In Part I, this Note will examine a brief history of the proposed federal Blaine Amendment, and the subsequent adoption of many State Blaines across the nation. Next, in Part II, the Note will discuss why the State Blaines are frequently debated, specifically in the context of the issue of school choice. The Note will then examine two of the main arguments against the constitutionality of State Blaines—the animus arguments and the First Amendment arguments—and will examine the strengths and weaknesses of each argument. In Part III, the Note will discuss the culmination of recent caselaw in the Trinity Lutheran opinion. Finally, in Part IV, this Note will contemplate the effect that this recent court opinion could have on attacking the constitutionality of State Blaines, particularly for advocates of school choice. This Note will ultimately argue that while the majority opinion in Trinity Lutheran does not explicitly mention State Blaines, the Free Exercise Clause jurisprudence affirmed by the opinion could strengthen the likelihood of future successful challenges to the State Blaines on constitutional grounds using a nondiscrimination argument, and will make success more likely with this argument than with an animus argument.
Margo A. Borders,
The Future of State Blaine Amendments in Light of Trinity Lutheran: Strengthening the Nondiscrimination Argument,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol93/iss5/12