No Longer A Matter of Interpretation:
Targeting State Constitutions to Advance Choice
By Dick Komer
Now that the U.S. Supreme Court has affirmed that the federal Establishment Clause permits religious schools to be included among a range of choices in parental school choice programs, IJ begins its work to remove one of our opponents’ final hiding places. The ACLU, People for the American Way and others argue that many state constitutions yield a negative answer to the same question, and indeed, a number of state supreme courts have interpreted their state religion clauses to be more restrictive of religious choices than the federal Constitution. In light of the U.S. Supreme Court’s recent decision, however, IJ argues that such restrictive interpretations infringe upon federally protected rights and must be struck down. (For example, IJ recently filed suit in Washington state to rein in its overly broad interpretation of its Blaine Amendment. See Clint Bolick’s article.)
These restrictive interpretations of state Blaine Amendments–found in 37 state constitutions–and the only slightly less ubiquitous “compelled support” clauses present in 29 constitutions present a serious impediment to efforts to enact parental choice programs in quite a few states. IJ, through the wizardry of our resident technologist Don Wilson, IJ’s director of production and design (and of all things cool and visual), developed a new map that shows at a glance where the states stand on parallelism between their constitutional language and the federal religion clauses. As always with legal questions, a substantial amount of interpretation is involved, but the states in red are those where we conclude that the state courts take a more restrictive interpretation, while the states in green take a parallel interpretation. States in yellow are those that haven’t given us a definitive indication one way or the other.
The green states thus represent states where we think the state religion clauses should not present a substantial barrier to parental choice programs–indeed, several green states, including Arizona, Illinois, Ohio and Wisconsin are in that category because we already successfully defended parental choice programs there. The restrictive interpretations of the red states, on the other hand, do present barriers to such programs, and, as in our new Washington case, we intend to selectively attack these interpretations as inconsistent with federal rights. Our ultimate objective is to secure a U.S. Supreme Court decision holding that these state religion clauses must be construed in harmony with the federal Constitution.
In these red states, the restrictive interpretations are found in decisions rejecting the inclusion of religious choices in programs we know are compatible with the federal Constitution. For example, in Washington, the state Supreme Court refused to allow funding for Larry Witters to pursue a religious vocation by attending a religious college, after the U.S. Supreme Court unanimously held that to do so did not violate the federal Constitution. So we will challenge these interpretations by fighting against religious exclusions in existing state programs, like our challenge to Washington’s refusal to let teaching candidates do student-teaching in religious schools. In the end, we hope to have the U.S. Supreme Court turn the whole map green, giving parental choice efforts a green light throughout the nation.
Dick Komer is an IJ senior attorney.
Download this map in PDF format: Signals from State Courts on School Choice: How the Courts are Interpreting State Constitutional Religion Clauses (600k)