To: House Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: HCR 3037
Date: March 11, 2013

We appreciate this opportunity to express our support for HCR 3037.

HCR 3037 would give North Dakota voters an opportunity to remove a shameful blemish from our state’s constitution and give the people of North Dakota the right to decide for themselves questions related to public education and nonpublic schools.

The history of these “Blaine Amendments” is well-documented and some of it was provided in earlier testimony. Briefly, in reaction to the growing number of immigrant Catholics coming to the United States, nativist and other anti-Catholic politicians sought to curtail Catholic influence in the country by ensuring that only “common” schools that were Protestant in character received any public assistance. After failing by just four votes to pass Congressman James Blaine’s amendment to the U.S. Constitution, supporters of the proposal turned to the states. Both explicitly and implicitly, Blaine Amendment supporters in Congress made adoption of state Blaine Amendments in state constitutions a prerequisite for admission as a state.1 The discriminatory and prejudicial origin of these provisions has been recognized by the U.S. Supreme Court, which has called these provisions “a shameful pedigree” and one “born of bigotry” that “should be buried.”2

Beyond its origins, the sentence of Article VIII, section 5 that HCR 3037 would repeal, is itself not worthy of inclusion in the North Dakota Constitution. Very often the original intent and use of words in the state constitution is what binds future courts and, by extension, the people of North Dakota. As the U.S. Supreme Court has noted, the historical evidence is well-established that the use “sectarian” in these provisions was code for Catholic.3 The word “sectarian,” rather than “religious,” was used to distinguish the minority Catholic schools from the “common schools” which were shaped by the majority Protestant ethos.

Even today, “sectarian” is not synonymous with “religious.” “Sectarian” connotes a subset, like a “sect” or “cult.” It’s synonyms are almost exclusively negative.4 Linguist William Safire noted that “[s]ectarian is a word long associated with religion that has a nastier connotation than its synonym denominational.”5 Just as this Legislative Assembly has done in the past, it is time to remove prejudicial and bias language from our state’s laws.

HCR 3037 would also give North Dakotans an opportunity to decide whether they want to place conditions, beyond those set by the U.S. Constitution, on how the state assists in the education of children. North Dakotans may have different views on whether to allow such assistance, but they have never had the opportunity to decide that for themselves. The provision in question was imposed on the people of North Dakota as a condition of statehood by powerful outside groups acting without the interests of North Dakotans in mind and with a motive that has no place in society today. HCR 3037 is a chance to right the wrong done to North Dakota at statehood.

Accordingly, HCR 3037 is not about providing financial assistance to nonpublic schools or the parents who choose to send their children to those schools. It is not about how the state should prioritize or fund education in the state. HCR 3037 is not about the quality of nonpublic schools or the performance of their students. Even if HCR 3037 passes the legislature and is approved by the voters, it will not change any law in North Dakota.

HCR 3037 is only about two things. First, it gives the people of North Dakota an opportunity to remove from their constitution a provision “born of bigotry” and prejudicial on its face. Second, it would, if adopted, give the people of North Dakota the right to decide for themselves whether to allow any assistance to religiously-affiliated schools.

We respectfully request a Do Pass recommendation on HCR 3037.

1 Kyle Duncan, Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003). Available at: [Recaps historical record showing that North Dakota was among the new states subjected to this requirement.]
2 Mitchell v. Helms, 530 US 793 (2000); see also dissent of Justice Breyer in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), which traces the historical record of state Blaine amendments.
3 “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” Mitchell, 530 U.S. at 828.
4 The Oxford American Writer's Thesaurus lists them as: factional, separatist, partisan, parti pris; doctrinaire, dogmatic, extreme, fanatical, rigid, inflexible, bigoted, hidebound, narrow-minded.
5 “Is It Sectarian Violence, Communal Fighting or Civil War?” New York Times (Apr. 9, 2006).