Florida voters to decide whether to alter church-state separation

A pair of proposed changes to Florida’s Constitution promise to open the door to increased state public financing of religious service providers and, in particular, of parochial schools.

Florida voters will decide this year whether to remove an amendment to the state’s constitution known as its “no-aid provision” that currently prohibits taxpayers’ money from going to religious groups, and to add new language that would prevent the state from using religion as a basis for excluding organizations from offering public programs. And a state commission will discuss whether voters should also consider a constitutional change that would expressly authorize public funding for private providers of health care, education and other services.

The proposals come two years after a Florida Supreme Court struck down a school voucher program that had been heralded by then-Gov. Jeb Bush. An intermediate level state court had relied on the no-aid provision— also known as a Blaine Amendment — in striking down the voucher program, which included religious schools. That provision prohibits public funding of religious entities. The state Supreme Court did not address whether the voucher program violated the no-aid provision and instead ruled against the Opportunity Scholarship Program as being in violation of the Florida Constitution’s so-called “education provision,” which requires the state to provide a “uniform ... and high quality system of free public schools.”

Together, the proposed constitutional changes would invalidate both provisions that blocked the voucher program from going forward. For either proposal to ultimately become law, at least 60 percent of Florida voters must approve of them.

On March 25, the state Taxation and Budget Reform Commission voted 17-7 to put the proposed change to Florida’s no-aid provision before voters. The proposal was put forth by commission member Patricia Levesque, who is also executive director of the former governor’s education policy organization, the Foundation for Florida’s Future, a proponent of school vouchers.

Supporters of the proposed constitutional change say it would protect the state’s use of religious providers for all sorts of government-funded programs, including education, health and social services. Current programs provided by faith-based organizations with public dollars are vulnerable to lawsuit, they say, especially because the lower court ruling in the school voucher case was not overturned.

“Fundamentally, we are concerned about the existence of the discriminatory language and we believe that it should not be there,” Mike McCarron, executive director of the Florida Catholic Conference, said of the state’s no-aid provision. “Many government-sponsored programs have as their end a secular purpose, yet if a religious group is involved in it ... they run the risk of it being declared unconstitutional.”

Opponents claim the measure is a dangerous move toward government promotion of religion. David Barkey, an attorney with the Florida chapter of the Anti-Defamation League, said he fears the proposed constitutional change will permit public dollars to finance overtly religious programs and organizations that discriminate against people who do not share their beliefs.

“I read it as constitutionally mandating a Florida faith-based initiative without any antidiscrimination or government-entanglement safeguards,” Barkey said.

Howard Simon, executive director of the American Civil Liberties Union of Florida, said those who favor removing the Blaine Amendment from the Constitution often falsely argue that all religiously operated social service programs in the state face the threat of elimination by lawsuit. But he said programs like Catholic Charities, Lutheran Social Services, and Jewish Family Services are not threatened because they operate like secular nonprofits: They do not proselytize, do not discriminate in whom they serve, and do not give preference to members of their own faith when hiring.

“What is threatened (by the Blaine Amendment’s existence) is a religious provider that wants to require participation in religious programs as a condition of delivering aid to the poor or the troubled. Or a religious social service program that wishes to only serve members of their parish. Or a religious social service program who wants to discriminate on who’s hired,” Simon said. “That is a radically different proposal than is at issue here, not the decades-and-decades-old contractual arrangements with religiously affiliated social service programs who agree by entering into the contract to serve the community on a secular basis.”

The proposed change to the no-aid provision would strike the following language from the state’s constitution: “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”

That language was added to the state’s Constitution in 1868, amid a national wave of anti-Catholic sentiment that

fueled the addition of similar amendments in state constitutions throughout the country.

The amendments, named after a U.S. senator from Maine who tried but failed to get similar language added to the U.S. Constitution, erect a higher wall of church-state separation than required by federal law.

In addition to removing the Blaine Amendment, the proposed change would add the following sentence to Florida’s Constitution: “Individuals or entities may not be barred from participating in public programs because of their religion.”

According to a Taxation and Budget Reform Commission staff analysis, the proposed changes might protect from lawsuits government programs that provide funds to religious organizations, and also result in the use of more faith-based organizations to provide government services.

J. Robert McClure III, president and chief executive of the Florida-based James Madison Institute, an advocate of limited government, provided testimony to the commission on the effect that the proposed change might have on the service market.

