August 19, 2002

Vouchers battle moving back to the states
___By Holly Lebowitz Rossi
___Religion News Service
___WASHINGTON (RNS)--When the Supreme Court ruled this summer in the landmark school vouchers case Zelman vs. Simmons-Harris, school choice advocates rejoiced and church-state separationists were dismayed.
___But as the implications of the decision filter back to the states, it is becoming clear that legal issues at the state constitutional level remain a serious obstacle for voucher proponents.
___That was underscored Aug. 5 when a Florida judge ruled that the state's voucher program violated Florida's constitutional ban on using public funds to support religious programs.
___In the U.S. Supreme Court case, the justices ruled 5-4 that a Cleveland program allowing parents to use publicly funded vouchers to pay tuition at parochial schools did not establish religion and violate the U.S. Constitution's First Amendment.
___The high court ruling shifted the issue back to each state to decide exactly what kind of voucher program--if any--it wants to implement.
___But 37 states' constitutions currently feature so-called "Blaine Amendments," which explicitly bar public aid to religious schools, and 10 more have "compelled support" language in their constitutions that says nobody can be forced to support a religious organization without their consent.
___The Blaine Amendments are named for U.S. House Speaker James Blaine, who in the 1870s mounted an unsuccessful attempt to amend the U.S. Constitution with a stipulation that no public funds should ever support religious schools or institutions.
___Voucher supporters are considering mounting challenges to Blaine Amendments in several states, including North and South Dakota, Colorado, Georgia, Vermont, Maine and Hawaii. A case in Massachusetts is pending.
___Voucher opponents are urging both increased support for public education and the use of Blaine Amendments to block local voucher programs.
___The Religious Action Center of Reform Judaism, for example, is calling on its congregations to put their energies into repairing the public school system. "If the public school system in America doesn't make it, America won't make it," said Rabbi David Saperstein, the center's director.
___Although the Blaine Amendments date from an era of anti-Catholic sentiment, Saperstein noted, they were based on the principle of church-state separation, an idea "that had nothing to do with anti-Catholicism and everything to do with protecting and strengthening the institutions of both church and state."
___In 2000, voters in California and Michigan soundly rejected ballot proposals to repeal Blaine Amendments. But legal experts disagree on what those rejections mean for the future.
___"There was a very substantial mobilization against those (proposals) by teachers' unions and other groups," said Anthony Picarello, who is a general counsel for the Becket Fund, a religious liberty legal organization that supports vouchers and their use at religious schools.
___But, Picarello said, "The cultural landscape has changed even in those couple of years," and future referenda may have a better chance of success.
___Barry Lynn of Americans United for Separation of Church and State, which opposes vouchers, disagrees. "Everybody who was against vouchers before is against them now," said Lynn, a lawyer and United Church of Christ minister. "I don't think there is any kind of grassroots effort to repeal these provisions of the states' constitutions."
___Nathan Diament, director of the Orthodox Union's Institute for Public Affairs, said the Orthodox Union supports school vouchers "as a matter of social justice. We believe that putting the power and the choices in the hands of parents is the best way to make the schools accountable to the parents."

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