Vouchers for Sectarian Schools after Zelman: Will the First Circuit Expose Anti-Catholic Bigotry in the Massachusetts Constitution?

In Zelman v. Simmons-Harris, the U.S. Supreme Court ruled that an Ohio voucher program for Cleveland school children does not violate the Establishment Clause even though the program allows participation by sectarian schools. Within days after the Supreme Court released its decision, many of public education’s advocacy groups publicly expressed disappointment in Zelman’s outcome. Although Zelman settled federal constitutional questions about vouchers, voucher opponents continued fighting in the courts. Much of this post-Zelman litigation involved arguments about the legality of various state constitutional bans against public aid for sectarian education. Scholars have shown that some of these state constitutional provisions—the so-called “Blaine Amendments”—have their roots in 19th century religious prejudice. This article is in four parts. First, it describes the Zelman decision, in which the Supreme Court dismantled a major constitutional roadblock to public assistance for families sending their children to sectarian schools. Second, the article summarizes the scholarship about the Blaine Amendments, which loom now as a major legal obstacle to the implementation of voucher programs in many states. This scholarship shows that the Blaine Amendments are—to say the least—cultural artifacts of 19th century anti-Catholic bigotry. Third, the article briefly reviews two post-Zelman court cases involving “Blaine Amendments”: Bush v. Holmes and Locke v. Davey. In both cases, courts found no evidence of bigotry in the state constitutional provisions that were at issue. Finally, this article exams the case of Wirzburger v. Galvin, in which the First Circuit is considering the constitutionality of a Massachusetts constitutional provision that bars Massachusetts citizens from using the state’s voter initiative process to amend or repeal a 19th century constitutional ban against public funding for sectarian schools. The Massachusetts legislature approved this constitutional ban at a time when it was overwhelmingly dominated by the anti-Catholic Know-Nothing Party. Wirzburger provides the First Circuit an opportunity to weaken a state constitutional provision that was borne of religious intolerance and that wholly nullifies Zelman’s significance in Massachusetts. This article argues that the First Circuit should allow Massachusetts voters the opportunity to amend or repeal their state’s bigoted constitutional bar against public aid for sectarian schools