Amendment Anxiety

Florida Court Rewrites Deceptive Church-State Initiative, But Radical Proposal Still Headed For November Ballot

During his first year as governor of Florida, Jeb Bush pushed a private school voucher plan through the state legislature.

Bush signed the bill on June 21, 1999. The next day, Americans United for Separation of Church and State and allied groups challenged the measure in state court, arguing that it violated the Florida Constitution.

The case worked its way through the legal system, reaching Florida’s Supreme Court. On Jan. 12, 2006, the Florida high court ruled decisively against the Bush program, asserting that it violated a provision in the Florida Constitution mandating “a uniform, efficient, safe, secure and high-quality system of free public schools.” (A lower court had also ruled that the measure violated the church-state separation provisions of the Florida Constitution.)

Six years later, reverberations from that ruling are still being felt, and now angry voucher proponents in the legislature are trying a new tactic to give taxpayer funding to religious schools and other ministries.

Bush has not been governor of Florida since 2007, but the battle he launched over governmental aid to religious and other private schools is coming to fruition in the Sunshine State. Voters in November will face a ballot question on whether to remove the church-state separation language from the Florida Constitution.

But thanks to Americans United and its allies, the language of that ballot question will be at least somewhat clearer.

In an effort to gut the church-state protections of the Florida Constitution and pave the way for vouchers and other forms of taxpayer aid to religion, voucher advocates engineered the placement of Amendment 7 on the November ballot. Labeled simply as a “Religious Freedom” amendment, the ballot language describing the proposal was worded in such a way as to sound benign and make it appear that the Florida Constitution was merely being brought into line with the U.S. Constitution.

In fact, Amendment 7 would do much more. Legal analysts say that if passed, it would repeal state constitutional safeguards that prohibit the use of public funds for religious schools and other ministries. The amendment would even in some cases require the state government to fund religious groups when it makes public funds available to non-religious organizations.

In July of 2011, AU and its allies filed suit in state court, challenging the wording that the Florida legislature planned to place on the ballot to describe Amendment 7. On Dec. 14, Judge Terry P. Lewis of the Second Judicial Circuit Court of Leon County agreed that the legislature-approved wording of the ballot measure is deceptive. Lewis prohibited Florida’s secretary of state from placing the misleading language on the ballot, a move that had the effect of mandating that the attorney general make some changes to clarify the intent of the amendment.

Americans United hailed the ruling in Shapiro v. Browning as a step forward.

“Amendment 7 is designed to eviscerate, not protect, religious liberty in Florida,” said Barry W. Lynn, executive director of Americans United. “We’re glad the court saw through the Florida legislature’s ruse.”

The legal challenge was filed on behalf of educators and religious leaders who do not want taxpayer funds to be diverted to sectarian schools and ministries and away from public schools and public services.

In striking down the language, Judge Lewis agreed that the ballot’s wording is “ambiguous and misleading.”

“[W]hether affirmatively misleading or merely ambiguous as to the meaning and effect of the Amendment, it is in either event defective,” Lewis declared.

Lewis’ order and Florida law gave Florida Attorney General Pam Bondi 10 days to rewrite the ballot language. On Dec. 21, she submitted new language to the court.

Although the new ballot wording of the measure, now renamed Amendment 8, is still far from perfect, Lynn said the legal effort achieved a lot by educating the public about what’s really going on in Florida. State officials, he said, had hoped to railroad the amendment through by portraying it as a harmless change. In fact, the amendment is quite radical.

Thanks to the lawsuit, that message is getting out, and Florida voters now have a better understanding of the issue that they will face in November.

Despite the 2006 ruling by Florida’s high court, efforts to award tax aid to religious schools have been a persistent problem in Florida. Bush was followed in office by Charlie Crist, who signed a law expanding the state’s tax-credit program, which allows companies to contribute to a “scholarship” fund that is used to pay for private school tuition. The companies then receive a tax break.

Crist served one term and was succeeded by Rick Scott, who prior to taking office promised to create “education savings accounts” – a euphemism for vouchers. Scott later stepped back from the plan after several state lawmakers gave it a lukewarm reception.

But another push is expected, and voucher proponents know that to succeed, they’ll need to alter the Florida Constitution.

