Why Rosen is Wrong about Vouchers

Does the U.S. Constitution support the Douglas County voucher program?

Ed Quillen and Ben DeGrow have fought it out on the origins of the so-called “Blaine Amendments,” which inspired Article IX, Section 7 of the Colorado Constitution prohibiting tax funding of religious institutions.

But here my purpose is not to try to sort out that history; as I’ve written,“Those who do not like that language [about tax funding], it seems to me, should seek to repeal it rather than ignore it.” Nor is my main goal here to discuss the propriety of vouchers, which I’ve done before.

Instead, I want to determine whether the U.S. Constitution trumps the Colorado Constitution in legalizing vouchers within the state. It does not.

This morning on 850 KOA, Mike Rosen offered the following argument. In 2002, the Supreme Court ruled in Zelman v. Simmons-Harris that the establishment clause of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion”) does not rule out voucher programs that direct tax money to religious schools, so long as the government does not favor certain religious schools and makes the program available to a general class of citizen. Therefore, argued Rosen, the First Amendment trumps Colorado’s Article IX, Section 7, rendering vouchers legally permissible within Colorado.

But Rosen’s logic is faulty. The Supreme Court merely ruled (or so I understand) that a voucher program does not necessarily violate the First Amendment; whether a voucher program violates a state constitution is another question entirely.

The only way Douglas County’s voucher program could be tossed out federally is if it were deemed to violate some aspect of the federal constitution. Nobody is arguing that. (I think a good case can be made that forcibly redirecting funds to religious institutions does violate the establishment clause, but I don’t get a legal say in such matters.)

But the U.S. Constitution’s relatively weak establishment clause does not prohibit states from enacting stronger rules. The proper test is as follows: Does the voucher program violate the establishment clause? If no, then does it violate the Colorado Constitution? If yes, then it is invalid. (I predict the Colorado Supreme Court will side with the ACLU in this case, and I think it will be right to do so.)

Only if Article IX, Section 7 were ruled to violate the U.S. Constitution would the latter trump the former. To my knowledge, nobody has proposed a plausible case that that is so.

Contrast the case of vouchers with that of the campaign laws. I have argued that Colorado’s campaign laws violate our rights of free speech as protected by the First Amendment. Therefore, the Colorado laws, though part of the state constitution, should be invalidated by trumping federal law.

But, unless Article IX, Section 7 also violates the First Amendment — and I don’t see how it could — then it constitutes the deciding law.

As I have suggested, the legal dispute aside, vouchers in fact violate people’s basic rights of economic liberty and freedom of conscience. It is wrong to force someone to finance any religious institution against his will. And until conservatives recognize that basic point, they will at best dawdle at the edges of education reform, and they most likely they will further entrench the core injustices of “public” education.

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Rob commented June 28, 2011 at 1:10 PM
I’m glad to see this discussion of the so-called “Blaine Amendments” and the potential impact of vouchers on the separation of church and state.

Oklahoma’s Constitution has a similar clause – Article 2 Section 5 – which was the target of a potential state question in this year’s session of the legislature, as it is viewed by religious conservatives as an impediment to getting their hands on tax money, primarily through the Governor’s Office of Faith-based Initiatives.

For this reason it has been near and dear to the hearts of supporters of the separation of church and state here in Oklahoma, and I was dismayed to see it coming under attack when word of SJR23 got out at the local AU chapter’s legislative preview in January.

So much so that I posted at the blog of the Coalition for Secular Government on the possibility that this could be the opening round in a campaign to put ALL religious establishment clauses in state constitutions to the ballot.

While I’m glad to see that this has not happened – yet – I don’t think it can be ruled out and caution supporters of church/state separation to remain vigilant.

While clauses in state constitutions specifically targeting religious funding – a la the “Blaine” Amendment – may be relatively recent, religious establishment clauses predate the Constitution itself and are a crucial backup to the First Amendment. I’m sure you already know that the Virginia Statute for Religious Freedom inspired the Establishment Clause of the First Amendment.

Rob commented June 28, 2011 at 1:57 PM
Quillen’s piece is EXCELLENT!

DeGrow makes some good points but basically drops context.

I am dismayed at the news from Florida! Obviously I need to catch up on what’s going on here.