Blog Post

Needy Kids 1, Anti-Catholic Bigots 0 Blaming the victim is a poor method of constitutional interpretation, particularly when it comes to discriminatory laws.

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Ryan Colby 202-349-7219

By Diana Verm, Legal Counsel

As of last Thursday, low-income schoolchildren won’t have the specter of religious discrimination hanging over their chances for a scholarship in Colorado, at least for the time being. In a major victory for religious freedom, the Colorado Court of Appeals yesterday upheld a Choice Scholarship Program that allows students to apply for partial scholarships to attend a private school of their choice, including some religious schools.

The Program had been challenged by the ACLU and Americans United for Separation of Church and State for supposedly violating Colorado’s “Blaine Amendment,” a state constitutional provision that forbids state aid to “sectarian” institutions. Similar to racist Jim Crow laws enacted during the same time period, Blaine Amendments are the hallmark of a nineteenth century movement of anti-Catholic hostility that attempted to purge “sectarian,” or Catholic, influence from the public square, especially public schools. The movement was led by Senator James G. Blaine, who pushed an amendment to the U.S. Constitution that would have mandated discrimination against religious groups; it failed nationally but was inserted into many state constitutions.

The Becket Fund filed an amicus brief at the Court of Appeals highlighting the anti-Catholic sentiments behind the Blaine Amendment and the constitutional implications of discriminating against religion through legislation. In a thorough and well-reasoned opinion, the Court of Appeals did not address that question, holding that the scholarships didn’t violate the Blaine amendment at all: scholarships for the purpose of supporting students and parents do not necessarily constitute aid to religious schools. This is wise judging, because relying on the Blaine Amendment would have given renewed power to the anti-Catholic bigotry that motivated Colorado’s Blaine Amendment. What’s worse is that would have harmed Colorado kids today.

The dissenting judge, however, addressed the Becket Fund’s arguments head on. He admitted that there was obvious Catholic hostility behind the adoption of the Colorado Blaine provision. But he said that this hostility was the fault of the Catholics themselves because they asked for a equal seat at the table in state funding formulas. Blaming the victim is a poor method of constitutional interpretation, particularly when it comes to discriminatory laws. Could Jim Crow laws have been justified because African-Americans were publicly asking for the right to vote? Should needy schoolchildren today suffer because Catholics were too uppity in the 1870s? That kind of rule makes no sense, and the majority rightly rejected it.

It is likely that this case will be appealed to the Colorado Supreme Court. Let us hope that the Supreme Court will follow the Court of Appeals in upholding education equality in Colorado.