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Noah Feldman

Kavanaugh’s View on Religious School Funding Isn’t a Tipping Point

The Supreme Court probably has enough votes already to overturn state laws that were the product of anti-Catholic bias.

Attitudes are changing.

Attitudes are changing.

Photographer: Eric Thayer/Getty Images

The latest concern from liberals about the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court is that he might vote to strike down state constitutional provisions and laws that bar direct funding to religious schools. It’s probably accurate, but the issue is more complicated than you might think. The state provisions can be traced in part to anti-Catholic prejudice going back 150 years or more. Under current Supreme Court doctrine, these provisions are already vulnerable to being overturned as religious discrimination — whether Kavanaugh is confirmed or not.

Thirty-eight state constitutions have provisions known as “Blaine amendments” or baby Blaines. Others have analogous legislation. The provisions typically specify that no state money shall be disbursed to “sectarian” institutions, including schools.