Education and the History of Religious Protection Laws in the United States

The separation of religious activities from government functions has been cherished in the United States for over 200 years. Indeed, many of our Nation’s immigrants journeyed to America to escape state sponsored religious discrimination and coercion.

Amendments to state constitutions that support this fundamental concept were adopted and continue to be enforced as a way to protect the religious freedom of all citizens. During recent years, attempts have been made to revise or to altogether delete these state constitutional amendments to facilitate the privatization of government functions, in particular, those associated with public education.

Sending children to religious schools using taxpayer funded vouchers and tuition tax credits are two strategies the privatizers view as ways to accomplish their goal but state religious protection laws stand in their way.

The following information is not intended to be a comprehensive listing of the history of U.S. religious protection law. Rather, it highlights some of the more significant efforts citizens and elected officials have undertaken to preserve a uniquely American freedom.

Bill of Rights. First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” — 
Amendment I to the United States Constitution, December 15, 1791.

[1]

Thomas Jefferson writes a letter to the Danbury Baptist Association in 1802 explaining why he did not support national days of fasting and thanksgiving. His letter contained the phrase “wall of separation between church and state,” which lead to the Establishment Clause to which we currently adhere: “Separation of church and state.” The section appearing in bold type — from his original draft — was deleted by Jefferson to avoid offending party members. [2]

“Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.” [3]

The Free School Society, a New York City group which ran non-sectarian schools, protested plans proposed by a Baptist church to open a school for poor children using public funds. The Free School Society believed public funds should not be used to support sectarian schools. [4]

The Michigan legislature adopts its church-state separation amendment to their constitution, the first to do so upon becoming a state[5] and retained similar restrictions in 1970. [6] A total of 19 states adopted similar language before Blaine proposed his Constitutional Amendment in December 1875.[7]

The Roman Catholic bishop of New York City began to lobby for government funding of the City’s Catholic schools setting off debates that lasted until 1894 when New York adopted constitutional language prohibiting the state from funding sectarian schools. [8]

First compulsory school attendance laws adopted by Massachusetts.[9]

New York followed Massachusetts’ lead by establishing a public school system. By 1918 all states had laws for compulsory school attendance.[10]

Pope Pius IX issued his “Syllabus of Errors”, repudiating the concept of religious freedom by seeking favored treatment of Catholicism by all governments. [11]

The Ohio Supreme Court ruled that the practice of Protestant Bible reading in the state’s public schools was sectarian.[12] This case was precipitated by a Cincinnati school board resolution of 1869 that prohibited religious instruction in the city’s public schools. [13]

President Ulysses S. Grant supported the idea of a constitutional amendment that would require states to establish systems of public schools free from sectarian influences and bar appropriations of tax aid to religious schools. In a speech given in September 1875 Grant said states should “Encourage free schools, and resolve that not one dollar, appropriated for their support, shall be appropriated to the support of any sectarian schools.”[14] Later that same year, Grant again advocated for a Constitutional Amendment that would result in “making it the duty of each of the several states to establish and forever maintain free public schools adequate to the education of all children . . . [and] forbidding the teaching in said schools of religious, atheistic or pagan tenets.”[15]

James Blaine proposed his amendment to the federal Constitution and introduced it in Congress on December 14, 1875. Easily passing a House vote the Amendment died in the Senate in 1876. [16]

Congress passed a law requiring that every state admitted to the Union after 1876 put a provision in its constitution stating that it would maintain a public school system “free from sectarian control.”[17]

Legislators in New York changed the state constitution, adding language to prohibit public funds from being given to religious schools.[18]

New York retains church-state separation language in revised state constitution.[19]

Florida retains church-state separation language in revised state constitution.[20]

Michigan retains church-state separation language in revised state constitution.[21]

North Carolina retains church-state separation language in revised state constitution.[22]

Montana retains church-state separation language in revised state constitution.[23]

Lawmakers held a constitutional convention to update Louisiana’s outdated constitution. Strong lobbying efforts by the Roman Catholic Church lead to the removal of the state’s religious protection law and voters then ratified the new constitution. As a result, millions of dollars in state aid have been distributed to parochial schools even though the state’s public school system has been regarded as one of the worst in the nation.[24]

