The Freedom From Religion Foundation is actively involved with efforts in two states to fight public funding of religious schools. Both South Carolina and Oklahoma have state constitutional provisions that protect the separation of church and state but selective editing of the history of these constitutional protections by opponents has been used to suggest these provisions promote religious discrimination by denying religious organizations access to public funding.
These examples serve to help explain the struggle attorneys and legal advocacy groups have with how to apply the recently imposed “history and tradition” test that the U.S. Supreme Court decided supplants traditional legal analysis, that is, the method of analysis lawyers actually learned in school. Since the 1970s, the Lemon Test guided Establishment Clause jurisprudence. Fifty years later, the Supreme Court found it did not fit within our nation’s history and tradition and officially deemed it unworkable.
There are several problems with using history to define the law. First, law school does not require a history degree nor does it confer a history degree. Second, historical interpretation is not objective so cherry-picking a biased view is an easy feat. Consider the historical accounts attorneys will find regarding the 2020 presidential election a century from now. Third, we don’t live in the past.
In South Carolina, House Speaker Murrell Smith introduced a bill with a “history” lesson. The bill is an attempt to fund religious, private schools, which is prohibited by the South Carolina Constitution’s “no-aid” clause: “No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.” The new bill would allow a ballot initiative in 2024 to ask South Carolina voters whether the no-aid clause should be repealed. The bill has passed the House and is in committee in the Senate.
Speaker Smith’s history lesson is a perfect example of incomplete and edited history. He referred to the clause as a Blaine Amendment. In 1875, U.S. Rep. James Blaine introduced an amendment (with wording based on Thomas Jefferson’s Virginia Statute for Religious Freedom) to the U.S. Constitution that prohibited public funding for religious schools. The amendment failed at the national level, but many states adopted their own versions. Blaine Amendments are controversial because some historians have argued that Blaine’s primary motivation was anti-Catholic bigotry. If so, such amendments equate to religious hostility and not, as other historians argue, an attempt to apply the Establishment Clause to the expanding public school arena (the first compulsory education law was passed in 1852). Because of this controversy and the ever-increasing legal challenges to obliterate the separation between church and state, some states have revised or repealed their versions. Using the religious discrimination angle, Smith argued that repealing South Carolina’s no-aid clause would repeal the remnants of the state’s bigoted past.
South Carolina’s no-aid clause, however, is not a Blaine Amendment. The no-aid clause originated earlier in 1868 during a constitutional convention comprised of a majority of Black delegates. When South Carolina, which had a predominantly Black population at the time of the Civil War, finally had to reckon with this reality after slavery was abolished, the no-aid clause was added to the constitution. The version at that time: “No religious sect or sects shall have exclusive right to, or control of any part of the school funds of the State.” If the no-aid clause reflects South Carolina’s bigoted past, then why did the 1868 Black delegates make this contribution to the constitution? Because religious schools are bigoted. If there is any doubt about this, consider that South Carolina’s very own Bob Jones University fought all the way to the U.S. Supreme Court in the 1980s in an attempt to retain its right to practice racial discrimination without losing its tax-exempt status.
In his introduction to the bill, Smith said repealing the no-aid clause is necessary, in part because it prevented Gov. Henry McMaster from routing federal relief funds to religious schools. In 2020, in Adams v. McMaster, the South Carolina Supreme Court ruled that the no-aid clause prevented such an end run of public funding, but Smith does not believe courts should decide constitutional limits. His fix is to repeal the clause to prevent future funding litigation and misdirection by the judicial system. And that means adjusting the history to fit his needs.
Oklahoma, likewise, has a no-aid clause in its constitution. Additionally, Oklahoma has nonsectarian requirements in its Charter Schools Act, yet it recently approved the nation’s first religious charter school, which FFRF and a coalition will soon be challenging in court. In the revised application for the charter school, the Catholic applicants — not surprisingly — referred to the applicable constitutional nonsectarian protections as a version of a Blaine Amendment. In 2015, however, several justices on the Oklahoma Supreme Court explained, in Prescott v. Oklahoma Capitol Preservation Commission, that Oklahoma’s version is not a Blaine Amendment. It originated much later when Oklahoma was applying for statehood, in 1906, in the Oklahoma Enabling Act. Statehood was granted in 1907 and the clause was incorporated into the new state’s constitution. So which version is “correct?” The discriminatory historical version promoted by religious school applicants demanding public funding or the nondiscriminatory interpretation by the highest court in the state?
Oklahoma asked its residents to decide in 2016 if its no-aid clause should be repealed. State residents resoundingly said no. South Carolina voters will have the final say on their state’s version if the current bill passes and, hopefully, they will understand that their clause actually represents a measure introduced to prevent discrimination in the public school system. Let’s keep public funds in public schools.