According to his epitaph, one of Thomas Jefferson's proudest moments was his development of the Virginia Statute for Religious Freedom. (More so, by the same metric, than his time in the White House.) This law became the first of its kind in the nation, guaranteeing Virginians the right to exercise their faith how they pleased while protecting government from the overzealous who wished to use Virginia's halls of power as vehicles for proselytization.
The statute became an inspiration for similar legislation around the nation, and, most notably, for the Bill of Rights.
Ironically, Virginia has become a hotbed for those who wish to strip the country of the spirit of protection afforded by the language Jefferson composed centuries ago.
While recently campaigning, Cuccinelli promised to drastically change Virginia's relationship with religion by proposing to introduce an effort to repeal the Blaine Amendment.
The Blaine Amendment, added to Virginia's constitution in 1870 and re-ratified in 1971 as a result of a national political movement galvanized by Senator James G. Blaine of Pennsylvania, explicitly prohibits Virginia from offering aid to sectarian institutions. This is more specific, semantically speaking, than the U.S. Constitution's Establishment Clause, which prohibits the government from creating laws "respecting an establishment of religion." This was a historic necessity, as the amendment strengthened Virginia's own enjoinder against the abetment of religious institutions, since it was not until 1947, when the Supreme Court decided Everson v. Board of Education, that the Establishment Clause was determined to apply to states as well.
The words of this important protection read as follows:
The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society.
This, inherently, includes parochial schools and other religious institutions dedicated to education (something clarified elsewhere in Virginia's constitution).
As Virginia's attorney general, Cuccinelli is the man in charge of prosecuting those entities that choose not to follow laws such the one enumerated above.
Virginia has provisions in its constitution that explicitly bar government aid to 'sectarian' schools or institutions, including the so-called Blaine Amendment. The Blaine Amendment was passed as a result of anti-Catholic bigotry in American politics in the late 19th and early 20th centuries. Despite the U.S. Supreme Court's decision in Zelman v. Simmons-Harris, which made clear that the federal Constitution permits aid through school choice programs, Virginia's Blaine Amendment restricts the ability to enact broad-based school choice programs. A state constitutional amendment is needed that is narrowly drafted to allow for school choice programs that do not restrict parents' choices about what is best for each of their children.
Cuccinelli's reasoning seems quite specious. First, the historic explanation of the Blaine Amendment's existence is more nuanced than as presented. Moreover, the statement's reference to the Blaine Amendment does not identify which aspects of the Virginian constitution Cuccinelli hopes to see repealed. Is Cuccinelli referring solely to the words I shared earlier from Article IV, or does he hope to redact that in addition to other related language that can be found elsewhere?
Additionally, Cuccinelli fails to resolve the ambiguity offered by his position on "school choice programs." School choice programs can entail a slew of incentives like tax credits, tax deductions, scholarships, or vouchers. While all are plans that give parents money for students' educations, some fund private educations while others fund parochial educations. As I have written before, voucher programs are wont to encourage public money to be spent on religious education, and this is intrinsically inimical to the separation of church and state.
Perhaps these weaknesses are indications of an inchoate education plan. Or, given Cuccinelli's record on other social issues, perhaps the ambiguity of his language is an implicit acknowledgment that anything more specific would be patently troubling. (After all, adding to the stark irony of the situation is the fact that Cuccinelli is an alumnus of Mr. Jefferson's own University of Virginia, as ThinkProgress points out.)
To me, it seems that the latter is the case. There is no reason to remove a safeguard against the entanglement of church and state such as the Blaine Amendment except to further entangle it. If Zelman v. Simmons-Harris (2002) declared that providing parents with funds for private educations that, according to the decision, must include ample secular options, why would Cuccinelli need to see the Blaine Amendment removed? Perhaps other aspects of Virginia's constitution would need to be altered, but certainly only those dealing with the details that complicate the extant public school system. Why touch language on sectarian education so that public funds might easily support religious education?
Unless, of course, Cuccinelli's intent is to do just that.
In less than two weeks I will be living in Rhode Island -- the birthplace of American religious freedom. By the time I return to Virginia we will have elected a new governor. My sincerest wish is that each vote that is cast in this endeavor is one done so thoughtfully and with a consideration of our separation of church and state. It is clear that in order for that to happen, Ken Cuccinelli has some more explaining to do.
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