Impartial News and Analysis of Faith-Based Social Services
from the Rockefeller Institute of Government, State University of New York

State Constitutional Provisions

Alabama | Alaska | Arizona | Arkansas | California | Colorado | Connecticut | Delaware | Florida | Georgia | Hawaii | Idaho | Illinois | Indiana | Iowa | Kansas | Kentucky | Louisiana | Maine | Maryland | Massachusetts | Michigan | Minnesota | Mississippi | Missouri | Montana | Nebraska | Nevada | New Hampshire | New Jersey | New Mexico | New York | North Carolina | North Dakota | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Vermont | Virginia | Washington | West Virginia | Wisconsin | Wyoming

Please explore our supplementary compilation of the non-establishment provisions in each of the fifty state constitutions.

For each state we have included:

• The constitutional provisions relating to the establishment of religion and the funding of religiously affiliated organizations.
• Four questions pertaining to each state's constitutional provisions.
• and general comments.

  The comments contain a brief explanation of how the state attorneys general and high courts have interpreted their relevant constitutional provisions. Citations for the cases or opinions mentioned are listed below each comment in the order in which they are discussed. These comments and associated citations are intended to be representative rather than exhaustive.

Click here for a graphical summarization of the answers to these questions
with gray shading indicating positive responses.

Does the constitution have a general non-establishment clause?

• These clauses tend be very similar in both language and application to the Federal Constitution.
• Ten states have a general non-establishment clause.

Does the constitution have a "no-funding" clause that prohibits funding of religious organizations?

Does the constitution have an education-specific "no-funding" clause?

In its prohibitions on spending, does the constitution make a distinction between direct and indirect funding?

ALABAMA

Location: Alabama Const., Art. I, § 3

Text: That no religion shall be established by law ... nor to pay any tithes, taxes or other rate for building or repairing any place of worship, or for maintaining any minister or ministry ....

Location: Alabama Const. Art XIV § 263

Text: No money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian or denominational school.

Yes.

Yes.

Yes. However, it deals exclusively with monies "raised for the support of the schools," rather than just a more general reference to "any funds."

No.

COMMENT:
Alabama is a state likely to be hostile towards an educational voucher program. However, they may be more willing to allow funding in other non-educational areas. The State Supreme Court has ruled that the general establishment clause of the Alabama Constitution is not to be read as more restrictive then the Federal Constitution.

Hunt v. Windom, 604 So. 2d 395 (1992) (available at 1992 Ala. LEXIS 1136).
Overview: A taxpayer had standing to challenge the unlawful disbursement of state funds by a governor who allegedly used state funds to maintain a ministry.

Alabama Educ. Ass'n v. James, 373 So. 2d 1076 (1979) (available at 1979 Ala. LEXIS 3024).
Overview: A student grant program did not violate the establishment clauses of the federal and state constitutions because it had a secular purpose, did not advance religion, made benefits neutrally available, and restricted sectarian uses.

Opinion of Justices, 291 Ala. 301, 280 So. 2d 547 (1973) (available at 1973 Ala. LEXIS 1097).
Overview: A bill that was to provide tuition aid to resident students who were attending private accredited colleges or universities in Alabama was unconstitutional because it constituted an excessive entanglement with religion.

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ALASKA

Location: Alaska Const. art. I, § 4
Text: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof

Location: Alaska Const. art. VII, § 1

Title: Public Education.

Text: Schools and institutions so established shall be free from sectarian control. No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.

Yes.

No.

Yes.

Yes. The Alaska Constitution forbids only the expenditure of monies for the "direct" benefit of private schools.


COMMENT:
The Alaska courts would likely be hostile to a educational voucher program. Notice no private school may receive direct benefit from the state, whether or not that school is sectarian in nature. The Alaska Supreme Court has struck down school busing provisions, and educational grants for private colleges. There may be more room for maneuvering when it comes to more general funding. The Court did allow the funding a sectarian hospital.

Matthews v. Quinton, 362 P.2d 932 (1961) (available at 1961 Alas. LEXIS 85).
Overview: Legislative scheme which provided for free transportation of private school students was unconstitutional and violated the state organic act prohibition against the expenditure of public funds for private schools.

Sheldon Jackson College v. State, 599 P.2d 127 (1979) (available at 1979 Alas. LEXIS 552).
Overview: Tuition grant program that awarded students at private colleges difference between tuition at private and public colleges violated Alaska Constitution, which prohibited payment of public funds for direct benefit of a private educational institution.

Lien v. Ketchikan, 383 P.2d 721 (1963) (available at 1963 Alas. LEXIS 144).
Overview: An action to prevent a city from leasing a hospital built with public funds to a non-profit charitable corporation managed by a religious order was properly dismissed. There was no indication that the hospital would be used to further religion.

Attorney General Opinion #661970624 (1/12/00) "AIDEA may not use or place at risk its funds in any loan or extension of credit to a private school because Art. VII, sec. 1 of the Alaska Const. Bars use of public funds to directly benefit private schools; AIDEA generally may not participate in a loan or extend credit to a private, religious school under the Establishment Clauses of the United States and Alaska Constitutions."

Attorney General Opinion #66382011400 (10/20/81) grant to sectarian college to operate public tv station may be constitutional where station is totally separate from religious & educational functions.

Attorney General Opinion #66191021700 (3/4/91) direct subsidy under child care grant program might be considered excessive government entanglement with religion.