“We felt like the change would allow for more competition, as opposed to a government monopoly” on social services, McClure said in a telephone interview with the Roundtable on Religion and Social Welfare Policy. “When government is the only source of a service, you have greater inefficiency, lower quality service and greater cost and waste.”

Florida Taxation and Budget Reform Commission Chairman Allan G. Bense also sits on the James Madison Institute’s board.

If the state’s Blaine Amendment remains in place, it does leave uncertain whether some current state-funded scholarships, which can be used at religious universities, are legal, said Ira C. Lupu, a law professor at George Washington University and co-director of legal research for the Roundtable on Religion and Social Welfare Policy.

And Florida’s Blaine Amendment currently stops the state from funding its faith-based prison program, which now depends on volunteers, Lupu said.

It’s not likely, however, that the Blaine Amendment stands in the way of continued funding for secular charitable organizations that are affiliated with religious groups, such as Catholic Charities or Jewish Family Services, Lupu said.

“I don’t think those programs are really in jeopardy,” he said.

Nor would its removal allow the flow of taxpayer funds to religious elementary or secondary schools, he said. The proposed amendment to the state’s education provision would need to pass in order to clear the way for such funding.

The commission has yet to decide whether voters will consider that additional constitutional change. Proposed language to be considered by the commission in April would permit public financing of privately operated services, including educational services, and eliminate other constitutional limits placed on that funding, “without regard to the religious nature of any provider or participant.” Two-thirds of the commission’s members must approve the proposed amendment in order for it to be placed on the ballot in November.

Mark Pudlow, a spokesman for the Florida Education Association, a teachers’ advocacy group, called the combination of proposed constitutional amendments “the latest attempt to blow out the public school system entirely.”

Pudlow described the appointed commission members as “pro-business” and “extraordinarily right wing.”

“They are trying to achieve things that they couldn’t do in the legislative process,” Pudlow said.

Though the proposal to be considered by the commission does not officially remove the Blaine Amendment from Florida’s Constitution, it does effectively remove the barriers to funding imposed by the no-aid provision, Lupu said. But it would not accomplish everything in the amendment already slated to go to voters this fall, he said.

That amendment expressly removing the no-aid language would also eliminate some discretion otherwise afforded to states to exclude religious entities from participation in government programs, Lupu said. In the 2003 decision in Locke v. Davey, the U.S. Supreme Court upheld the state of Washington’s right to exclude theology students from a state-financed scholarship program. The proposal to be considered, on the other hand, would leave this kind of discretion intact.

But fears that the proposed change would allow direct funding of overtly religious services are probably unfounded, Lupu said. Even if Florida’s Blaine Amendment were eliminated, such funding would be prohibited by the Establishment Clause of the U.S. Constitution’s First Amendment, which states “Congress shall make no law respecting an establishment of religion.” Recent court interpretations of that clause state that while government funds may go directly to overtly religious organizations, the money cannot be spent on activities that are religious. So the money must serve some secular purpose and be spent only on secular activities designed to achieve that purpose.

“The proposal would end state-based restrictions on funding of religious entities — elementary and secondary schools aside — and it would reduce or eliminate state discretion to disfavor religious individuals or entities in their pursuit of state benefits,” Lupu said. “But it would not in any way alter existing federal constitutional limits on the use of state funds.”

Barkey, of the Anti-Defamation League, said he is nonetheless uncomfortable with removing the state’s Blaine Amendment and relying on the U.S. Constitution’s Establishment Clause to ensure separation of church and state in Florida.

“We don’t understand why the state of Florida does not want to have a say in its relation between church and state, for one,” Barkey said. “Two, as far as federal Establishment Clause jurisprudence, it’s a moving target. It’s changed greatly in recent years. We don’t know what the standard will be in another 20 years.”

The Taxation and Budget Reform Commission was created in the 1980s and charged with convening every 20 years to consider laws that effect taxation, budget and government services, according to Kathy Torian, the commission’s deputy executive director. Its 25 members were appointed by the governor and legislative leaders in February 2007. They met for the first time in March 2007, and must conclude by May 4, with all proposed constitutional changes forwarded to the Secretary of State.

Claire Hughes is a correspondent for the Roundtable on Religion and Social Welfare Policy.