This constitution, which included a Blaine Amendment, was created in a constitutional convention under “Pitchfork Ben” Tillman, then the state’s Democratic governor, who would eventually become a U.S. Senator.
“Tillman was an avowed racist, who some argue did more to implement the Jim Crow system than anyone else in history,” Garnett and Judge said.
The state’s constitutional convention implemented a literacy requirement for voting, which disenfranchised both Blacks and illiterate whites, including many immigrants.
“Unsurprisingly, racial animus pervaded the 1895 Convention, and the historical evidence suggests that anti-Catholic fervor influenced it as well,” Garnett and Judge added.
For the many delegates to the constitutional convention who were anti-Catholic, they said, “the Blaine Amendment had the important side benefit of (in the word of one prominent Tillmanite) defanging ‘America’s most dangerous and deadly foe,’ the Roman Catholic Church.”
The law is “not just a disgraceful relic of the past,” said the Blaine Amendment critics. “(I)ts harms persist since it continues to prevent private and religious schools from receiving support that is otherwise generally available to advance their good work on behalf of the citizens of South Carolina, even when these good works are most needed in the midst of a global health crisis.”
Some legal trends appear to be moving against state Blaine Amendments.
In June 2020, the Supreme Court ruled in a 5-4 decision that the Montana state constitution’s ban on public funding of religious institutions violated the First Amendment. The provision constituted “discrimination against religious schools and the families whose children attend them,” the majority opinion stated. That case concerned a ban on students at religious schools benefitting from a state scholarship program funded by tax credits; while the state supreme court revoked the entire program, the U.S. Supreme Court ruled it did not have the authority to do so and further ruled against the state’s amendment.
In the 2017 case Trinity Lutheran Church of Columbia v. Comer, the high court decided against Missouri’s application of its Blaine Amendment, ruling that the state’s policy of barring a church of a public benefit because of its religious status violated the First Amendment.