Taking initiative: Voters in 11 states will face ballot measures related to church-state separation

This November, voters in at least 11 states will have the opportunity to directly vote on ballot measures that could either advance or undermine church-state separation.

Reproductive freedom and abortion rights are on the ballot in 10 states: Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York and South Dakota. These states could join six others (California, Kansas, Kentucky, Michigan, Ohio and Vermont) where voters have either enshrined abortion rights in their state constitutions or rejected constitutional amendments to restrict abortion access since the ultra-conservative bloc of the U.S. Supreme Court abolished the nationwide right to abortion in 2022.

As 13 Missouri faith leaders have made clear in a lawsuit brought by Americans United and the National Women’s Law Center, abortion bans like Missouri’s violate church-state separation because they enshrine one narrow religious view of abortion into law. As Americans United President and CEO Rachel Laser has repeatedly said, religious freedom requires that everyone be able to make their own decisions about their own bodies based on their own beliefs.

Additionally, three states — Colorado, Kentucky and Nebraska — will give voters the chance to oppose the expansion of private school vouchers, which undermine religious freedom by forcing taxpayers to fund private religious education.

Many of these ballot measures have Christian Nationalists and their political allies worried. “Aware that their views are extreme and unpopular, [Christian Nationalists] don’t want Americans to have the opportunity to vote on them,” AU Senior Adviser Rob Boston wrote on AU’s “Wall of Separation” blog.

As a result, several of the measures have faced down-to-the-wire court challenges and deceptive tactics to either remove them from the ballot or confuse voters.

“A lot of abortion opponents don’t think they would win a fair vote, so they’re not trying to,” Mary Ziegler, a law professor at the University of California at Davis and expert on the legal history of abortion, told The Washington Post. “You’re seeing a period of experimentation because antiabortion groups haven’t found a winning recipe.”

Here’s a look at some of the fights over ballot initiatives that voters will decide this fall:

Missouri

An eleventh-hour decision by the Missouri Supreme Court will keep Amendment 3 on the state’s November ballot. The measure would establish the constitutional right to an abortion until fetal viability and grant constitutional protections to other reproductive health care, including birth control. Amendment 3 would also protect those who assist in an abortion from prosecution. Missouri currently bans all abortions except to save a pregnant person’s life.

The state’s high court was forced to weigh in on Sept. 10, the deadline for printing the state’s absentee ballots, after Missouri Secretary of State Jay Ashcroft (R) briefly decertified the state’s ballot measure just days before. Ashcroft’s action was in response to a state court ruling against the initiative for failing to list all existing laws that would be repealed if it passes.

Cole County Circuit Judge Christopher Limbaugh (a cousin of the late conservative talk radio host Rush Limbaugh) issued that ruling in a case brought by the Christian Nationalist group Thomas More Society on behalf of anti-abortion lawmakers and activists. The plaintiffs included state Sen. Mary Elizabeth Coleman, one of the legislators who proclaimed her religious beliefs when she voted in favor of the bill that created Missouri’s total abortion ban. “I believe firmly that no matter what age you are, that if you are a woman, if you are a man, your life has value. You have inherent dignity … provided by God,” Coleman said during legislative debate in 2019.

Limbaugh’s ruling noted the issue would likely be appealed to the Missouri Supreme Court given “the gravity of the unique issues involved in this case, and the lack of direct precedent on point.” Missourians for Constitutional Freedom, the coalition supporting the ballot measure, appealed immediately and secured the Missouri Supreme Court 4-3 ruling leaving the measure on the ballot.

“The Missouri Supreme Court sent a clear message that the will of the people is stronger than politicians’ attacks,” Tori Schafer, director of policy and campaigns for the ACLU of Missouri, said in a statement. “Today’s ruling ensures that Amendment 3, the Right to Reproductive Freedom Initiative, will appear on the November ballot, giving voters – not politicians – the power to decide on this critical issue.”

Florida

Even though the Florida Supreme Court ruled back in April to allow the state’s “Amendment to Limit Government Interference with Abortion” on the November ballot, anti-abortion state officials continued their efforts aimed at sowing confusion and misinformation about the initiative and even intimidating voters from supporting it.

In a continuance of nationwide conservative attacks on voting rights and fearmongering around false claims about election fraud, Gov. Ron DeSantis (R) deployed his new election police force in a search for evidence of fraud in the collection of the nearly 1 million signatures from Floridians who wanted Amendment 4 on the ballot. The Associated Press reported that police have shown up at the homes of people who signed the petitions, actions that critics say are aimed at intimidating abortion supporters.

DeSantis and the Florida secretary of state’s office have voiced unfounded concerns about the validity of 36,000 signatures collected from four counties — even though the deadline to challenge the signatures has long passed. And even if all 36,000 signatures were deemed invalid, the Floridians Protecting Freedom coalition would still have enough signatures for the ballot measure to proceed.

