Document Type

Article

Publication Date

2002

Abstract

In December 1875, President Ulysses S. Grant delivered his last annual message to Congress. He warned of “the dangers threatening us” and the “importance that all [men] should be possessed of education and intelligence,” lest “ignorant men . . . sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.” He recommended as “the primary step” a constitutional amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all of the children” and “prohibiting the granting of any school funds, or school taxes . . . for the benefit of or in aid . . . of any religious sect or denomination.” There was no mistaking what President Grant referred to when he mentioned “demagogue,” “priestcraft,” and “religious sect” in connection with public education. Since the Civil War, the political influence of Catholics had become an important force in America, and in many states Catholics had sought public funding for their schools and charities.

Congress responded promptly. Within a week, Representative James Blaine, the powerful former Speaker of the House, introduced an amendment that would become known as “the Blaine Amendment,” which provided that “no money raised by taxation in any State for the support of public schools . . . shall ever be under the control of any religious sect.” In August 1876, the House of Representatives approved the bill with the necessary two-thirds vote. The proposal, however, received a majority but not a two-thirds vote in the Senate and failed.

Although Congress never sent the Blaine Amendment to the states for ratification, the states reacted to the national attention paid to the question of public financing of sectarian schools by adopting their own “Little Blaine Amendments.” Between 1840 and 1875, nineteen states adopted some form of constitutional restriction on sectarian institutions receiving state funds; by 1900, sixteen more states, plus the District of Columbia, had added such provisions. Nevada was no exception. In 1877, the Nevada Legislature proposed amending the Nevada Constitution to provide that “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purposes.” The amendment, Article 11, Section 10, became final in 1880.

Like the Little Blaine Amendments states adopted across the United States, Nevada's Little Blaine Amendment responded to controversy in Nevada over public funding of Catholic institutions. For years the legislature had funded the Nevada Orphan Asylum, the largest orphanage in the state, operated by the Sisters of Charity in Virginia City. In 1882, in Nevada ex rel. Nevada Orphan Asylum v. Hallock, the Nevada Supreme Court held that the new amendment barred the legislature from making any future contributions to the orphanage. No Nevada court has had occasion to construe Section 10 since Hallock.

Attention has again focused on public funding of sectarian institutions, including schools and charitable activities. More importantly for Nevada, in 1999, the legislature authorized cities and counties to donate money or supplies to nonprofit organizations “created for religious, charitable or education purposes.”

The U.S. Supreme Court has shown increased disposition to approve creative programs under which sectarian institutions or religiously motivated persons can participate on an equal basis in public programs. As courts hear challenges to the constitutionality of these programs under the First Amendment to the U.S. Constitution, they have also had to confront—many for the first time—the legacy of post-reconstruction anti-Catholicism: Little Blaine Amendments.

The authors consider the effect of Article 11, Section 10, of the Nevada Constitution on any “charitable choice,” school voucher, or similar program that might be proposed in Nevada.

Publication Citation

2 Nev. L.J. 551 (2002).

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