Winning Wirzburger and Defeating the Blaine Amendments: Arguing Present Efficacy Instead of Past Intent

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case. This article argues that Wirzburger and other anti-Blaine litigation should experience a paradigm shift. No longer should litigators argue the Blaine’s “past intent” to discriminate against religious persons, and particularly Catholics. The 2004 Locke v. Davey decision confirms the Supreme Court’s unwillingness to affirm the animus behind the Blaine Amendments. Wirzburger and future cases should pin their claims upon the higher ground of nonpersecution, outlined in the 1993 Lukumi Babalu Aye case. The principles of neutrality, general applicability and non-exemption serve as fundamental tenets of this argumentative direction. This article argues that these tenets boost the strength of petitioner’s Constitutional claims. Wirzburger must be won. The veil of anti-Catholic discrimination must finally be lifted and the bigoted Blaine’s repealed. Only by pinning anti-Blaine litigation upon the doctrine of nonpersecution and arguing present efficacy instead of past intent, will these hopes materialize