Attorney General Opinion #66379002700 (4/16/80) establishment clause does not necessarily bar contract with corporation controlled by religious organization.

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ARIZONA

Location: A.R.S. Const. Art. 2, § 12
Text: No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction

Location: A.R.S. Const. Art. 9, § 10
Text: No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation

No.

Yes.

Yes. Funding is forbidden to both sectarian and non-sectarian private schools.

No.

COMMENT:
Several Arizona Supreme Court opinions seem to soften the strong anti-funding language of the constitution. They allowed a tuition tax credit program where funds were paid into "tuition organizations" to continue. They also upheld a program in which sectarian organizations were being reimbursed for aid provided to families in need. The Court held that the "true beneficiaries" of the program are the families, not the organizations.

Pratt v. Arizona Bd. of Regents, 110 Ariz. 466, 520 P.2d 514 (1974).
Overview: A board of regents could agree to lease a state university's football stadium to a religious speaker because the total amount of the lease was a fair rental value and the lease was not an appropriation of state property for religious purposes.

Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999) (available at 1999 Ariz. LEXIS 8); cert. denied October 4, 1999, Reported at: 1999 U.S. LEXIS 6553.
Overview: A state statute which allowed a tax credit for those who donated to school tuition organizations was not unconstitutional where the credit served as a neutral adjustment mechanism for equalizing tax burdens and encouraged educational expenditures.

Community Council v. Jordan, 102 Ariz. 448, 432 P.2d 460 (1967).

Overview: A state's payment of less than the actual cost of assistance given to the destitute in emergency situations, and no administration costs, was not an unconstitutional aiding of the sectarian institution through which the assistance was made available.

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ARKANSAS

Location: Ark. Const. Art. 2, § 24

Title: Religious liberty

Text: All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship above any other.

No.

Yes.

No.

No.

COMMENT:

Cortez v. Independence County, 287 Ark. 279, 698 S.W.2d 291 (1985).
Overview: A resolution of the public health and education board to issue bonds to fund construction at a college with religious ties was not unconstitutional because overall it neither hindered nor furthered religion.

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CALIFORNIA

Location: Cal Const, Art I § 4

Title: Religion

Text: The Legislature shall make no law respecting an establishment of religion.

Location: Cal Const Art IX § 8.

Title: Appropriation for sectarian schools; Instruction in denominational doctrines

Text: No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.

Location: Cal Const Art XVI § 5.

Title: Public aid for sectarian purposes

Text: Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article XVI.

Yes.

Yes.

Yes.

No.

COMMENT:

California courts appear to be generally hostile toward the aiding of religious institutions. A textbook loan program was held unconstitutional in 1981, and the court rejected the child benefit theory. In an earlier case the Court did uphold a private school transportation program. However, the reasoning in that case relied heavily on the states overwhelming interest in the safety of the children.

California Teachers Assn. v. Riles, 29 Cal. 3d 794, 632 P.2d 953 (1981).
Overview: A statute that authorized the state to lend textbooks to students attending nonprofit, nonpublic schools violated the California Constitution's prohibition against appropriating money for the benefit of religious schools.

California Educational Facilities Authority v. Priest, 12 Cal. 3d 593, 526 P.2d 513 (1974).
Overview: The California Educational Facilities Authority Act and the proposed bond issuance for the benefit of a private university did not violate the First Amendment or provisions of the California Constitution prohibiting state aid for sectarian purposes.

Attorney General Opinion #97-809 – Deals with right of religious school to deny admission to a student solely on the basis that the student does not adhere to the religious beliefs of the school, as well as other issues.

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COLORADO

Location: Colo. Const. Art. V, Section 34

Title: Appropriations to private institutions forbidden

Text: No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.

Location: Colo. Const. Art. IX, Section 7

Title: Aid to private schools, churches, sectarian purpose, forbidden

Text: Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

Art. 2, § 4:

"The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship."

No.

Yes.

Yes.

No.

COMMENT:

The Colorado Supreme court has ruled that a student incentive grant program did not violate the state Constitution. They refused to invalidate the program unless a substantial portion of the functions of the institution are subsumed in the religious mission, or the aid funds a specifically religious activity. The Court has also ruled that the general no-funding provision does not apply to municipalities.

Americans United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072 (1982) (Opinion Modified on Denial of Rehearing August 9, 1982).
Overview: Statutory program providing financial assistance to Colorado residents to enable them to receive postsecondary education, except for studies which were pervasively sectarian, did not violate state constitution.

Lyman v. Town of Bow Mar, 533 P.2d 1129, 188 Colo. 216 (Colo. 1975)

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CONNECTICUT

Location: Conn. Const. Art. VII

Title: (No legal compulsion to join or support church. No preference in religion Equal rights of all religious denominations.)
Text: ... no person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association. No preference shall be given by law to any religious society or denomination in the state.

No.

No.

No.

No.

COMMENT:
The Connecticut Constitution contains no specific anti-funding language. Additionally the Connecticut Supreme Court has held that busing students to private schools would not violate the Constitution as long as the funds do not come directly from the school fund.

Snyder v. Newtown, 161 A.2d 770, 147 Conn. 374 (1960)

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DELAWARE

Location: Del. Const. art I, § 1

Title: Freedom of religion

Text: ... yet no person shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry,

Location: Del. Const. art X, § 3 (2001)

Title:

Text: No portion of any fund now existing, or which may hereafter be appropriated, or raised by tax, for educational purposes, shall be appropriated to, or used by, or in aid of any sectarian, church or denominational school; provided, that all real or personal property used for school purposes, where the tuition is free, shall be exempt from taxation and assessment for public purposes.