Florida legislators claimed they were acting in part because the Council for Secular Humanism filed suit in state court challenging the use of tax funds to pay for Christian programs in Florida prisons. The group, based in Amherst, N.Y., asserted in its Council for Secular Humanism v. McNeil suit that the programs relied on religious indoctrination.

Florida’s current church-state language, dating to 1885, is very protective of religious liberty. It states in part, “No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”

Amendment 8, if passed, would obliterate this language and replace it with the following: “Except to the extent required by the First Amendment to the United States Constitution, neither the government nor any agent of the government may deny to any other individual or entity the benefits of any program, funding, or other support on the basis of religious identity or belief.”

The initiative has been endorsed by the state’s Roman Catholic hierarchy and a host of Religious Right groups, including the Alliance Defense Fund and the Becket Fund for Religious Liberty.

Former governor Bush must also be happy that the amendment is headed to the ballot. Although he has kept his role low-key, a statement on his Foundation for Florida’s Future Facebook page said, “Amendment 7 is not about vouchers. It is about providing Floridians high-quality public services (social, healthcare, and education), irrespective of the provider’s religious affiliation.”

Opponents of the constitutional change argue that it is a radical step. The new language not only erases the ban on taxpayer funding of sectarian groups, it creates an affirmative right for religious groups to secure government funding.

In pushing for the change, advocates have argued that the current provision is discriminatory, and some have even contended that it’s the result of anti-Catholic bias. In fact, Florida’s church-state provisions arose out of desire for a strong and well-funded public school system.

Hans Johnson, a political consultant, and David K. Johnson, an associate professor of history at the University of South Florida, have written that the historical evidence shows that Florida’s no-aid amendment was the result of the state’s effort to improve public schools, not anti-Catholic animus. (See “Snow Job in the Sunshine State,” September 2011 Church & State.)

Religious leaders in Florida who support church-state separation have pointed out that a provision that curtails taxpayer funding to all religions can hardly be discriminatory. In fact, the provision treats all religious groups exactly the same.

Houses of worship are free to open schools, but they are expected to pay for them with privately raised funds. None are given access to the public fisc.

Many religious leaders, recognizing this fact, signed on to the lawsuit. The lead plaintiff in the case was Rabbi Merrill Shapiro, rabbi of Temple Shalom in Deltona and president of the Board of Trustees of Americans United. In addition to Shapiro, two other clergy affiliated with Americans United joined the suit – the Rev. Harry Parrott of Clay County, who is a retired Baptist minister, and the Rev. Harold Brockus of St. Petersburg, a retired pastor of a Pinellas Park congregation affiliated with the Presbyterian Church USA and the United Church of Christ.

Other clergy who signed on include the Rev. Kent Siladi of Rockledge, who is the Conference Minister for the Florida Conference of the United Church of Christ; Rabbi Jack Romberg of Temple Israel in Tallahassee and the Rev. Bobby Musengwa, pastor of Maximo Presbyterian Church in St. Petersburg.

Leaders in the Florida Education Association, Florida School Boards Association and Florida Association of School Administrators also served as plaintiffs.

Several organizations joined with Americans United in filing the lawsuit, including the ACLU Program on Freedom of Religion and Belief, the ACLU Foundation of Florida, the Anti-Defamation League, the Florida Education Association and the National Education Association.

Americans United Associate Legal Director Alex J. Luchenitser, in consultation with AU Legal Director Ayesha N. Khan, assisted in preparation of the legal papers in the case. Attorney Ronald G. Meyer of Meyer, Brooks, Demma and Blohm in Tallahassee served as lead counsel.

Now that final ballot language has been approved, advocates of church-state separation will work together with allies to educate Floridians about this issue. Civil liberties activists and public school supporters will spread the word that this isn’t a minor change. They will educate voters that if Amendment 8 passes, it will demolish the church-state wall in Florida’s Constitution and open wide the door to taxpayer funding of religion.

“Florida’s constitution contains excellent language that protects citizens’ right to contribute our hard-earned money only to the religious institutions of our free choice,” said Shapiro. “Amendment 8 takes that right away from us and lets politicians make that decision instead.”

“It’s imperative,” Shapiro added, “that voters understand what’s at stake here. The future of religious liberty is on the line, and Floridians need to know it.”