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St. Thomas Law Review

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Article

Abstract

Anti-Catholic prejudice that gave rise to so-called Blaine Amendments in myriad state constitutions is widely known. These amendments provide, in essence, that no public revenue may pass directly or indirectly in aid of a sectarian institution. Lesser known is the relationship explored in this article between the Blaine Amendment and racial prejudice. In Florida, the two were patently interrelated. Before ratification of the State's 1885 Constitution, freedmen could receive a quality education at integrated common schools or private religious schools. The "separate but equal" doctrine foreclosed the first choice and the Blaine Amendment limited the second. Not coincidentally, the private religious schools teaching freedmen at the time were sponsored by carpetbaggers, Protestant abolitionists, and Catholics. Thus, the separate but equal doctrine and the Blaine Amendment together became a juggernaut of racial and religious oppression impacting primarily the African-American community. Today, Florida courts refer to the Blaine Amendment in far more benign terms as a "no-aid" provision. But this article reveals that the Amendment's framers would not have recognized their clause as such. They were not in favor of strict separation as are most of the Blaine Amendment's supporters today. Rather, they generally favored a Protestant establishment of religion even in the public schools. The test Florida courts have adopted to interpret Article I, Section 3, permits in effect the just-about-right religious to participate in publicly-funded programs, but not the too-religious. Because this is reminiscent of the Goldilocks tale, the article refers to this test as the "Goldilocks test" for compliance with Article 1, Section 3. Employing the Goldilocks test to interpret Article I, Section 3 not only perpetuates a prejudicially motivated amendment, but also impinges upon state and federal precedent against preferring one religion over another and entangling the state in church law, policies, and regulations. Therefore, the fact that the Blaine Amendment was readopted in the 1968 Constitution and passed on by subsequent constitutional conventions cannot and should not save this interpretation of the clause. It should not save it, because the Amendment as refrained will cause even more public discrimination than as proposed with racial and religious animus. In addition, it would severely undercut state and local government's ability to provide social services to the poor and needy from healthcare and substance abuse treatment to transitional housing and eldercare.

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