No.

Yes.

Yes.

No.

COMMENT:
The Delaware courts may be hostile to appropriations in an educational setting. In 1934 the Delaware court held that transportation of private school students would violate the state's constitution.


State ex rel. Traub v. Brown, 36 Del. 181, 172 A. 835 (1934).

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FLORIDA

Location: Fla. Const., Art. I § 3
Title: Religious freedom.
Text: There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof.

Location: Fla. Const., Art. I § 3
Title: Religious freedom.
Text: 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.

Yes.

Yes.

No.

Yes.

COMMENT:
The Florida Supreme Court has stated that indirect aid to religious organizations may be permissible under some circumstances. If the state action is to promote the general welfare of society, apart from any religious considerations, then it may be valid even though religious interests are indirectly benefited. However, one of Florida's lower courts has recently ruled against the State's school voucher program.

Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (1971).Holmes v. Bush, Second Judicial Circuit, Leon Cty, Florida, No. CV 99-3370, Aug. 5, 2002. (holding that this section prohibits implementation of a school voucher program in which sectarian schools are a majority of participating private schools.)

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GEORGIA

Location: Ga. Const. Art. I, § II, Para. VII  
Title: Religious opinions; freedom of religion
Text: 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.

No.

Yes.

No.

Yes.

COMMENT:

In 1922 the Georgia Supreme Court relied on this provision to strike down a program that reimbursed the Salvation Army for services rendered. Several Attorney General Opinions also support the view that Georgia would be quite hostile to any form of state funding for religious organizations.
Attorney General Opinion #00-5 - The Georgia Constitution prohibits grants to sectarian institutions for the purpose of the Reading Challenge Program

Bennett v. City of La Grange, 112 S.E. 482 (Ga.1922)

1969 Op. Att'y Gen. No. 69-136 (State funding of the YMCA likely to violate the constitution).

1945-47 Op. Att'y Gen. p. 222 (Public transportation to private schools would violate the constitution).

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HAWAII

Location: HRS Const. Art. I, § 4
Title:

Text: No law shall be enacted respecting an establishment of religion ...

Location: HRS Const. Art. X, § 1
Title:

Text: ... nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution...

No.

No.

Yes.

No.

COMMENT:

The Hawaii Supreme court has stated that, at least when it comes to establishment clause jurisprudence, the Hawaii Constitution has not been interpreted differently from then the Federal Constitution. With regards to the education specific provision however, the Hawaii courts have been restrictive, ruling that transportation of students to private schools would violate the Hawaii Constitution.

Spears v. Honda, 51 Haw. 1, 449 P.2d 130 (1968).
Overview: The court struck down a state statute which provided bussing to sectarian schools at public expense as violating the state prohibition against appropriating public funds for the benefit of any sectarian educational institution.

Attorney General Opinion #03-01 - The Constitutionality of School Vouchers in Hawaii

Cammack v. Waihee, 673 F. Supp. 1524 (Haw. 1987).

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IDAHO

Location: Idaho Const. Art. 9 § 5

Title: Education and School Lands
Text: Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation,  or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian or religious purpose

Art. 1, § 4:

"GUARANTY OF RELIGIOUS LIBERTY. ... No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship. ..."

No.

Yes.

Yes. Both the general and education specific clauses are incorporated into the same section of the constitution.

No.

COMMENT:
Idaho's Supreme Court appears to strictly apply this section. They have held that busing of students to private schools, tax credit funding of private schools, and the financing of a religious hospital all violate the Idaho State Constitution.

Board of County Comm'rs v. Idaho Health Facilities Auth., 96 Idaho 498, 531 P.2d 588.
Overview: The Idaho Health Facilities Authority had the statutory and constitutional authority to issue bond anticipation notes for the financing of public hospital improvements, unless the financing aided a religious sect, which owned the hospital.

Epeldi v. Engelking, 94 Idaho 390, 488 P.2d 860 (1971).
Overview: An Idaho statute requiring a state superintendent of schools to allocate state funds for the purpose of transportation of parochial students was unconstitutional because it aided the schools by bringing the students to them.

Attorney General Opinion 97-02 – A proposed tax credit for parents who send their children to private, sectarian schools, would likely be upheld under the state constitution.

Attorney General Guidance Letter 20795 – 2/7/95 – Tax credits for sectarian school tuition would probably be struck down under the Idaho Constitution.

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ILLINOIS

Location: Illinois Const., Art. 10, § 3  
Title: Public Funds for Sectarian Purposes Forbidden

Text: Neither the General Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose.

Art. I, § 4:
"No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship."

No.

Yes.

Yes.

No.

COMMENT:
The Illinois Constitution has a single provision encompassing both general and education-specific prohibitions. The Illinois Supreme Court has stated that this provision is no broader then the First Amendment to the United States Constitution. In 1973 the Illinois high court upheld a program that provided for the transportation of students to private schools at the public expense.

Board of Education v. Bakalis, 54 Ill. 2d 448, 299 N.E.2d 737 (1973).
Overview: Statute requiring transportation, at public expense, of parochial school students on the same basis as public school students was constitutional as primarily a health-and-safety measure for the benefit of all students.

