(CNSNews.com) - State constitutional amendments adopted in the 19th and early 20th centuries as "anti-Catholic" measures are now preventing states from enacting school voucher programs that would help parents pay for private schools, according to testimony delivered Friday to the U.S. Commission on Civil Rights.
Thirty-five states have amendments prohibiting state funding of "sectarian" schools. They are often called "Blaine Amendments," a reference to U.S. Rep. James Blaine, who in 1875 led an unsuccessful effort to add the amendment to the U.S. Constitution.
The original effect of the amendments was to prohibit funding of Catholic schools that were established as an alternative to the non-denominational Protestant education being offered in the early public school system. As religion was gradually pushed out of public schools, the amendments came to be applied more broadly, prohibiting funding of any religious school.
The amendments now pose a major hurdle for proponents of school choice who believe religious schools offer better educational opportunities for poor families who could not afford private tuition without government vouchers.
Anthony Picarello, vice president of the Becket Fund for Religious Liberty, told the U.S. Commission on Civil Rights that Blaine Amendments are "the last constitutional weapon available to attack democratically enacted, religion-neutral school voucher programs or social service programs that contract with faith-based providers."
Opponents of school choice have tried to overturn voucher programs under the Establishment Clause of the First Amendment, which requires Congress to "make no law respecting an establishment of religion."
The Supreme Court, however, ruled in Zelman v. Simmons-Harris (2002) that programs allowing parents to choose religious schools from among a pool of private and charter schools does not violate the First Amendment.
Richard Komer, a senior litigation attorney at the libertarian Institute for Justice, testified that "as long as we persist in funding the vast majority of our children's educations through the existing public school model, this hideously expensive failure will continue."
He pointed to successful school voucher programs like the one in Milwaukee, Wis., established in 1995. Komer said the system has increased student performance and has challenged the public schools to provide better education due to the competition with private schools.
Others argued that Blaine Amendments serve an important purpose of keeping a "wall of separation" between church and state and said they wouldn't sacrifice that principle to fix problems with the education system.
"I don't think I should have to pay for the education of divinity students or programs which subsidize religion-based schools," American Atheists President Ellen Johnson said. "I do not believe that any American should be compelled to finance, directly or indirectly, religious schools, which are simply extensions of churches."
She said Blaine Amendments "express the noble philosophical and political convictions the Founders -- men like Jefferson and Madison -- enunciated for America," namely that "no one should be burdened with the support, direct or indirect, of religious establishments."
Hollyn Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said she supports Blaine Amendments because they protect religious institutions from government interference. She added that she would not sacrifice the principle of separation of church and state for improvements in the public education system.
"I am not willing to sacrifice the one for the other," she said.
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