Eleven years ago this week, the Supreme Court handed down a ruling in Locke v. Davey that continues to have a detrimental impact on religious liberty. But the seeds for that ruling were planted 140 years ago, in another attempt to curb religious liberty.

When James Blaine introduced his ill-fated constitutional amendment in 1875, he probably never would have imagined the unintended consequences it would have over a hundred years later. Blaine wanted to prohibit the use of state funds at “sectarian” schools (a code word for Catholic parochial schools) in order to inhibit immigration. Since the public schools instilled a Protestant Christian view upon its students, public education was viewed as a way to stem the tide of Catholic influence.

While the amendment passed by a large majority (180-7) in the House, it failed by a tiny margin (4 votes) in the Senate. Supporters of the amendment, however, pressed the issue at the state level, often making it a prerequisite for statehood. The measure finally found its way into 37 state constitutions, including Washington State.

Fast-forward to 1999, where a Washington high school student Joshua Davey applies for the state sponsored “Promise Scholarships.” According to a press report in 2004:

Davey qualified, and in October of 1999 he received an award certificate for a a $1,125 grant and a letter from Governor Gary Locke congratulating him. But Davey, who had enrolled at Northwest College, a munity of faith and learning” in Kirkland, Washington, declared a double major in Pastoral Ministries and Business Management. Within weeks, the state’s Higher Education Coordinating Board (“HECB”) sent a memorandum to Northwest announcing that the scholarship was being withdrawn because state law provides that “students who are pursuing degrees in theology are not eligible to receive any state-funded student financial aid, including the new Washington Promise Scholarship.”

Davey contested the policy on grounds that it “violates the Free Exercise and Free Speech clauses of the First Amendment of the U.S. Constitution, and federal and state constitutional rights to equal protection under the law.” The case made it all the way to the Supreme Court where, in a surprisingly bizarre decision, the court upheld the ruling that generally available scholarship benefits could be denied to students who want to study theology.

The student who wanted to study Protestant theology was prevented from keeping the scholarship because of a law intended to discriminate against Catholics. He was denied by a Court that used a precedent based on religious discrimination to justify further religious discrimination. In 2004, Notre Dame law professor Rick Garnett argued that, “[the Court] has authorized discrimination by state actors against those who take their religious faith seriously.”

While anti-Catholic sentiment has been all but purged from Protestantism, the vestiges of this religious bias remain in the dusty tomes of our nation’s law books. What a strange legacy this former congressman from Maine has left us. As Blaine biographer Charles Russell said, “No man in our annals has filled so large a space and left it so empty.”