Toney v. Bower, 318 Ill. App. 3d 1194; 744 N.E.2d 351 (2001).
Overview: Illinois income tax credit for qualified educational expenses that was likely to primarily benefit parents of parochial school students did not violate federal or state establishment clause standards.

Griffith v. Bower, 319 Ill. App. 3d 993, 747 N.E.2d 423 (2001).
Overview: The suit challenging the constitutionality of the Illinois Education Expense Credit Act was properly dismissed, because the education expense credit had a secular purpose and did not involve the appropriation of public funds.

Constitution of the United States. People ex rel. Klinger v. Howlett, 56 Ill. 2d 1, 305 N.E.2d 129 (1973).

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INDIANA

Location: Ind. Const. Art. 1, § 4,6
Title: No preference to any creed

Text: Section 4. No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

Section 6. No money shall be drawn from the treasury, for the benefit of any religious or theological institution.

No.

Yes.

No.

No.

COMMENT:
Indiana is another state with very little case law on point. Several Attorney General Opinions' may still be helpful.

Atty. Gen. Opn. 1934, p. 356. (Division of Public Health may not contribute drugs to privately-owned charitable institutions for treatment of certain infectious diseases without violating this provision.)

Atty. Gen. Opn. 1967, No. 3, p. 9. (The furnishing of free bus transportation of children to and from parochial schools on the same basis as that furnished children attending public schools does not violate this provision, any benefit to the sponsoring religious organization being incidental to the protection and education of the children.)

Center Township of Marion County v. Coe, 572 N.E.2d 1350 (1991).
Overview: Trustee's practice of using religious missions, which conditioned provision of services on attendance of religious services, to provide shelter to homeless poor individuals patently violated Free Exercise and Establishment Clauses of Constitution.

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IOWA

Location: Iowa Const., Art. I § 3
Title: religion

Text: The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry.

Yes.

Yes.

No.

No.

COMMENT:
There is little in the Iowa State Constitution would act as a barrier to "charitable choice" type legislation. Iowa does have a general establishment clause, but there is no case law pertaining to this subject matter.

1978 Iowa Op. Atty. Gen. 436, Opinion No. 78-2-18 - A religious institution may use religion as an employment criteria only in relation to positions in which duties relate to the religious purpose of the institution.

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KANSAS

Location: Kan. Const. B. OF R. § 7

Title: religious liberty; property qualification for public office.

Text: The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship ... nor any preference be given by law to any religious establishment or mode of worship....

Location: Kan. Const. Sec. 6 Art. 6
Title: Finance.
Text: No religious sect or sects shall control any part of the public educational funds.

No.

Yes.

Yes.

No.

COMMENT:
There is little to no case law on this topic in Kansas jurisprudence. The Constitution does not contain a general no-funding provision and the education specific clause is worded differently then most other states. Only funds that are part of the "public education funds" are proscribed from use by religiously affiliated groups.

Attorney General Opinion No. 97-10 - A city may provide financial assistance to a social service agency that subscribes to certain religious tenets as long as the use of such funds conforms with the public purpose doctrine and the funds are not used to secure or maintain a place where any form of religious worship is conducted or where any religious doctrine is taught.

Attorney General Opinion No. 2000-32 - The school voucher programs proposed in 2000 Senate Bill No. 295, 2000 House Bill No. 2504, and 2000 House Bill No. 2462 do not result in a violation of the Establishment Clause of the United States Constitution. However, the voucher programs do result in a violation of Section 7 of the Bill of Rights of the Kansas Constitution and Article 6, Section 6 of the Kansas Constitution.

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KENTUCKY

Location: Ky. Const. § 5 189
Title: Right of religious freedom

Text: School money not to be used for church, sectarian, or denominational school.
No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.

§ 5 – "Right of religious freedom."
"No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience."

No.

No.

Yes.

No.

COMMENT:
The Kentucky Constitution does not have any general anti-funding language. However, Kentucky Courts appear to strictly enforce the educational no-funding provision. The Supreme Court of Kentucky has held that both textbook loan and student transportation programs violate the State Constitution.

Neal v. Fiscal Court, 986 S.W.2d 907 (1999).
Overview: Where funds allocated for transportation of non-public schoolchildren went directly to providers of transportation and provided only an indirect, remote, or incidental effect on the nonpublic schools, the funding was within constitutional limits.

Fannin v. Williams, 655 S.W.2d 480 (1983).
Overview: The Kentucky statute that authorized the supplying of textbooks to children in Kentucky's nonpublic schools was an unconstitutional use of the commonwealth's funds under the Kentucky Constitution.

Fannin v. Williams, 655 S.W.2d 480 (Ky. 1983).

Sherrard v. Jefferson, 294 Ky. 469, 171 S.W.2d 963 (1942).

LOUISIANA

Location: La. Const. Art. I, § 8
Title: Freedom of Religion

Text: No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof.

Yes.

No.

No.

No.

COMMENT:
Until 1974 Louisiana's Constitution had a provision barring both direct and indirect aid to sectarian organizations. That provision was eliminated and now only the general non-establishment clause could pose a barrier. There has been no case law on the subject since the Constitutional change.

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MAINE

Location: M.R.S. Const. Art. 1, § 3

Title: Religious freedom; sects equal; religious tests prohibited; religious teachers
Text: ... and no subordination nor preference of any one sect or denomination to another shall ever be established by law

No.

No.

No.

No.

