If they are successful, the outcome would not only enhance school voucher programs but also undermine expected constitutional challenges to other faith-based initiatives, including the drug treatment programs President Bush called for in his State of the Union address.
The Supreme Court rejected federal constitutional challenges to voucher programs last summer. The court ruled the government could provide indirect funding to religious institutions by giving parents school vouchers and leaving the actual choice of schools to them.
Bush has asked for $75 million for pilot school choice and voucher programs in the Fiscal Year 2004 budget he sent to Congress on Monday (Feb. 2).
Voucher supporters, however, fear future assaults by opponents wielding state constitutional provisions--the so-called Blaine amendments and their like--and experts agree such attacks are likely.
The 19th century Blaine amendments take their name from from Sen. James Blaine, who initially proposed a federal amendment precluding states from aiding sectarian schools. He said the amendment was intended to retain the Protestant nature of the country's public schools while refusing Roman Catholics' requests for funding for their schools. The federal amendment failed, but many states adopted the measure, some as a condition of their admission to the union.
"The federal angle is now gone, so they are going to bring state challenges every place they can," said Ira Lupu, professor of constitutional law at George Washington University.
The Institute for Justice, a libertarian public interest law firm, which has successfully defended a number of existing state voucher programs, recently launched a preemptive offensive against voucher opponents by filing suits in states with educational funding programs that exclude religious schools. The institute claims state constitutions' clauses that restrict government funding of religious institutions should be struck down as unconstitutional.
Dick Komer, senior attorney at the institute, said his organization has brought suit in Washington and Maine and will soon file in Vermont and Colorado. Each of these states has at least one educational program or policy that denies funds based on constitutional religious clauses.
In Washington, which doesn't have a voucher program, the institute is challenging a policy that prohibits state public university students from student-teaching at religious schools. Last year, the state lost a case challenging a state scholarship fund that excluded students majoring in religious studies.
"The 9th U.S. Circuit Court of Appeals said you can't exclude religious options--that's discrimination against religion," Komer said.
The court, however, depended on the clause of the U.S. Constitution protecting the free exercise of religion. It didn't address the constitutionality of the religion clauses in Washington's state Constitution.
Lupu said the clauses take multiple forms. Blaine amendments, for example, prohibit funding of religious organizations. The so-called "compelled support" provisions prohibit requiring individuals to financially support religious organizations, including through the expenditure of state funds.
"As the U.S. Supreme Court becomes more accommodating regarding the interaction between government and religion, many state courts are falling back on their Blaine amendments," said Frank Manion, senior counsel at the American Center for Law and Justice, the public interest law firm founded by religious broadcaster Pat Robertson.
Lupu said many of the state provisions have the same thrust as Blaine amendments--"to limit the power of the state to provide financial support either for religious activity or more broadly for any activity conducted by religious organizations, even though the activity (such as education or drug counseling) might not be religious."
According to a report Lupu recently published, 37 states have Blaine amendments, 29 states have provisions explicitly forbidding financing of religious schools and 10 states extend the limitations to both direct and indirect funding. He cautioned that it's not the state constitutional language but how the state courts interpret that language that determines its ultimate impact.
"There are two layers here," Lupu said. "How will state courts interpret their constitutions, and, if they interpret it in ways that say vouchers may not be used in religious schools, then there will be federal attacks."
The Institute for Justice considered such interpretations when devising its strategy on vouchers. "We knew that a number of states have interpreted their state constitutional religious amendments in a more rigid fashion than the federal Establishment Clause has been interpreted," Komer said. "So we looked for the states that had existing school choice programs that are being limited by the state supreme court or the state religious clauses to exclude religious schools."
Lupu said voucher supporters want to get a case to the U.S. Supreme Court so it can rule that the state clauses violate the federal Constitution.
In addition to Free Exercise clause arguments, as in the Washington case, opponents of the provisions might point to the 19 century anti-Catholic hostility that some say motivated the state Blaine amendments.
Rob Boston, a spokesman for Americans United for the Separation of Church and State, dismissed arguments based on the amendments' origins. "By tainting them with the brush of bigotry," he said, "it becomes acceptable to remove them from state constitutions. The next thing you know, taxpayers find themselves paying not only for public schools but also for a variety of religious schools."
Lupu declined to speculate on how courts will respond to the arguments against the state constitutional provisions. "The way in which this story will play out in all the courts over the next five years is extremely unpredictable," he said.