Can’t Blaine a State for Trying: Writing a Constitutional Blaine Amendment After Carson v. Makin

This comment examines the constitutional future of state Blaine-style Amendments following the Supreme Court’s decision in Carson v. Makin. While recent Free Exercise Clause decisions have largely invalidated state provisions that deny public benefits to institutions based on their religious status, the comment argues that a distinct category of amendment remains constitutionally viable: provisions that prohibit public funding of all private schools, regardless of religious affiliation. Through a historical and doctrinal analysis of Blaine-style Amendments, the development of the Supreme Court’s “play in the joints” jurisprudence, and the Court’s decisions in Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Department of Revenue, and Carson, the author contends that modern Free Exercise doctrine permits states to decline funding private education altogether, provided they do not discriminate on the basis of religion. The comment focuses on Michigan’s constitutional amendment, which bars public aid to all private elementary and secondary schools rather than targeting religious institutions specifically. Comparing Michigan’s approach with similar provisions in Alaska and Massachusetts, the author argues that Michigan’s amendment best withstands contemporary constitutional scrutiny because it rests on a public-private distinction rather than a sectarian-nonsectarian distinction. The comment further maintains that Michigan’s amendment survives claims of unconstitutional religious animus because it was adopted and later reaffirmed long after the anti-Catholic sentiment associated with the original federal Blaine Amendment. The author concludes that Michigan’s model provides a constitutional blueprint for states seeking to limit public funding of religious education while remaining consistent with modern Free Exercise jurisprudence and maintaining a strong separation between church and state. [This abstract was written by Microsoft Copilot, a generative artificial intelligence.]