COMMENT:
The constitution of the State of Maine contains no provision that would act as a barrier to "charitable choice" type legislation.

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Maryland

Location: Md. Dec. of R. art. 36

Title: religious freedom
Text: ... nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry;

Nothing in this article shall constitute an establishment of religion.

Yes.

Yes.

No.

No.

COMMENT:
The Court of Appeals of Maryland has upheld student transportation programs, as well as state aid to private religious universities.

Board of Educ. v. Wheat, 174 Md. 314, 199 A. 628 (1938).

Horace Mann League of United States of Am., Inc. v. Board of Pub. Works, 242 Md. 645, 220 A.2d 51

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MASSACHUSETTS

Location: Mass. Const. Ann. Amend. Art. XVIII

Title Expenditure of Public Money for Certain Institutions Prohibited.
Text: No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the Commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the Commonwealth or federal authority or both ... and no such grant, appropriation or use of public money or property or loan of public credit shall be made or authorized for the purpose of founding, maintaining or aiding any church, religious denomination or society. Nothing herein contained shall be construed to prevent the Commonwealth from making grants-in-aid to private higher educational institution or to students or parents or guardians of students attending such institutions.

No.

Yes. The Massachusetts provision forbids expenditure on any organization that is not under the "exclusive control" of the state, whether or not that institution is sectarian in nature.

No.

No.

COMMENT:
The language of the Massachusetts proscribes all government funding of private organizations regardless of religious affiliation. The case law does not soften the State's position on the issue. The Justices of the State Supreme Judicial Court have stated that the substantial purpose of the provision was to prevent direct assistance to private or sectarian charitable institutions and to preclude expenditure of public funds or appropriations for them. The Court struck down a textbook loan program as violative of this section.

Opinion of the Justices 354 Mass 779, 236 NE2d 523 (1968).

Opinion of Justices 357 Mass 846, 259 NE2d 564 (1970).

Bloom v. School Committee of Springfield, 376 Mass. 35, 379 N.E.2d 578.
Overview: A state law requiring public school systems to loan books to private school students was unconstitutional in violation of Massachusetts' no-establishment of religion clause.

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MICHIGAN

Location: MCLS Const. Art. I, § 4

Title Freedom of worship and religious belief; appropriations.
Text: ... to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose.

Location: MCLS Const. Art. VIII, § 2

Title Free public elementary and secondary schools; discrimination; prohibition against use of public monies or property for nonpublic schools; transportation of students.
Text: No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, preelementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school.

No.

Yes.

Yes.

Yes.

COMMENT:
The Michigan Constitution contains some of the most restrictive language in any of the fifty state constitutions. The Michigan Supreme Court has held that voucher type programs are unconstitutional. They have also held that providing ancillary services such as textbooks and transportation are unconstitutional.

Traverse City Sch. Dist. v. Attorney General, 384 Mich. 390, 185 N.W.2d 9 (1971).

In re Advisory Opinion the Const. of 1974 PA 242, 394 Mich. 41, 228 N.W. 2d. 772 (1975).

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MINNESOTA

Location: Minn. Const., Art. I, § 16

Title: Freedom of conscience; no preference to be given to any religious establishment or mode of worship
Text: ... or any preference be given by law to any religious establishment or mode of worship ... nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.

Location: Minn. Const., Art. XIII, § 2

Title: Prohibition as to aiding sectarian school
Text: In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.


Does the constitution have a general non-establishment clause?

No.

Yes.

Yes.

No.

COMMENT:
In Minnesota most of the case law in this area, like many other states, is focused on education. Minnesota courts upheld a student busing provision in 1970, but stated that the decision represented the outer limits of constitutionality in the State. The State Supreme Court struck down a tax credit provision that allowed parents to send their children to non-public schools. In that case, however, they relied solely on the Federal Constitution.

Minnesota Higher Education Facilities Authority v. Hawk, 305 Minn. 97, 232 N.W.2d 106 (1975). Overview: Issuance of revenue bonds to private religious-affiliated educational institutions did not violate state constitution or Establishment Clause because bonds financed nonsectarian facilities and money was used solely for secular educational purposes.

Minnesota Fed'n of Teachers v. Mammenga, 500 N.W.2d 136 (1993).
Overview: The Post-Secondary Enrollment Options Act did not violate the Minnesota Constitution's establishment clauses as applied to a sectarian college because the college's benefit from the Act funds was indirect and incidental.

Minnesota Fed'n of Teachers v. Mammenga, 485 N.W.2d 305 (1992).
Overview: A statute that partially reimbursed colleges did not violate the establishment of religion clauses of the state constitution because the participating colleges were neutrally defined and any benefit for the colleges was indirect.

Americans United Inc. As Protestants, etc. v. Ind. School Dist., 288 Minn. 196, 179 N.W.2d 155 (1970).

Minnesota Civil Liberties Union v. State, 302 Minn. 216, 224 N.W.2d 344 (1974).

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MISSISSIPPI

Location: Miss. Const. Ann. Art. 3, § 18

Title: Freedom of religion
Text: ... and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred.

Location: Miss. Const. Ann. Art. 4, § 66  

Title: Law granting donation or gratuity
Text: No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use.

Location: Miss. Const. Ann. Art. 8, § 208  

Title: Control of funds by religious sect; certain appropriations prohibited
Text: No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.


Does the constitution have a general non-establishment clause?

No.

Yes.

Yes.

No.

