LIBERTY LEGAL JOURNAL Spring/Summer 2016 | Page 18

BIDDING BYE TO BLAINE:
WHY V.A. CONST. ART. VIII, § 10 VIOLATES FREE EXERCISE
by Christopher Collins
In 1875, President Grant suggested amending the U.S. Constitution
to prohibit public funds from being used to support private sectarian
education.1 At the time, “sectarian” meant Catholic.2 In response to
perceived hostility to their faith, many Catholic parents enrolled their
children in parochial schools and sought state support for their schools,
as well.3 Unlike public schools today, American schools in the 1870s not
only permitted but promoted religious expression,4 so long as it was
Protestant in character. At the time, nearly every private religious school
in America was affiliated with the Catholic Church.5
Recognizing the political opportunity the situation presented, House
Speaker George Blaine introduced a constitutional amendment a week
later prohibiting public funding of private sectarian schools.6 Blaine
eventually secured his party’s nomination for president in 1884, losing
a very narrow race to Democrat Grover Cleveland.7 Blaine’s presidential
campaign is infamously remembered for labeling Democrats the party of
“Rum, Romanism and Rebellion.”8
The proposed amendment passed the House of Representatives by a vote
of 180-7 with little debate, but fell four votes short of receiving the required
two-thirds support for passage in the Senate.9 Undeterred, Congress passed
the Enabling Act,10 which conditioned admittance to the Union on
incorporating language from the Blaine Amendment into a state’s
constitution.11Ultimately thirty-seven states adopted Blaine language.12
Virginia’s state Blaine, Article VIII, § 10, was initially adopted as Article
IX, § 141 of the 1902 Virginia Constitution.13 The provision’s sponsor,
Wayland Dunaway, played on anti-Catholic sentiment within the convention to gain support for his proposal.14 The 1902 Convention was
convened to replace the Reconstruction-era 1870 Constitution15 and reasserted the dominance of white Protestants after three decades of federal
oversight.16 Lynchburg Delegate Carter Glass declared the purpose of the
1902 Convention when he announced: “‘Discrimination! Why that is
precisely what we propose; that, exactly, is what this Convention was elected
for—to discriminate…’”17 Ultimately, Dunaway manipulated the “complex of fears and hates” at the Convention to generate enough support to
pass his proposal by a vote of 33-26.18
State Blaines enjoyed widespread public support so long as public education remained basically Protestant in character. After all, public schools
read from the same Bible, said the same prayers, and reinforced the
same moral values that were taught in most churches. That changed
in the early 1960s when the U.S. Supreme Court struck down public
school-sponsored prayer in Engel v. Vitale19and public school-sponsored
Bible reading in Sch. Dist. of Abington Twp., Pa. v. Schempp.20

page 18 | LIBERTY LEGAL JOURNAL | SPRING/SUMMER 2016

This rapid secularization of the public school system alarmed both Protestants and Catholics alike.21 Noted evangelist Billy Graham publicly
condemned the decision, as did Cardinal Spellman22 and the Rev. Jerry
Falwell.23 Republican congressman Frank Becker labeled Vitale “[t]he
most tragic [decision] in the history of the United States,” an opinion
that Democrat Sen. Sam Ervin echoed.24 “These decisions left many
Protestants—especially evangelicals—believing that the public schools
were no longer allies in reinforcing core religious beliefs.”25
In response, a new wave of private Christian schools spread across the nation.26 Ironically, the monopoly of public education that once secured the
prominence of Protestant doctrine in public education was turned against
religious influence generally to freeze out Catholics and Protestants, alike.
As an increasing number of Protestant schools were added to the ranks
of private Catholic schools, the once maligned idea of using tax dollars to
support private religious education became far more appealing.27
Initially, opponents claimed that funding religious schools would violate
the Establishment Clause of the U.S. Constitution, but the Court laid
those fears to rest in 2002 when it decided Zelman v. Simmons-Harris.28
In Zelman, the Court clarified that a voucher program that relied upon
the “true private choice” of paren