There is wide variety among the states on the subject of government support for religious entities. States that entered the Union in the first part of the 19th century resonate with the still-vital federal constitutional concern that government remain disconnected from the enterprise of religious worship. Beginning in the mid-19th century, however, states exhibit a pattern of broad and explicit prohibition on state transfers of funds to "sectarian institutions."

The recent relaxation of federal constitutional restrictions on government financing of FBOs has lifted a veil from the once obscure field of state constitutional limits on government transfers to such organizations. So long as Separationist principles remained in full flower, as they did from the late 1940's to the early 1980's, state courts were rarely called upon to give independent meaning to Separationist provisions in their own constitutions. When state courts did so, they frequently construed these provisions in ways that mirrored federal non-establishment principles. Now that the Supreme Court has embraced versions of those federal law principles that are more hospitable to aid to FBOs, opponents of such aid have seized upon state constitutions as the latest weapon in the struggles over church-state relations. In response, proponents of such aid have counterattacked, claiming that these state constitutional provisions themselves offend one or more federal constitutional norms. The stage is well-set for a lengthy battle over this territory.[1]

In our federal system, states enact, implement, and interpret their own constitutions, subject only to federal constitutional limitations on their content. And there is wide variety among the states, as is revealed by examinations of the relevant texts. In order to facilitate this examination, we have attached to this report (See State Constitutional Provisions Summarization) a compilation of the provisions from the constitutions of all fifty states on the subject of government support for religious entities.[2]

The original thirteen states, and others that entered the Union in the first part of the 19th century, tend to have provisions on the subject of state aid to religion that track the colonial experience which the Supreme Court, in Everson v. Board of Education,[3] claimed was at the center of original constitutional concern. Such provisions are typified by Article I, section 1 of the Delaware Constitution: "[N]o person shall . . . be compelled to . . . contribute to the . . . support of any place of worship, or to the maintenance of any ministry." Such provisions, singling out support of houses of worship and clergy, resonate with the still-vital federal constitutional concern that government remain disconnected from the enterprise of religious worship.

Beginning in the mid-19th century, however, and continuing through the admission of Alaska and Hawaii in the mid-20th century, a different pattern appears. States coming into the Union in that time period (and some older states, by mid-19th century amendment) exhibit a pattern of broad and explicit prohibition on state transfers of funds to "sectarian institutions." Many of these provisions are education-specific, prohibiting, for example, any "appropriation of public money made in aid of any church, or private or sectarian school . . ." (Arizona Constitution, Art. 2, sec. 12.) Provisions of this character originated in a Nativist political movement, beginning in the 19th century, aimed at retaining the Protestant character of America's common (public) schools and forbidding states from appropriating monies for the support of Catholic schools. Such provisions are often called "little Blaine Amendments," after Senator James Blaine who urged unsuccessfully, as part of a run for the Presidency in 1876, that the federal Constitution be similarly amended to explicitly preclude the states from using tax monies or public lands to aid sectarian schools.

As revealed by the details in the State Constitutional Provisions Summarization, the current breakdown among the states with respect to constitutional provisions of these varying characters is as follows (some states have more than one such provision, so the total is greater than 50):

It is crucial to note that state courts may, and sometimes do, construe their state constitutions in ways that appear to depart from the literal meaning of the text. In Arizona, for example, despite the strong anti-funding language contained in the state charter, the state Supreme Court has upheld programs of reimbursement to sectarian organizations for aiding families in financial need,[4] and tax credits for money contributed to organizations supporting the payment of tuition for low-income students at religious schools.[5] And in Ohio, prior to Zelman, the Ohio Supreme Court upheld the Cleveland school voucher plan as consistent with a clause in the state constitution barring religious sects from having "control of any part of the school funds of this state."[6] Decisions like these from Arizona and Ohio sometimes rest on textual interpretations of the language of the state constitution, and sometimes rest on an implicit urge by state courts to conform their state's constitutional norms with comparable norms on the federal level. In cases of indirect financing of state FBOs through beneficiary choice plans, those interpretive moves and conforming urges may coincide - following the lead of the Supreme Court in Zelman, state courts
State courts may conclude that beneficiary choice programs involve transfers to service beneficiaries, who separately and independently make the transfers to FBO providers. But, there is no guarantee that state courts will so construe such state provisions.