COMMENT:
The Mississippi Supreme Court has upheld a textbook loan program. It held that the program did not constitute a direct or indirect aid to the respective schools which the pupils attended. The reasoning in the case, which interpreted Mississippi's general no-funding provision, would seem to indicate that Mississippi may be more open to "charitable choice" type programs then a literal reading of the constitution may otherwise indicate.

Chance v. Mississippi State Textbook Rating & Purchasing Bd., 190 Miss. 453, 200 So. 706 (1941).

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MISSOURI

Location: Mo. Const. Art. 1, § 7  

Title: Public aid for religious purposes--preferences and discriminations on religious grounds
Text: That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Location: Mo. Const. Art. 9, § 8  

Title: Prohibition of public aid for religious purposes and institutions
Text: Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.



Does the constitution have a general non-establishment clause?

No.

Yes.

Yes.

Yes. The general "no funding" provision forbids both direct and indirect aid to religious organizations. The education specific provision makes no such distinction.

COMMENT:
There is no case law in Missouri focused on the general no-funding provision. The cases dealing with the education specific clause tend to be fairly restrictive in their enforcement of the provision. The Missouri Supreme Court has held that textbook loan programs and student transportation programs violate the section.

Mallory v. Barrera, 544 S.W.2d 556 (1976).
Overview: A judgment was proper because the use by the state of public funds to provide textbooks for use in parochial schools, or to provide transportation for parochial school students, was impermissible under the constitution.

Paster v. Tussey, 512 S.W.2d 97 (1974).
Overview: The statute that authorized an expenditure of state funds to provide textbooks to pupils and teachers of non-public schools was unconstitutional because it violated the separation of church and state.

McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 (1953).

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MONTANA

Location: Mont. Const., Art. II § 5 (2001)
Title: Freedom of religion.

Text: The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Location: Mont. Const., Art. X § 6

Title: Aid prohibited to sectarian schools.
Text: The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.



Does the constitution have a general non-establishment clause?
Yes.

Yes.

Yes.

Yes. Both "no-funding" provisions are included within the same section. The provision forbids direct and indirect funding for both educational and other purposes.

COMMENT:
The Montana Supreme Court has held that payment of public funds to persons providing medical, hospitalization, and foster home care to indigents who have sought or received assistance from private rather than public adoptive agencies does not violate the State Constitution.

State ex rel. Chambers v. School Dist., 155 Mont. 422, 472 P.2d 1013 (1970).
Overview: A school district was not entitled to levy or collect taxes for the purpose of hiring parochial school teachers because the Montana Constitution clearly and unambiguously prohibited the appropriation of public funds to support sectarian schools.

Welfare Bd. v. Lutheran Social Serv., 156 M 381, 480 P2d 181 (1971).

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NEBRASKA

Location: Ne. Const. Art. 7, § 11  

Title: Appropriation of public funds
Text: Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature

Art. 1, § 4:
"No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted."

Does the constitution have a general non-establishment clause?

No.

No.

Yes. The Nebraska Constitution forbids any appropriation of public funds to private schools, regardless of there religious affiliation.

No.

COMMENT:
The Nebraska Constitution contains no general anti-funding language, but the State courts appear to strictly enforce the education provision. The Court has ruled that text book loan programs violate the State Constitution. The Attorney General of Nebraska has recently opined that grants, even competitive grants, to private religiously affiliated schools would violate the State Constitution.

Gaffney v. State Dep't of Education, 192 Neb. 358, 220 N.W.2d 550 (1974).
Overview: The parents were not entitled to have the free loan of textbooks from a school district on behalf of their children who were enrolled in a private parochial school when an act authorizing the furnishing of the textbooks was unconstitutional.

State ex rel. Rogers v. Swanson, 192 Neb. 125, 219 N.W.2d 726 (1974).
Overview: A statute that provided tuition aid to private college students violated the Establishment Clause for its failure to limit the aid to secular studies, and violated the Nebraska Constitution by funding colleges not owned and controlled by the state.

1994 Attorney General Opinion #27 (94027) (4/12/94) Parochial School Access to Telecomputing Services Provided by Educational Service Units. "We see no constitutionally significant difference between a parochial school student utilizing a library card catalog through Internet access or by physically visiting the library. In both instances, the student is utilizing a publicly funded educational resource, but no ‘appropriation' to a non-public institution is involved."

1995 Attorney General Opinion #18 (95018) – Whether Nonpublic Schools May Benefit Directly or Indirectly from Grants Awarded from the Education Innovation Fund.

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NEVADA

Location: Nev. Const. art. 11, § 10  

Title: No public money to be used for sectarian purposes
Text: No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.


Does the constitution have a general non-establishment clause?

No.

Yes.

No.

No.

COMMENT:
There is no recent case law on the Nevada no-funding provision. The Nevada Attorney General, in a sixty year old opinion, stated that monies could be granted to a sectarian hospital for crippled children so long as no religious instruction occurred. In a slightly more recent opinion the Nevada AG opined that private school students could not attend classes at public schools without violating this provision.

Attorney General Opinion #158 (1/24/74) – A local school board cannot provide transportation on existing school bus routes for nonpublic school pupils, nor may nor may they loan or give books, or other instructional material to nonpublic school pupils.

Attorney General Opinion #278 (11/15/65) – The enrollment of a private or parochial school pupil in public schools, because classes are available in the public schools which are not offered in the parochial or private schools, would violate Section 10 of Article XI, of the Nevada Constitution.

