WhenJames Blaineintroduced his ill-fatedconstitutional amendmentin 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 Missouri.

In this brief video Notre Dame Law professor Richard Garnett explains how these Blaine Amendments affect religious liberty today.

Such an amendment is also at the center of one of the most significant religious liberty cases to be decided in years.

The case,TrinityLutheranChurch of Columbia v. Comer,involves a religious preschool that was rejected from a state program that provides reimbursement grants to purchase rubberized surface material (tire scraps) for children’s playgrounds. The preschool was ultimately denied the grant for its playground solely because the playground belongs to a religious organization. The church is being defended in the case byAlliance Defending Freedom (ADF).

TrinityLutheranChurch in Columbia, Missouri applied for Missouri’s Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours. The

Scrap Tire Grant Program is otherwise neutrally available to a variety of nonprofits and Trinity’s application was ranked fifth out of 44 applications (in total, 14 grants were awarded).

Although the grant was for a secular use (i.e., making a playground safer), the state of Missouri halted the application process and denied Trinity’s attempt to participate in the program solely because Trinity is a church. The state based this exclusion from the program on Article I, § 7, of the Missouri Constitution, which states, “no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

The Eighth Circuit affirmed that denial by equating a grant to resurface Trinity’s playground using scrap tire material with funding the devotional training of clergy.

At its core, says ADF, the TrinityLutheranplayground case strikes at the heart of American jurisprudence, asking: What is fair play in a pluralistic society? Can a state prohibit police from responding to a burglary at a Catholic school? Can a city stop the fire department from putting out a fire at a church?

The e of the case will determine whether the government can discriminate against religious organizations and exclude them from receiving a generally available public benefit simply because they are religious. A loss could mean that religious nonprofits could be excluded from government programs meant to serve munities and even be denied basic safety services like fire and police protection, says ADF.

While the type of anti-Catholic sentiment Blaine endorsed 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.”