Two recent cases, one decided by a Florida Circuit Court, and the other pending in a state court in Georgia, illustrate the potential roadblocks that state constitutional law may impose on the faith-based initiative.
may conclude that beneficiary choice programs involve transfers to service beneficiaries, who separately and independently make the transfers to FBO providers. But, as we discuss here later in connection with Florida's school voucher program, there is no guarantee that state courts will so construe such state provisions.

Two recent cases, one decided by a Florida Circuit Court, and the other pending in a state court in Georgia, illustrate the potential roadblocks that state constitutional law may impose on the faith-based initiative. In Holmes v. Bush,[7] Florida's state-wide school voucher program, designed to provide families of children in failing public schools a private-school option, was challenged on a number of state law grounds. One challenge invoked Article I, section 3 of the Florida Constitution, which provides that "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." Rejecting arguments that the Supreme Court's decision in Zelman should be viewed, by analogy, as settling the state law issues surrounding voucher programs, the Circuit Court's opinion ruled that the state voucher program violated this section of the Florida Constitution. The Court reasoned that Florida's constitution provided a "clear and unambiguous" directive - no public funds may be used to aid a religious institution. The Court found unpersuasive the state's claims that the voucher financing method disconnected the government from the money flowing to religious schools, describing the argument as "a colossal triumph of form over substance." The court ordered the Opportunity Scholarship program halted for the 2002-2003 school year.[8] The ruling is under appeal.


Where federal law permits, states might contract with FBOs using federal money only, thereby staying clear of the restrictions in state constitutions.
A similar state constitutional attack on direct financing of FBOs is now underway in Bellmore v. United Methodist Children's Home and Georgia Department of Human Resources, discussed further in Part III, which follows. Although the employment issues in Bellmore have attracted the most attention, the complaint also alleges that the contract between the Department of Human Resources and the United Methodist Children's Home, providing for foster care of children in state custody, transfers state funds in violation of Georgia's Constitution. Article I, Section. II, paragraph VII of that document provides: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution." The United Methodist Children's Home quite emphatically identifies itself as a sectarian institution, one that asserts and exercises the right to hire only co-religionists and which involves its wards in religious experience. Prior interpretations of this provision of Georgia's constitution have been quite strict,[9]but it remains to be seen if Georgia state courts will now construe it in a way that permits such programs to continue.

One possibility for states whose constitutions prohibit transfer of state funds to FBOs is to function as administrative conduits for federal funds that pass through the hands of state and local governments on their way to providers. Many federal programs for which FBOs are eligible are packaged into block grants, administered directly by state and local social service offices. Where federal law permits (as in the Child Care Development Fund, described in Part IV), states might contract with FBOs under such programs using federal money only, thereby staying clear of the restrictions in state constitutions.[10]

As suggested above, state constitutional provisions restricting government transfers to FBOs may create significant impediments to state service contracts with, or grants to, FBOs. One potential solution to this problem comes in the form of federal constitutional attack on the validity of such provisions. During Separationism's heyday in federal constitutional law, such an attack would have been unthinkable. In that period, state constitutional law on this subject typically tracked that of the federal law of the Establishment Clause, and it would have been odd indeed for courts to rule that state constitutions could not do explicitly what the Supreme Court was doing in the name of the Establishment Clause.


Advocates have begun to argue that the Little Blaines should be invalidated, or limited in their scope, by reason of federal constitutional law.
Now that the federal barriers to aid to FBOs have fallen to some extent, a gap has been created between federal restrictions and the apparent restrictions associated with the Little Blaine Amendments. Into this gap have charged litigators and commentators eager to eliminate the impediments imposed by the Little Blaines.[11] Motivated primarily by their concern for school voucher programs, these advocates have begun to argue that the Little Blaines should be invalidated, or limited in their scope, by reason of federal constitutional law. Such an argument proved successful in the U.S. Court of Appeals for the 9th Circuit in Davey v. Locke,[12] and is likely to reappear in courts in the near future. Indeed, in the previously discussed Holmes v. Bush case, the defenders of the voucher program argued that excluding religious schools from the program would violate the federal Constitution. The Circuit Court made no mention of this argument, but it enjoined the entire voucher program, as applied to both religious and secular schools, thereby obviating the inequality complained of by program defenders.