Attorney General Opinion #B-40 (2/11/41) – Crippled children are placed in sectarian hospital solely as patients and without any attempt to instruct or guide them in religious tenets. Constitutional amendment against using public funds for sectarian purposes cannot be construed to prevent necessary hospitalization in sectarian institutes where no instruction of any kind is imparted.

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NEW HAMPSHIRE

Location: RSA Const. Pt. 2, Art. 83
Title: [Encouragement of Literature, etc.; Control of Corporations, Monopolies, etc]

Text: Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.

Location: RSA Const. Pt. 1, Art. 5

Title: religious Freedom Recognized
Text: Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.



Does the constitution have a general non-establishment clause?

No.

No.

Yes.

No.

COMMENT:
The New Hampshire Constitution does not have a general no-funding provision, and there is little to no case law on the education specific provision. A recent opinion statement by the Supreme Court of New Hampshire approves as constitutional a program which allows school districts to pay a portion of private school tuition so long as adequate safeguards are in place to insure that the monies do not directly benefit any religious activities.

Opinion of the Justices (Choice in Education), 136 N.H. 357, 616 A.2d 478 (1992).
Overview: A senate bill proposed to establish a parental choice in education program. The senate forwarded the following certified question to the court: Would the provisions in N.H. Rev. Stat. Ann. §§ 194:61 and 194:62, which allowed a parent to send a child to any state approved school, which could include a sectarian school, and required the sending school to pay up to 75 percent of the resident sending school's tuition to the new school, violate N.H. Const. art. 6, part I, which provided that no person would be compelled to pay towards the support of the schools of any sect or denomination? The court answered the question in the affirmative because the proposed legislation violated the plain meaning of N.H. Const. art. 6, part I. The resident sending district's payments would constitute an unrestricted application of public money to sectarian schools. The court did not answer the second question because the answer to the first question eliminated sectarian schools from the parental choice program and it could not determine whether the legislature would have continued interest in the legislation if that group was excluded from the program.

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NEW JERSEY

Location: N.J. Const., Art. 1, Para. 3
Title:

Text: ... nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.

Art. 1, § 4:
"There shall be no establishment of one religious sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust."

Does the constitution have a general non-establishment clause?

No.

Yes.

No.

No.

COMMENT:

Everson v. Board of Education, 133 N.J.L. 350 (1945).

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NEW MEXICO

Location: N.M. Const. art. XII, § 3  

Title:

Text: The schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and no part of the proceeds arising from the sale or disposal of any lands granted to the state by congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.

Art. 2, § 11:
"No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship."

No.

No. However, The New Mexico Constitution does forbid aid to any "private" organization, regardless of religious affiliation.

Yes.

Yes. Both direct and indirect funding of any private entity are forbidden.

COMMENT:
There is not an abundance of case law in this area of New Mexico law. The Attorney General has written several opinions that seem to indicate that New Mexico may be more open to government / religious organization partnerships then the plain language of the Constitution would otherwise seem to indicate.

Attorney General Opinion 99-01 – 1/29/99 - A school voucher program involving the use of public money to provide parents of private school children with tuition assistance raises serious and substantial state constitutional questions, most significantly under Article XII, Section 3, which proscribes the use of public money for the support of private schools, and the anti-donation clause of Article IX, Section 14.

1979 Op. Att'y Gen. No. 79-7. (Grants to students to attend private religiously affiliated colleges may not violate this provision so long as the grants go to the students rather than to the schools.)

1976 Op. Att'y Gen. No. 76-6. (A school voucher program would benefit the children, not the schools, and thus would likely be valid under the New Mexico constitution.)

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NEW YORK

Location: NY CLS Const Art XI, § 3
Title:

Text: Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning.



Does the constitution have a general non-establishment clause?

No.

No.

Yes.

Yes. The education specific clause forbids expenditures that are directly or indirectly in aid of sectarian schools.

COMMENT:
The New York Constitution does not contain any general anti-funding language. The education specific provision does prohibit both direct and indirect aid to religiously affiliated schools. The New York Supreme Court has upheld a textbook loan program as not violating this provision. However, in another case the Court held that a loan program that involved other school equipment did violate this section.

Griffin v. Coughlin, 88 N.Y.2d 674, 673 N.E.2d 98 (1996), cert. denied, January 6, 1997, 1997 U.S. LEXIS 59.
Overview: Commissioner of correctional services violated Establishment Clause of First Amendment by denying inmate participation in family visitation program due to inmate's refusal to participate in drug program with required religious practices.

Board of Education v. Allen, 20 N.Y.2d 109, 228 N.E.2d 791 (1967).
Overview: A statute that provided for school authorities to provide textbooks to children in public and private schools did not violate the Establishment Clause of the First Amendment because aiding religious schools was a collateral effect, not its intent.

Non-Public Schools Report by the Attorney General (May 2002) available at http://www.oag.state.ny.us/press/reports/non_public_schools_report.pdf.

Meek v Pittenger, 421 US 349, 44 L Ed 2d 217, 95 S Ct 1753 (1975).

NORTH CAROLINA

Location: N.C. Const. art. I, § 13  
Title: Religious liberty

Text: All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.


Does the constitution have a general non-establishment clause?

No.

No.

No.

No.

COMMENT:
North Carolina's constitution does not have any language that would appear to bar funding to sectarian organizations.

