Referenda, Initiatives, and State Constitutional No-Aid Clauses

By Cauthen, James N. G. | Albany Law Review, Summer 2013 | Go to article overview

Referenda, Initiatives, and State Constitutional No-Aid Clauses


Cauthen, James N. G., Albany Law Review


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. …

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