Three sets of federal constitutional arguments are typically advanced against the Little Blaine Amendments. The first, accepted by the Ninth Circuit in Davey v. Locke, is that the Free Exercise Clause of the First Amendment forbids states, in their constitutions or otherwise, from treating religious entities worse than secular ones in the distribution of state support. The second set of arguments, closely related to the first, rests on the Equal Protection Clause of the 14th Amendment. Drawing on the law of forbidden discrimination, such as that based on race, advocates of
Drawing on the law of forbidden discrimination, advocates assert that any state classifications that turn on the religious character of a private entity are presumptively unconstitutional.
this approach assert that any state classifications that turn on the religious character of a private entity are presumptively unconstitutional. Both of these lines of argument are sweeping, and threaten to undermine virtually all attempts by states to maintain church-state separation any broader than is currently required by the federal constitution.

The third line of federal constitutional attack on the Little Blaines is, in our judgment, the most promising. This set of arguments focuses on the anti-Catholic animus that surrounded the enactment of the Little Blaines, at least in some of the states in whose constitutions they appear. This line of argument may depend, however, on state-to-state proof of that sort of animus. One hundred years or more after enactment of such provisions, that proof may be hard to uncover.

Moreover, considerations of federalism, toward which a narrow majority of the current Supreme Court appears sympathetic in other contexts, may operate to limit the force of any of these attacks on the Little Blaines. States will argue that they should be free to maintain their own policies of church-state separation, even if the Supreme Court has relaxed those policies at the federal level. That the Justices who most strenuously reject Separationism are the same ones who most warmly embrace the concerns of states in the federal system suggests the total unpredictability of Supreme Court resolution of the questions addressed here.

[1] We explore this field in greater depth in Ira C. Lupu & Robert W. Tuttle, Zelman's Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional battles, 78 Notre Dame L. Rev. __ (forthcoming, 2003). The current draft of the article can be downloaded from the Roundtable website (www.religionandsocialpolicy.org), or from the Social Science Research Network (www.ssrn.com).
[2] The State Constitutional Provisions also includes annotations of relevant decisions from each of the states on the scope of these constitutional provisions. Some of these decisions are relatively recent, but some are quite old, and the landscape of church-state relations in America has changed so much in the past 40 years that older decisions may not be a safe basis from which to predict what state courts would decide today. The Appendix is thus a useful starting place for research into the law of each state, but it is no substitute for in-depth research into the complex questions of state constitutional law that may arise under these provisions.

[3] 330 U.S. 1 (1947).
[4] Community Council v. Jordan, 102 Ariz. 448, 432 P.2d 460 (1967).
[5] Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999).
[6] Ohio Constitution, Art. VI, sec. 2. The decision upholding the Cleveland plan against an attack based on this provision is Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 711 N.E.2d 203 (1999).
[7] Holmes v. Bush, Second Judicial Circuit, Leon Cty, Florida, No. CV 99-3370, Aug. 5, 2002. Earlier claims that the program violated other provisions of the state constitution had already been resolved in Bush v. Holmes, 767 So. 2d 768 (FL 1st DCA 2000), or had been dismissed voluntarily.
[8] The court did not explain why the voucher program could not go forward without the participation of the religious schools.
[9] See Bennett v. City of La Grange, 112 S.E. 482 (Ga. 1922) (state may not reimburse Salvation Army for services rendered); 1969 Op. Att'y Gen. No. 69-136 (state funding of YMCA likely to violate state constitution).
[10] The Charitable Choice provisions of the Personal Responsibility and Work Opportunities Reconciliation Act of 1996 specifically acknowledge state constitutional restrictions on government financing of FBOs.
[11] The Becket Fund, here in Washington, DC, is leading the litigation attack on the Little Blaines. For commentary arguing that the Little Blaines may violate the federal Constitution, see Toby J. Heytens, School Choice and State Constitutions, 86 Va. L. Rev. 117 (2000); Joseph P. Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol'y 657 (1998); Eric Treene, "The Grand Finale is Just the Beginning: School Choice and the Coming Battle Over Blaine Amendments.," available at www.becketfund.org.
[12] 2002 U.S. App. LEXIS 14461 (9th Cir., 2002). Davey ruled unconstitutional Washington State's exclusion of students pursuing theology majors at religiously affiliated colleges from eligibility for its state scholarship program. The State's program apparently covered students taking courses in theology at branches of the
state university, and the court held that the discrimination against students at religiously affiliated colleges violated the Free Exercise Clause of the First Amendment to the U.S. Constitution.