB1]
The third prong of the Lemon Test, established in Lemon v. Kurtzman (1971), states that “a statute must not foster an ‘excessive government entanglement with religion’.” While Establishment Clause arguments are seemingly irrelevant since the Blaines are seen to provide greater protection than the constitution, the possibility of the Blaine Amendments violating the minimum federal standards for establishment legislation must be examined. Generally speaking, Chief Justice Burger stated that the goal this third prong serves to accomplish is to “prevent, as far as possible, the intrusion of either [government or religion] into the precincts of the other.”(Lemon) Before providing public benefits or funds it is common practice for the government to question their intended use. Since the Blaine Amendments only deal with religious organizations or persons, this forces the government to make in-depth inquiries into which activities and uses these funds would be applied. This in-depth investigation to make sure that public funding conforms to the Blaines approaches dangerously near “excessive entanglement.” In Walz v. Tax Commission of the City of New York (1970), tax exempt status for churches was upheld on the basis that taxing said institutions would require the state to examine financial records and possibly speak with clergy about expenditures. Avoiding this type of entanglement was the basis for providing religious institutions a marginal economic benefit over the rest of the population. The Blaine Amendments force the state to gather this same type of information from religious institutions if any funding is provided to someone even remotely involved with a religious organization. This sort of investigation is an illegal implication of the Blaine Amendments and thus renders them unconstitutional. [VB2]

One might counter this argument on the grounds that the Blaine Amendments do not really imply the “excessive entanglement” forbidden by the Lemon Test. In Agostini v. Felton (1997), Justice O’Connor wrote that “not all entanglements… have the effect of advancing or inhibiting religion.” She goes on to say that interaction between church and state cannot be avoided and it is tolerated to some degree. It could be argued that the fact that the Blaines are so general, as to prohibit any benefits from reaching any religious organization or person, that such in-depth inquiry is not needed to force compliance with such legislation. If ~~the assumptions of~~ this counter-argument are given serious merit then an even more severe infringement on free exercise might be implied.[VB3]

[VB4] In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court voted 9-0 to strike down a city ordinance that allowed every kind of animal slaughter except the kind that was performed by the Santerian religion. While the ordinance was carefully worded to not target the Santerians, the fact that it obviously disallowed the single type of animal slaughter performed by them, led to the accusation of religious gerrymandering. So too are the Blaine Amendments guilty of this sort of “covert discrimination” and thus religious gerrymandering. By allowing public officials [VB5] to systematically decide to deny public benefits to any religious cause, the Blaines are not neutral and seek to suppress religious expression. Religious gerrymandering was deemed unconstitutional as a result of the Lukumi case; this decision eliminated [VB6] the constitutionality of the Blaine Amendments.

The Blaine Amendments are neutral in terms of religion however and this could be seen as the basis for a fairly strong counter-argument. The Amendments do not target any specific religion just religion in and of itself. This fact shows that the Blaines do not seek to pick and choose amongst religions rather they just generally prohibit the use of public funds. This argument lacks merit however because Beurger held in his opinion on the McDaniel v. Paty case that one must not target a specific religion to be guilty of targeting. The facts of this case involve ministers being ineligible to run for public office. Beurger concluded that this did not specifically target any sort of belief but rather an individual’s status as a minister or priest which is defined by religiously affiliated and motivated conduct (Duncan). Taking this logic a step further, the Blaines do not specifically target any religion but rather an individual’s or organization’s status as a religious entity. This type of discrimination is unconstitutional because as Brennan said in a concurring opinion, it is “imposing a unique disability upon those who exhibit a defined level of intensity of involvement in protected religious activity.”(Duncan) This precedent essentially disallows government from “imposing special disabilities on the basis of religious views or religious status” (Duncan) which ultimately serves as the best basis through which the Blaine Amendments must be deemed unconstitutional. [VB7]

The Blaine Amendments must be found to be unconstitutional because not only do they fail to meet the minimum federal standards for establishment related legislation but they also specifically target any type of religiously motivated activity which is widely held to be an illegal action.

Excellent paper. There were some very slight problems with coherence or precision in your argument, but this is very nicely done. A-