No, the Blaine Amendment isn’t ‘null and void.’ Here’s why

Legal analysis from Idaho’s last two attorneys general refutes Republican lawmakers’ recent claims that the state’s Blaine Amendment is ineffective.

Last week, Rep. Elaine Price and Sen. Brian Lenney introduced a joint resolution to repeal the Blaine Amendment, a section of the Idaho Constitution — and dozens of other state constitutions — that bars taxpayer funds from benefitting private religious schools. 

The provision is “null and void,” Price said, thanks to recent U.S. Supreme Court rulings on alike prohibitions in Montana and Maine. Other lawmakers who support private school vouchers have made similar claims in recent years, but Price, R-Coeur d’Alene, went a step further: Two Idaho attorneys general have agreed that Blaine is “no longer effective,” she told the House State Affairs Committee.

Rep. Elaine Price, R-Coeur d’Alene

That’s not true, according to legal analysis and advice from the offices of Attorney General Raúl Labrador and his predecessor Lawrence Wasden, who are both Republicans. The Idaho attorney general’s office since 2020 has held that the Supreme Court rulings on “no-aid provisions,” like the Blaine Amendment, are state-specific. 

In other words, whether an Idaho private school voucher program runs afoul of the Blaine Amendment will have to be settled in court on its own merits. 

“The U.S. Supreme Court did not address Idaho’s no-aid provision, much less even cite it,” former Deputy Attorney General Brian Church wrote in a 2020 opinion, which Labrador recently said he agrees with. 

The effectiveness of the Blaine Amendment is highly relevant to Idaho’s ongoing, bitter debate over whether taxpayer funds should go to private schools, most of which are faith-based. 

The recent Supreme Court rulings were considered major victories for the national “school choice” movement that’s pushing the Idaho Legislature to enact private school tuition assistance programs, often called school vouchers. But the Blaine Amendment — a provision as old as the state itself — remains a barrier. 

“If the Blaine Amendment was a dead letter, why would they think it’s necessary to come up with a constitutional amendment?” said Jim Jones, former Idaho Supreme Court justice and attorney general. If a school voucher program is adopted, “there’s very well going to be a lawsuit brought to try and stop it,” he said. 

What the Supreme Court decisions mean for Idaho

In 2020, Wasden’s office issued an opinion analyzing the Idaho implications for the U.S. Supreme Court’s decision in Espinoza v. Montana Department of Revenue.

The case involved a Montana tax credit program, created in 2015, that helps private school families pay tuition. The state barred tax credit recipients from using the benefit at religious schools; Montana’s constitution also prohibits public funding for religious schools. 

After a lengthy legal battle, the U.S. Supreme Court ruled that Montana’s decision to exclude religious schools from a program accessible to secular private schools was discriminatory and violated the Equal Protection Clause of the federal constitution. In 2022, the court similarly ruled that a Maine tuition program must include religious schools if it also benefits secular private schools. 

The Espinoza ruling “only addressed” Montana’s no-aid provision and “only held it was unconstitutional as applied to the particular scholarship program,” Church wrote in the opinion from Wasden’s office. The Espinoza ruling did not decide whether all no-aid provisions are constitutional, “either on their face or as applied in a particular situation,” he wrote.

Labrador believes the Montana case had a “significant impact” on Idaho’s Blaine Amendment, and he agrees with the legal analysis from Wasden’s office, said Dan Estes, Labrador’s spokesman. 

In essence, if the state of Idaho adopts a law that gives a government benefit to a private entity and denies that same benefit to a religious entity solely on the basis that it is a religious entity, that law could be found to be unconstitutional,” Estes said by email. 

While the court set a precedent that likely would invalidate any private school voucher programs that exclude parochial schools, that yardstick is wielded on a case-by-case basis. 

“Of course, the Idaho Legislature can initiate the process of removing a section of the Idaho Constitution at any time,” Estes added.

