The Indiana Supreme Court ruled unanimously today that the state’s school voucher program is constitutional. This is good news for supporters of school choice, and bad news for teachers’ unions. But the Indiana ruling is especially interesting since it may sound the death knell for legal challenges to vouchers based on states’ Blaine Amendments.
Indiana is one of 37 states with a constitutional provision prohibiting – in varying degrees – the use of state funds to benefit religious or sectarian institutions. The amendments are named after Rep. James G. Blaine of Maine, who as Speaker of the House tried to get a similar provision amended to the U.S. Constitution in 1875. Although the Blaine Amendments were closely associated with anti-Catholic, anti-immigrant bigotry in the 19th century, they made a handy argument against school vouchers in the 20th and 21st centuries.
The turning point may have been in Florida in 2006, when the voucher program was struck down – not on the basis of the Blaine Amendment, but on a provision that called for uniformity in the state’s public schools. This didn’t go unnoticed in Indiana and at NEA headquarters, so when the union challenged the Indiana law, it did so citing both the state’s Blaine Amendment and its uniformity clause.
The Indiana justices rejected both arguments, but were quite direct about the sectarian aid portion:
We first find it inconceivable that the framers and ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit — for example, fire and police protection, municipal water and sewage service, sidewalks and streets, and the like. Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public.
Any benefit to religious or theological institutions in the above examples, though potentially substantial, is ancillary and indirect. We hold today that the proper test for examining whether a government expenditure violates Article 1, Section 6, is not whether a religious or theological institution substantially benefits from the expenditure, but whether the expenditure directly benefits such an institution. To hold otherwise would put at constitutional risk every government expenditure incidentally, albeit substantially, benefiting any religious or theological institution.
After examining the fundamentals of the voucher program, they concluded: “We find that the only direct beneficiaries of the school voucher program are the participating parents and their children, and not religious schools.”
Of course, different states have different verbiage in their constitutions, and the unions have made it clear they will challenge vouchers on any grounds, but the argument that school choice programs are state subsidies of religious activity is going the way of Blaine himself.