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Court Battle Begins Over Taxpayer Funds To Religious Groups

A proposed change to the state constitution making it easier for taxpayer funds to go to religious institutions does not adequately explain that fact to voters who will be asked to decide, an attorney for critics told a circuit judge.

Representing a coalition of public education and religious interests, attorney Ron Meyer told Second Circuit Judge Terry Lewis that a proposed constitutional amendment passed by lawmakers earlier this year is misleading because it disguises the true intent behind the amendment, which is scheduled for a vote in November 2012.

Thursday’s court hearing was the first in a lawsuit filed in July that is spearheaded by the Florida Education Association, other public school advocates and religious leaders throughout the state.

Opponents of the proposed amendment – called Amendment 7 – are primarily concerned that taxpayer dollars will be used to support scholarships, known as vouchers, for private school students.

The proposed amendment deletes a provision in the state constitution that says public funds cannot be used to aid religious institutions, a prohibition known as the “no-aid provision” The proposal then adds a sentence saying the state can’t deny funds to a person or entity based on religious identity or belief.

If approved, Meyer said the proposed amendment would require the state to direct public taxpayer dollars toward religious institutions, opening the door for expansions of programs such as private school vouchers and weakening the state’s historic separation of church and state.

None of this, Meyer argued, is disclosed to voters in the ballot summary.

“What they are doing is turning what has been the settled rule of religious freedom for the past 125 years on its head,” Meyer said. Later, he called it a “huge recalculation…of what the First Amendment provides.”

Florida law requires that a ballot title and summary adequately and accurately inform voters about the proposal’s real effect.

Along with an inaccurate summary, Meyer said the ballot title – “Religious Freedom” – was misleading to voters.

Attorneys for the state said the ballot summary and title are clear.

Daniel Nordby, the attorney for the Secretary of State, argued the intent of the constitutional change was “clearly and accurately explained in the ballot statement.”

Nordby said the summary discloses that the “no-aid” provision is being deleted and an “anti-discrimination” clause is being inserted. The intent of prohibiting the state from denying funds to a person or entity based on religious reasons was to remove a “constitutional cloud of uncertainty,” he said.

“It would allow religious-based institutions to participate in providing secular social services on even terms,” Nordby said.

There was also disagreement over whether the ballot summary explained that the proposal may violate the U.S. Constitution’s “free exercise” and “establishment” clauses that deal with the separation of church and state and protections of religious freedoms.

By requiring the state or other public entities to spend money on religious institutions, Meyer argued the proposal makes the state constitution inconsistent with the U.S. constitution.

But attorneys representing the state said language in the proposed amendment expressly prohibits the state from doing anything that would violate the U.S. Constitution.

The “no aid” provision in the state constitution prohibiting money from going to churches or religious groups is known as the “Blaine Amendment,” for James G. Blaine, a 19th Century congressman from Maine who lobbied unsuccessfully to get that restriction inserted into the U.S. Constitution.

After it failed, most of the states, including Florida, put similar provisions in their own state constitutions.

Thursday’s hearing also focused on a new law that allows the Attorney General to rewrite ballot summaries that are rejected by the courts for being misleading. Meyer argued that the Legislature has the responsibility of writing ballot summaries, not a member of the executive branch of government.

“It crosses the line and delegates a purely legislative function to an executive branch member and that can’t be tolerated,” Meyer said.

Scott Makar, the Florida solicitor general, said it doesn’t make sense that Meyer agrees the attorney general could write the ballot summary in the first place, and then rewrite it, but doesn’t permit the attorney general to step in after the Legislature. He called that argument “nonsensical.”

Lewis gave no indication when he would rule in the case after the hour-and-a-half hearing finished. Both sides are expected to appeal the case all the way to the Florida Supreme Court.

This is the third lawsuit the Florida Education Association has spearheaded since the legislative session ended in early May. They are also involved in a lawsuit over changes to public employee pensions and have sued over a new teacher merit pay law that ties teacher salaries to test scores.

By Lilly Rockwell
The News Service of Florida