Freethought & Rationalism Archive

Stephen Maturin · 05-29-2003, 10:35 AM

Americans United for Separation of Church and State, along with a collection of parents, teachers unions and other groups, is challenging the recently enacted Colorado school voucher program in court.

AU Press Release

Denver Post Article

Washington Post Article

Challenges to such programs under the federal Establishment Clause aren't going to fare well after that Zelman decision, but check out Article IX, Section 7 of Colorado's state constitution:

Quote:

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

Unless the Colorado Supreme Court interprets that provision a whole helluva lot more narrowly than written, the voucher program is in for a serious reaming.

hezekiah jones · 05-29-2003, 10:56 AM

Holy crap. That is one hell of a constitutional provision. That baby looks tighter than a mouse's ear.

Toto · 05-29-2003, 11:55 AM

But the neo-conservative federalist-only-when-it-suits-them idea is that this provision should be struck down, because it was motivated by anti-Catholic bias and discriminates against religious institutions.

The Blaine Game

Quote:

A section of the New York Constitution explicitly bars public funding of religious schools. Known as a "Blaine amendment," the provision has been part of the state constitution since 1894. Voucher advocates know that the New York language and provisions like it in three dozen other state constitutions represent a significant roadblock to their crusade � and they are preparing to get rid of them.

The fight over Blaine amendments will likely be the next big battleground over school funding. In Washington, D.C., voucher booster Kevin Hasson of the Becket Fund for Religious Liberty, a conservative Catholic-oriented legal group, has already announced his intention to go after Blaine amendments in the states.

"Blaine amendments," Hasson told The New York Times June 30, "are a dirty little secret from the anti-immigrant past. They not only get in the way of vouchers and prohibit other sorts of useful aid, but they enshrine bigotry in many state constitutions."

At the same time Hasson was fulminating against Blaine amendments, the Institute for Justice, another pro-voucher organization, was launching its own campaign. Normally skeptical of federal control, Institute lawyers are suddenly arguing that the First Amendment means that Blaine amendments must be declared null and void.

What are Blaine amendments, and why do they have the pro-voucher crowd so worked up? The short answer is that Blaine amendments are provisions in state constitutions that explicitly bar tax assistance to religious schools. Three fourths of the states have them, and if they are interpreted broadly, the language could quickly shut down voucher programs in much of the country.

. . .

In Massachusetts, the Becket Fund has filed a federal lawsuit to overturn Article XLVI, Section 2 of the state constitution, which states that "no grant, appropriation or use of public money or property or loan of credit" shall be made in support of religious institutions. The language dates from 1854, before Blaine entered politics. (The Becket Fund insists that the language was the result of an anti-Catholic political party called the "Know-Nothings.")

American Atheists press release

Also Historic Background on the Blaine Amendment states: "Many First Amendment scholars consider the Blaine Amendment unconstitutional because it requires government to discriminate against religious groups." How many First Amendment scholars?

Federalist Society materials

edited to add: you can find the Becket Fund's brief on the Blaine Amendment here

hezekiah jones · 05-29-2003, 12:52 PM

Originally posted by Toto
But the neo-conservative federalist-only-when-it-suits-them idea is that this provision should be struck down ...

And that happens to be exactly what I was thinking. If this provision is ultimately invalidated by the Fellators of Scalia, no one will be laughing harder at the nearly unfathomable neo-federalist irony than me (and possibly yourself and Maturin).

Stephen Maturin · 05-29-2003, 02:08 PM

Quote:

Originally posted by hezekiah jones
* * * Fellators of Scalia * * *.

lmao. Man, what a shitty job. The fact that so many are willing to pitch in never ceases to amaze.

Here's another article discussing that Blaine Amendment business, this one written in connection with a Ninth Circuit case out of Washington that's pending before the Supreme Court. The author is a law professor at Notre Dame. Guess where he stands on the issue.

hezekiah jones · 05-29-2003, 02:30 PM

From SM's NR link:

Quote:

Scholars, courts, and litigators are increasingly aware that the roots of anti-aid provisions ... are inextricably linked to the virulent anti-Catholicism of the late-19th century. Indeed, as Professor Philip Hamburger has masterfully demonstrated, it was hostility to the perceived anti-democratic and authoritarian teachings of the Catholic Church, and fears that Catholic schools were failing to inculcate American values and form good American citizens, that for more than a century provided the content for the notion of "the separation of church and state."

Which of course raises another potential neo-federalist irony. In my all-time fave Scalia dissent (Edwards v. Aguillard), the Justice was pigheadedly opposed to looking beyond the language of the creationist statute and simply accepting its drafter's ludicrous expressions of constitutional goodwill at face value. I guess the devout textualists will have to chuck that position out the window as well.

Quote:

To be sure, these are not likely the views of government officials in Washington today.

Yeah, like hell they aren't. Can you say "Rod Paige"?

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05-29-2003, 10:56 AM	#2
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	Holy crap. That is one hell of a constitutional provision. That baby looks tighter than a mouse's ear.

05-29-2003, 12:52 PM	#4
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	Originally posted by Toto But the neo-conservative federalist-only-when-it-suits-them idea is that this provision should be struck down ... And that happens to be exactly what I was thinking. If this provision is ultimately invalidated by the Fellators of Scalia, no one will be laughing harder at the nearly unfathomable neo-federalist irony than me (and possibly yourself and Maturin).

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