Sen. Brian Lenney, R-Nampa

Idaho Education News shared these comments with Price and Lenney, co-sponsors on the resolution to repeal the Blane Amendment. Lenney, R-Nampa, acknowledged that the Supreme Court didn’t “directly declare” all no-aid provisions unconstitutional. 

But the “broader implications” of the court’s decisions suggest a “growing recognition of the potential unconstitutionality of such amendments when they lead to discrimination based on religious affiliation,” Lenney said by email. 

A brief legislative and legal history of the Blaine Amendment

Contrary to what its name suggests, the Blaine Amendment was not an add-on to the Idaho Constitution. It’s an original section of the document that was ratified in 1890. 

Similar provisions are found in 37 state constitutions, according to the Institute for Justice, a public interest law firm that advocates for private school vouchers. Idaho’s Blaine Amendment was adopted amid a 19th-century wave of efforts by Protestant-led legislatures to block Catholic schools from obtaining taxpayer funds. 

Blaine’s “anti-Catholic and anti-immigrant” roots are part of the reason it should be repealed, Lenney said. “It’s a symbol of a prejudiced past that doesn’t align with our current values.” (A conservative hardliner when it comes to modern-day immigration, Lenney last month called for blocking all immigrants from entering the U.S., including those who enter legally.)

Records of Idaho’s 1889 constitutional convention show the framers were motivated by anti-Catholic, and anti-Mormon, sentiments as well as broader concerns with maintaining clear boundaries between religion and the state. 

Debating against a constitutional provision that would have allowed public schools to teach the Bible, Boise County convention delegate George Ainslie said he believed in “keeping religion and state as far apart and separate as possible.”

Nearly 125 years later, the Blaine Amendment has recaptured attention, but debates around its effect on school vouchers are not new. From 1989 to 1997, three different Idaho attorneys general were asked to analyze whether the Blaine Amendment prohibited various school voucher proposals from the Legislature. None of the bills ultimately became law.

Jones’ office in 1989 issued guidance that said a voucher plan would likely be unconstitutional under the Blaine Amendment, if it included religious schools. Today, Jones is actively opposing voucher proposals and has threatened to sue if one is adopted.

Jim Jones

“Public schools are there to give everybody an opportunity to get educated,” Jones told EdNews. “It’s worked pretty darn well for over a century, and this idea of bleeding the government trough, if you will, to pay for private schools is just baloney.”

Meanwhile, the Idaho Supreme Court has infrequently analyzed the Blaine Amendment. In one of the few cases that took an in-depth look at the provision, Idaho justices ruled that Blaine precluded a school district from offering bus services to private school students. 

In the 1971 opinion, justices wrote that they were “impressed” by the Blaine Amendment’s “restrictive language.” The framers of Idaho’s constitution “intended to more positively enunciate the separation between church and state than did the framers of the United States Constitution,” justices wrote.

What’s next? 

Ultimately, Idaho voters have the final word on whether to repeal the Blaine Amendment. Altering the constitution requires majority support from voters.

But first, the proposal has to clear the Legislature — with two-thirds support from both the House and Senate. An identical resolution last year never made it out of the Senate State Affairs Committee. 

At the same time, multiple bills that could test the Blaine Amendment’s limits are expected this legislative session. Sen. Lori Den Hartog, R-Meridian, and Rep. Wendy Horman, R-Idaho Falls, earlier this month previewed their proposal to create tax credits that cover private school expenses.

The House State Affairs Committee last week voted to introduce Price and Lenney’s joint resolution, which means it will likely return to the committee for a public hearing in the coming weeks.

Ryan Suppe

Ryan Suppe

Senior reporter Ryan Suppe covers education policy, focusing on K-12 schools. He previously reported on state politics, local government and business for newspapers in the Treasure Valley and Eastern Idaho. A Nevada native, Ryan enjoys golf, skiing and movies. Follow him on Twitter: @ryansuppe. Contact him at [email protected]

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