Minnesota retains church-state separation language in revised state constitution.[25]

Wisconsin retains church-state separation language in revised state constitution.[26]

Sixty-two percent of voters in largely Catholic Massachusetts rejected a proposal to remove religious protection laws language.[27]

Georgia retains church-state separation language in revised state constitution.[28]

In Massachusetts, 70 percent of voters chose to retain their religious protection law.[29]

Voters in California and Michigan rejected referenda that would have repealed church-state separation language and allowed the use of publicly funded vouchers in their states.[30]

Circuit court Judge P. Kevin Davey declared Florida’s voucher law unconstitutional finding that the “clear and unambiguous” language in the state’s constitution clearly prohibits the practice of delivering public funds to religious schools. The state has appealed the ruling.[31]

The U.S. Supreme Court agrees to hear arguments resulting from Washington state’s Locke v. Davey case where a college student was denied public support to complete his theological studies..[32] On December 2, 2003, the U.S. Supreme Court began hearing arguments in the case.[33]

After the Colorado legislature passed its state funded voucher plan the Colorado PTA filed suit stating that the plan violates sections of Colorado’s Constitution that prohibit public funds from being used to support private and religious schools. Attorneys from the Colorado Education Association and National Education Association represented the PTA in the suit.[34] National organizations supported the lawsuit. They included the American Civil Liberties Union, American Federation of Teachers, American Jewish Committee, American Jewish Congress, Americans United for Separation of Church and State, League of United Latin American Citizens, National Education Association, the NAACP, National PTA, and People for the American Way Foundation.[35] On December 3, 2003, a Colorado district court decided in favor of the plaintiffs.[36]

1 About the First Amendment, The First Amendment Center

2 Jefferson’s Wall of Separation Letter, The Constitution Society

3 ibid.

4 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

5 Matthew J. Brouillette, “School Choice in Michigan: A Primer for Freedom in Education,” The Mackinac Center for Public Policy, 1999, p. 10. 

6 David W. Kirkpatrick, “The Pain of Blaine (Amendments) Is On the Wane?,” August 2003.

7 David W. Kirkpatrick, “The Pain of Blaine (Amendments) Is On the Wane?,” August 2003. Kirkpatrick listed only 18 states in his article failing to include Michigan in his list of states adopting church-state separation amendments to their constitutions.

8 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

9 ibid.

10 ibid.

11 ibid.

12 ibid.

13 Steven Samson, “Christianity in Nineteenth Century American Law,” ANTITHESIS, May/June 1991 – Volume 2, Number 2. (No longer in print) In Board of Education of Cincinnati v. Minor, 23 Ohio St. 211 (1872), the Ohio Supreme Court upheld the Cincinnati Board of Education decision to bar religious instruction in the public schools. 

14 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

15 ibid.

16 The Blaine Amendment, The J. M. Dawson Institute of Church-State Studies, Baylor University 

17 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

18 ibid.

19 Duane Motley, School Choice and the Blaine Amendment, New Yorker’s Family Research Foundation

20 The Blaine Diversion, People For the American Way

21 ibid.

22 North Carolina Constitution, Article IX, Section 6, 7 

23 Montana Constitution, Article X, Section 6

24 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

25 Minnesota Constitution, Article I. Article I, Sect. 16, (generally revised Nov, 5, 1974)

26 Wisconsin Constitution, Article I. Article I, Sect. 18, (as amended Nov. 1982) 

27 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

28 The Blaine Diversion, People For the American Way 

29 Rob Boston, “The Blaine Game,” Church & State, September 2002, Americans United for Separation of Church and State.

30 ibid.

31 Florida Voucher Law Struck Down Again, The Freedom Forum, August 5, 2002

32 Resources on Locke v. Davey, The Pew Forum on Religion & Public Life 

33 ibid.

34 What’s New?, Where’s the lawsuit now?, Colorado Education Association 

35 Constitutionality of Voucher Program Challenged, CEA press release 

36 Colorado Voucher Law Struck Down by District Court, People For the American Way