Section 6. No money shall be drawn from the treasury, for the benefit of any religious or theological institution.
This provision is generally what is known as a Blaine Amendment. The Blaine Amendments were generally passed out of a fear of the Catholic Church. Many Protestants had a fear of the incoming masses of Catholics and were afraid that the Catholics would take over the schools.
A prominent case involving this provision was State ex rel. Johnson v. Boyd, 28 N.E.2d 256 (Ind. 1940). It involved a situation where three Catholic schools educating about 800 students in Vincennes were going to close in the 30s. The City adopted a resolution and essentially assumed operation of the schools under much the same framework as had existed when the schools were formally designated as parochial schools.
In addition to other pictures the school rooms in each of said buildings had hanging on the walls, in view of said students, a picture of Jesus, The Holy Family, The Crucifixion, and George Washington. They also each have an American Flag and a Holy Water fount, in which is kept Holy Water for the use of the pupils. While teaching the teachers wore the characteristic robes of the orders to which they belonged and the sisters always wore a rosary and crucifix in view of the pupils.
On the grounds near each of said schools there is located a Roman Catholic Church, a rectory or Priests’ Home and a Sisters’ Home. Each morning immediately prior to the beginning of the school the pupils of each room were caused to attend at the nearby church where they were given religious instructions for thirty minutes by the parish priest. This particular service is said to be voluntary. So far as shown no pupil attending any of said schools has refused or failed to attend such morning services for religious instruction.
The teachers were all Catholic Sisters and Brothers who wore th e dress of their religious orders while teaching.
Surprisingly, the Supreme Court found no violation here. They said that as long as the teachers held a valid license and taught state curriculum, it didn’t matter that the teachers expressed their religious beliefs or that the school facilities were donated by religious institutions.
My quick review of the Westlaw annotations didn’t show any rulings by state courts under this provision of the Constitution that declared some government practice unconstitutional. However, there were one or two federal court decisions that did. So, this provision seems mostly toothless.
Doug:
Thanks for illuminating the history behind the Blaine Amendment that Indiana inserted into its constitution. I remember hearing a disussion about Johnson v. Boyd at an ICLU continuing legal education forum. In the 1930s, the public schools in Indianapolis went broke and turned to religious orders to keep the schools going. Maybe, tough times made for tough law. The Indiana Supreme Court, sitting just down the road from these schools, could have forced their closure if it upheld the challenge. Remember, this was when Christian school prayer was the rule not the exception in public schools. Protestant and Catholic kids were already praying in public schools, being led by their public school teachers. I suspect the Catholic takeover fears were still at work in Johnson. Fortunately, the Catholics did not overplay their hand. The bit about religious instruction being voluntary foreshadows the constitutionally accepted practice today of children leaving school grounds during the day for off-site religion classes. Now, one slight preference in favor of religion, however, will get you shut down by a federal court. Also, remember this Johnson case got going before the U.S. Supreme Court decision in Everson which incorporated the First Amendment through the Fourteenth Amendment, making it applicable to states. So, your only shot back then at a challenge to state action in this type of case was to go in under the state constitution.
Here is the irony about Article I, Section 6 today: If you want to prevent government support for religious organizations, you have lots of authority for that under the First Amendment cases. So why do we need Section 6? As you know, you can only get more such prevention — never less — under the state constitution. Does this mean that we Hoosiers champion the idea that Indiana goes further than the liberal Warren and Burger SCOTUS in blocking public support for religious organizations? Although I am OK with that idea, I don’t believe that is a widely held view statewide. Why not? Because the Blaine Amendments targeted one sect — Catholics, and we don’t have as many enemies as we used to. Although Section 6 is intellectually defensible, historically it was not meant to restrict the dominant, mainstream, Protestant Christian power structure. That power structure has broken down over time, but many peoople still long for the good old days of school prayer. So today we have a very simple, easy to understand prohibition against support of religious organizations, chiseled deep into our constitution, which could be used to go further than the First Amendment, but in all likelihood will not be used for that purpose.