Referenda, initiatives, and state constitutional no-aid clauses.

• Author: Cauthen, James N.G.

In the 2012 general election, voters in Florida were asked to approve eleven amendments to the state's constitution. One of the proposals--Amendment 8--had been placed on the ballot by the state legislature to delete constitutional language prohibiting the use of state funds to support, directly or indirectly, any church, religious denomination, or sectarian institution and adding language prohibiting the denial of government benefits and support on the basis of religious identity or belief. (1) The measure had the support of the Florida Chamber of Commerce, former Governor Jeb Bush, United States Senator Marco Rubio, and numerous religious organizations, including the Florida Conference of Catholic Bishops, the Florida Baptist Convention, and the Union of Orthodox Jewish Congregations of America. (2) Proponents argued that the amendment was needed to eliminate discrimination against religious groups providing social services in the state, protect longstanding partnerships between state government and faith-based social service organizations, and remove a clause from the state constitution rooted in anti-Catholic bias. (3)

Opponents of Amendment 8 included the Florida Education Association, the Florida Parent-Teachers Association, the American Civil Liberties Union of Florida, the League of Women Voters, and the editorial boards of many of the state's largest newspapers, including the Miami Herald, Orlando Sentinel and Tampa Bay Times. (4) They asserted that the proposed amendment was not intended to protect religious freedom or ensure continued delivery of social services in the state but was meant to promote the public funding of religious groups and schools. (5) Needing a sixty-percent affirmative vote for ratification, (6) Amendment 8 failed at the ballot. (7) It did not receive over sixty-percent support in any Florida county, and received majority support in only six of sixty-seven counties in the state. (8) After the vote, some explained its defeat and the defeat of seven other proposed amendments on ideological grounds, while others asserted support was lacking because of voters' difficulties in understanding the purpose or impact of the proposals. (9)

The campaign over Amendment 8 in Florida was a recent battle in the war against clauses appearing in a majority of state constitutions that prohibit public support of religious schools and institutions that have been applied by many state courts to strike down programs that otherwise would be constitutional under the First Amendment's Establishment Clause. (10) These provisions often are referred to as state "Blaine amendments" because of their similarity to the proposed Federal constitutional amendment introduced by Representative James G. Blaine on Maine in 1875, that many assert was intended to take advantage of anti-Catholic feeling in the country in an attempt to bolster his chances to win the 1876 Republican presidential nomination. (11) State Blaine amendments, as a group, have been criticized and challenged for perpetuating this prejudice because of their similarity and connection to Blaine's original proposal. (12) Some claim that these provisions should be removed from state constitutions because they violate the First Amendment's Free Exercise Clause and discriminate against religious schools and institutions seeking to participate in state assistance programs. (13)

Beyond legal challenges to Blaine amendments or, as referred to here, state no-aid clauses, (14) opponents also have pointed to formal amendment and revision as a way to rid state constitutions of these provisions or limit their application. (15) This could be through outright repeal as was attempted in Florida or through an amendment authorizing the government to undertake a particular program that otherwise might be constitutionally suspect. In this article, I evaluate modern efforts to repeal or amend state no-aid clauses, focusing specifically on proposals involving religious elementary and secondary schools. Was the result in past proposals consistent with the result in Florida? If not, which efforts have been successful and why? What are the future prospects for change?

I find that there has only been a single successful repeal of a no-aid clause since 1965. Most constitutional proposals to repeal or amend state no-aid clauses have failed, particularly those put before voters through the initiative process. (16) Most amendments proposed have been designed to direct or authorize the legislature to undertake a particular aid program--and the few that were successful generally have been directed at overturning previous state court decisions applying the state's no-aid clause restrictively. (17) Proposals to amend state no-aid clauses often have faced well-funded and well-organized opposition, and future proposals likely will as well, which suggests that continuing efforts to remove these provisions through formal constitutional change will face difficult challenges.

1. NO-AID CLAUSES AND THEIR CRITICS

   When a state court addresses a claim involving separation of church and state, it may resolve it using the Federal Establishment Clause or relevant state constitutional provisions, or both. If turning to the state constitution, the court may find that the state constitution places greater restrictions on the state government than the Federal Establishment Clause, thus voiding the program that would otherwise be permitted under the federal doctrine. (18) Consequently, a complete understanding of constitutional limitations of governmental support of religious institutions must include an appreciation of restrictions appearing in state constitutions. (19)

   States use different types of constitutional provisions to restrict government support of religion. (20) Only a handful of states have language that mirrors the Federal Establishment Clause. (21) Rather, most state constitutional restrictions fall into three categories--compelled support clauses, no preference clauses, and no-aid clauses. (22) Compelled support clauses are found in twenty-nine state constitutions and protect individuals (oftentimes collectively) from being forced to support religious institutions. (23) An example comes from the Iowa constitution: "nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry." (24)

   Although textually different from the Federal Establishment Clause, state courts generally have not interpreted compelled support clauses to place any greater restrictions on government than those imposed under the First Amendment. (25)

   The second category of state constitutional restrictions and found in thirty-two state constitutions are "no-preference" clauses. (26) Again, these clauses by and large have not been interpreted by state courts to be more restrictive than the Federal Establishment Clause. (27)

   The third category of state constitutional provisions restricting government support of religion, no-aid clauses, appear in thirty- eight state constitutions (28) and, unlike the other categories of state religion clauses, have often been interpreted to place greater restrictions on state support of religion than the Federal Establishment Clause. (29) With some variation in language, these provisions explicitly prohibit state support of religious schools and/or institutions. (30) In some constitutions, no-aid clauses are part of the bill of rights; (31) other states include them in the education article, (32) and some states have them in more than one location in the constitution. (33) No-aid clauses are often referred to as state "Blaine amendments" (34) because of their similarity to the Federal Constitutional amendment proposed in 1875 by Representative James G. Blaine of Maine. (35) That proposal, approved in the House of Representatives but failing to obtain two-thirds support in the Senate, would have applied the First Amendment's religion clauses to the states and prohibited government aid to religious schools. (36)

   Congressman Blaine's proposal was prompted by the religious conflict generated by the common schools movement of the early 1800s advocating for the development of free public education systems in the states. (37) Catholic immigrants saw the public schools as hostile to their faith and values, so, in many states, they sought a share of public education funds for their own schools, resulting in hostile responses from Protestants and nativists. (38) Focused on the 1875 Republican presidential nomination, Blaine's proposed rewrite of the First Amendment tapped into this sentiment. It was in a form most popular with anti-Catholic voters, as it still permitted Protestantism in public schools so long as it was not Protestantism of any one sect. (39)

   At the time of the proposed Blaine amendment, fifteen states already had enacted some type of legal restriction on public support of religious schools, sometimes by amendments to their constitutions, and many more states included these restrictions in their constitutions in the decades after the federal proposal's defeat. (40) State constitutional scholar G. Alan Tarr has noted that while some states adopted no-aid clauses to address local conflicts over school funding, other states adopted them to avoid such conflicts arising in the future. Additionally, some states included these provisions merely because other states were doing so. (41) Finally, many states, particularly those in the west, included no-aid clauses in their state constitutions because of Congressional requirements to do so as a condition of statehood. (42) Regardless when adopted and under what circumstances, many link all state constitutional no-aid provisions to the nineteenth century anti-Catholic sentiment existing at the time of the federal proposal. (43)

   Although no-aid clauses are often identified collectively as a single...