Idaho’s Constitution and the separation of church and state

By Leonard Hitchcock

Rep. Ronald Nate, R-Rexburg, a professor at Brigham Young University-Idaho, has brought before the Legislature a proposal to alter the Idaho Constitution. The text he wishes to change is Article IX, section 5, which prohibits any governmental body from disbursing any public monies “in aid of any church or sectarian or religious society … or to help support or sustain any school, academy, seminary, college or university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever.” He argues that there is an urgent need to rewrite this text because Idaho currently provides scholarships to students who may choose to attend one of the state’s church-affiliated colleges, among them BYU-Idaho and Northwest Nazarene. Nate thinks that if the state’s right to provide such assistance was challenged in court, there is a good chance that the state would lose the case. No doubt Nate’s concern springs, in part, from his self-interest in this matter, but I think that he has good reason to predict that result, because Idaho’s constitution mandates a rigorous separation of church and state in the realm of education.

Why does Idaho take that position? In part, it has to do with the colorful, and rather unsavory, history of the text in question. Article IX, section 5 is often referred to as the Blaine amendment. That’s a misleading label because the text was not the result of an amendment to the Idaho constitution, by someone named Blaine or anyone else; it was there, in almost its current form, in the original constitution of 1889. The text was, however, a version of a proposed amendment to the United States Constitution that came before the congress in 1874, submitted by Republican House member James G. Blaine.

That amendment passed in the House but failed to acquire the necessary 2/3 vote in the Senate, and consequently was dropped, at least at the federal level.

But many states decided to incorporate the provisions of the Blaine amendment in their own constitutions, either through amendment, or, as in Idaho’s case, by including them in the original document.

Blaine was a very prominent politician in the Republican Party and had presidential aspirations. His motives in introducing an amendment to prevent the federal government and the states from using public funds to assist religious schools included, it seems, distracting public attention from President Grant’s scandal-ridden administration and promoting his own run for the presidency in 1876.

Schools were on the public’s mind in those days. The movement to create tax-payer-funded schools was well underway. Most of these schools reflected, in their curricula and teaching approach, the dominant culture of the country, which was Protestant. It was assumed that teaching civic responsibility meant teaching Protestant morality. The King James Bible was regularly utilized for classroom study. But immigration had recently brought to the U.S. a large number of Irish and German Catholics and they resented the religious bias of public schools. In some eastern cities they acquired enough political clout to obtain tax funding for their own schools. That offended the Protestants and the Republican Party took up their cause. The Democrats sided with the immigrants. When Blaine introduced his amendment, Catholics were not mentioned, but it was generally understood that they were the chief target of his proposed denial of public funds for use by sectarian schools. In short, the historical reality is that Blaine proposed the amendment in large part because he wished to curry favor with his party by exploiting the public’s anti-Catholic bigotry.

In Idaho, a version of the Blaine amendment was apparently recommended to the framers of the state’s constitution, perhaps with the implication that its absence would endanger federal approval of statehood. In any case, there is no evidence in the minutes of the constitutional convention of 1889 that Article IX, section 5 occasioned any disagreements or even discussion, though there were lively debates over other sections of Article IX that dealt with how public schools were to be funded and forbade the teaching of sectarian or religious doctrines.

The upshot of the adoption of a version of the Blaine amendment was that Idaho, along with more than 30 other states, ended up with a constitution that spelled out in some detail the degree to which government must refrain from the support of parochial or sectarian education. The strength of that directive was made evident in 1971 when the parents of parochial school children brought a class-action suit against the state for its denial of their request that public school buses transport their children. The state’s decision was based on the belief that doing so would violate the state constitution. The Idaho Supreme Court ruled that the state was correct; that the provision of such services was, in fact, incompatible with Article IX, section 5. (Epeldi v. Engelking). That ruling explains Dr. Nate’s fear regarding a suit questioning the constitutionality of state scholarships to parochial schools. Interestingly, the legislature made an effort, in 1972, to change Article IX, section 5 so as to permit the busing of parochial school children. That ballot measure failed in the general election.

The larger question raised by Nate’s proposal is this: the Blaine amendment, however objectionable its origins, must be understood as an interpretation of the federal constitution’s First Amendment, specifically, the establishment clause: “Congress shall make no law respecting an establishment of religion.” Does it, in fact, represent a plausible, or even a possible, reading of the intent of that clause?

I shall address that question in my next column.

Leonard Hitchcock of Pocatello is a professor emeritus at Idaho State University.