The Interocitor

FMA and Blaine

One of the things that strikes me about the proposed Federal Marriage Amendment (FMA) is how closely it tracks the 1875 "Blaine Amendment" proposal in intent and purpose. The FMA reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The amendment is an attempt to block for all time both judicial tampering with the historic meaning of marriage, plus prevent any future democratic movement to alter same by popular will. The first goal is perhaps understandable and even laudable, the second is rather not. The proponents are largely motivated by a desire to isolate governmental approval or cachet from the practice of homosexuality, of which they generally disapprove. A noticeable portion of the proponents are rather more extreme, and would recriminalize the practice altogether.

In 1875, Senator James G Blaine* (later a Republican presidential candidate) introduced the following Constitutional amendment:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

Details of the proposed amendment can be found here. Note the political cartoon from the time reprinted there, as it clearly demonstrates what the Amendment was actually about -- nativism and oppostion to Catholicism and other non-Protestant religions. At the time public schools were not free of religion. They were generally controlled by, and served the purposes of, the overwhelming Protestant majority. Readers over the age of 50 probably experienced some of this in their own public schools -- the practice did not die out until the Warren Court rulings of the 1960's.

In any event, large numbers of non-Protestant Europeans, largely Catholic Irish and Italians, were immigrating to the US and their children were entering public schools in droves. There was great pressure to either modify the religious curriculum to accomodate these Catholics, or to allow parallel public schools where Catholicism was taught.

The Amendment itself seems to be neutral, but given the presumptions of the time, it was hardly such -- government's limitations regarding religion were only to the extent that discrimination against particular Protestant groups was barred. Protestantism was natural and right, and alternatives were to not to be given government cachet. A recent (prevailing) amicus brief to the Supreme Court's Mitchell vs Helms decision recounted the following history:

As the Catholic population in the United States grew, “sectarian” took on an even more precise, and more pejorative, meaning. In response to the waves of immigration in the 19th century, Nativist groups such as the Anti-Catholic and anti-immigrant Know-Nothing Party grew in size and political power. These groups sought to ensure the ascendancy of their view of the common religion of the United States in the common schools and keep out “sectarian” competition, enacting measures such as requiring the reading of the King James Bible in public schools, and enacting measures barring any public funds going to “sectarian” schools.

The “Blaine Amendment” to the Federal Constitution, named after the notoriously Anti-Catholic presidential candidate James G. Blaine who proposed the measure in 1874, would have prevented any government funds from being used by “sectarian” (mainly Catholic) schools. The measure failed in Congress by a narrow margin, but by the early decades of the Twentieth Century, most states had either adopted, or had forced upon them by their Enabling Acts, similar provisions nick-named in Blaine’s honor. As the Arizona Supreme Court recently observed, commenting on its own “Blaine Amendment”, “The Blaine amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what was perceived as a growing Catholic menace.” Kotterman v. Killian, 972 P.2d 606, 624 (Az. 1999) (citation omitted), petition for cert. filed, 67 U.S.L.W. 3671 (U.S. Apr. 26, 1999).

While the Blaine Amendment failed (by 4 Senate votes), forms of it were written into the state Constitutions of the majority of US states, and is still being used today in an attempt to prevent local school choice by religious and other school dissidents.

It seems to me that if it was a bad idea in 1875 to use the US Constitution to require states to discriminate against religious practices the national majority found unnatural and immoral, that it is similarly wrong to do the same regarding marriage. If one really wants to prevent judicial overreach, yet avoid adding an arguable bigotry to the federal Constitution, one would be bettter off with

Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed, in the absence of specific provisions, to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups, or to unions other than that between one man and one woman.

But the current FMA is as intolerant in word and intent as Blaine's was 130 years ago.

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*Note: it is interesting to note that James Blaine lost the 1884 election by 1047 votes in the state of New York -- the destination of many Catholic immigrants.

Posted by Kevin Murphy at February 11, 2004 08:19 AM | TrackBack