At least two state efforts to mislead voters about Amendment 4 also have ended up in court. In September, Floridians Protecting Freedom sued the state’s Agency for Health Care Administration for launching a website and taking out ads opposing the ballot measure in what attorneys from the ACLU of Florida and the Southern Poverty Law Center have called an unlawful use of taxpayers’ money. The case had not been resolved at Church & State’s press time. And in August, the Florida Supreme Court allowed a lengthy, controversial “financial impact statement” to be included on the ballot alongside Amendment 4.

“This sham of a process is a reminder to Florida voters that politicians are playing dirty tricks to overcomplicate and politicize a simple administrative fix,” Floridians Protecting Freedom said of the financial statement. “The only way to put a stop to the government interference is to vote Yes on 4.”

Amendment 4 states, “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.” Florida currently bans abortion after six weeks of gestation, before many people know they’re pregnant.

Mat Staver, the Orlando-based founder and chairman of the Christian Nationalist group Liberty Counsel, told Politico his organization’s “next step” would be a court challenge if the amendment passes. Staver was part of the legal team that unsuccessfully fought the ballot initiative before the state Supreme Court last spring.

Nebraska

Nebraskans will be asked to vote on two competing abortion measures after the Nebraska Supreme Court ruled in September that both could be on the ballot.

Initiative 439, the Protect the Right to Abortion measure, would amend the state’s constitution to proclaim that “all persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient.” Conversely, Initiative Measure 434 would enshrine the state’s current 12-week ban in the constitution.

“The competing ballot initiative does nothing to help these patients, making the current ban permanent and leaving the door open for a total abortion ban in the state,” Allie Berry, the campaign manager of the abortion-rights coalition Protect Our Rights, said in a statement to NBC News. “A vote for Protect Our Rights will end the current harmful abortion ban and stop political interference in the future.”

A third ballot initiative in Nebraska will give voters the opportunity to repeal the state’s new private school voucher program. Much like the abortion initiatives in Nebraska, the voucher ballot measure has been tied up in court — thanks in large part to the machinations of pro-voucher legislators trying to circumvent voters.

After Nebraska’s unicameral Legislature passed the state’s first voucher program last year, supporters of public education collected enough signatures to get a measure that would repeal the program on this year’s ballot.

In an effort to nullify that ballot measure, the Legislature this year passed a new private school voucher program to replace the 2023 law, this time using a different funding mechanism for the program. The new law meant the ballot measure needed to be replaced as well.

The Support Our Schools Nebraska coalition had to start from scratch collecting signatures to get a new initiative on the ballot to repeal the new law. The coalition succeeded despite the time crunch — and then voucher proponents sued, claiming the referendum would violate the state constitution’s bar against voter initiatives that revoke legislative appropriations for government functions.

A unanimous Nebraska Supreme Court in September said the measure could remain on the ballot because removing it “would frustrate the fundamental purpose of the referendum provision to give the people the right to vote on specific legislation.”

“At every turn, those wanting to use public funds to pay for their private schools have fought against the right of Nebraskans to vote on this issue,” Jenni Benson, who serves on Support Our Schools Nebraska’s board and is president of the state’s largest teachers union, told the AP. “But Nebraskans support public education — they know their local public schools are the heart of their communities.”

It’s no surprise pro-voucher activists have tried to defeat the initiative. As Church & State has documented, every time the issue of private school vouchers has been on the ballot, voters nationwide have rejected it (see “The People Have Spoken” in the Dec. 2018 issue).

Colorado and Kentucky

Ballot initiatives could pave the way for legislators to create private school voucher programs in Colorado and Kentucky, two states where courts have so far blocked vouchers.

In Colorado, public school advocates have called Amendment 80 a “Trojan horse”; the ACLU of Colorado said it “attempts to create a foothold that could lead to a statewide voucher program.” The measure would amend the state constitution to include “the right to school choice” that “includes neighborhood, charter, and private schools; home schooling; open enrollment options; and future innovations in education.” Coloradans already have access to all of those education options; what they don’t have is the right to force the public to pay for private education.

Courts have previously blocked two attempts to create voucher programs in Colorado; Americans United was involved in both lawsuits.

Similarly, the Kentucky Supreme Court in 2022 struck down a legislative attempt to create a voucher program due to pro-public education language in the state’s constitution. Another state court struck down a measure to fund charter schools in 2023.

That’s why pro-voucher legislators in Kentucky added Amendment 2 to the ballot. It would add language to the state constitution allowing public money to pay for education “outside the system of common [public] schools.”

A coalition called Protect Our Schools KY is urging voters to reject the amendment. “Amendment 2, or the voucher amendment, paves the way for our state to begin writing blank checks to private schools using our tax dollars that should go to public schools and our students,” Jessica Hiler, the president of the Fayette County Education Association and a coalition member, told the Lexington-based TV station WLEX. “This voucher amendment would siphon tax dollars away from our public districts and starve students of critical resources they need to receive the strongest education possible.”

At AU, Boston and Andrew L. Seidel, Vice President for Strategic Communications, produced a series of blog posts in September aimed at connecting the dots between church-state separation and democracy — and the ways in which Christian Nationalism threatens both.

The bottom line, Seidel said, is that “One of the best ways to fight Christian Nationalism is to register and vote.”