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NORTH DAKOTA

Location: N.D. Const. Art. 8, § 5
Title:

Text: No money raised for the support of the public schools of the state shall be appropriated to or used for the support of any sectarian school.


Does the constitution have a general non-establishment clause?

No.

No.

Yes.

No.

COMMENT:
There is no relevant case law in North Dakota on this issue. The education specific provision only places restrictions on funds that are "raised for the support of public schools."

Attorney General Letter Opinion 2003-L-06 (2/10/03) Money raised by a public school district educational technology tax levy may not be shared with parochial/private schools.

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OHIO

Location: OH Const I § 7 
Title:

Text: No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted.

Location: OH Const VI § 2 
Title: School funds.

Text: The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.



Does the constitution have a general non-establishment clause?

No.

Yes.

Yes.

No.

COMMENT:
The Ohio Supreme Court has very recently ruled that a school choice program did not violate the education no-funding provision of the Ohio Constitution. The Court has also allowed transportation of students to private schools and textbook loan programs. The Court upheld State construction of a hospital to be run by a sectarian organization, so long as patients of all religions are admitted.

Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 711 N.E.2d 203 (1999).
Overview: Although Ohio's school voucher program did not constitute an unconstitutional establishment of religion, its enactment in 1995 did violate the single-subject rule for legislation under the state constitution.

Protestants & Other Americans, etc. v. Essex, 28 Ohio St. 2d 79, 275 N.E.2d 603 (1971).
Overview: The materials and services provided by the statute did not lend themselves to the religious aura of the recipient sectarian schools. They enhanced only the secular educational process and that process was properly the concern of the State.

Honohan v. Holt, 17 Ohio Misc. 57, 244 N.E.2d 537 (1968).
Overview: Ohio's "Bus Law," which provided for transportation of students at public expense to all schools for which the state board of education prescribed minimum standards, did not violate the First Amendment or two provisions of the Ohio Constitution.

Lazarus v. Board of Comm'rs, 6 Ohio Misc. 254, 217 N.E.2d 883 (1966).
Overview: A taxpayer was not entitled to an injunction to enjoin a county board of commissioners from issuing bonds for allegedly private sectarian hospitals. The bond issue was not invalid because the funds were to be used only for county-owned facilities.

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OKLAHOMA

Location: Okl. Const. Art. I, § 5
Title: Public schools

Text: Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control; and said schools shall always be conducted in English: Provided, that nothing herein shall preclude the teaching of other languages in said public schools.

Location: Okl. Const. Art. II, § 5
Title: Public money or property--Use for sectarian purposes

Text: No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.



Does the constitution have a general non-establishment clause?

No.

Yes.

No.

Yes. Both direct and indirect aid is forbidden.

COMMENT:
The Oklahoma Supreme Court is fairly restrictive in its enforcement of these provisions. They have held that the State is not permitted to give State funds to the YMCA/YWCA due to their religious affiliation. They have also held that transporting students to private schools would be in violation of this section.

Board of Educ. For Indep. Sch. Dist. No. 52 V. Antone, 1963 OK 165, 384 P.2d 911 (1963).
Overview: Because it was a violation of a state constitution to transport parochial school students on public school buses paid for with public funds, a school district's board of education was permanently enjoined from doing so.

Attorney General Opinion 80-196 (1981) - The State Board of Vocational and Technical Education may not contract with private sectarian educational institutions for such institutions to offer a vocational training program as to do so would violate Okla. Const., Article II , Section 5.

Attorney General Opinion 79-060 (1979): "It is, therefore, the opinion of the Attorney General that the State of Oklahoma may not lawfully administer or otherwise provide educational services for private school children under Title IV programs."

Attorney General Opinion 79-132 (1979): "It is, therefore, the opinion of the Attorney General that the State Department of Energy may not expend funds from federal grants received under P.L. 95-619 for the purpose of assisting private parochial schools in the implementation of energy conservation modifications to their facilities."

Attorney General Opinion 70-128 (1970): "In so far as Senate Bill No. 452 attempts to authorize the use of public funds for private educational institutions, the same is violative of the Constitution of Oklahoma."

Gurney et al. v. Ferguson, 190 Okl. 254, 122 P.2d 1002.

Connell v. Gray, 33 Okl. 591, 127 P. 417.

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OREGON

Location: Ore. Const. Art. I, § 5
Title: No money to be appropriated for religion

Text: No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution, nor shall any money be appropriated for the payment of any religeous (sic) services in either house of the Legislative Assembly


Does the constitution have a general non-establishment clause?

No.

Yes.

No.

No.

COMMENT:
The Oregon Constitution does have a general no-funding provision. However, there is little case law to illuminate the Constitution's language. The Oregon Supreme Court did strike down a textbook loan program as violative of this provision.

Dickman v. School Dist., 232 Ore. 238, 366 P.2d 533 (1961).
Overview: A statute allowing a school district to provide textbooks to students of a parochial school free of charge violated the Oregon Constitution, which prohibited the use of public money for the benefit of any religious or theological institution.

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PENNSYLVANIA

Location: Pa. Const. Art. 3, § 15
Title: Public school money not available to sectarian schools

Text: No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school.

Location: Pa. Const. Art. 3, § 29
Title: Appropriations for public assistance

Text: No appropriation shall be made for charitable, educational or benevolent purposes to any person or community nor to any denominational and sectarian institution, corporation or association: Provided, That appropriations may be made for pensions or gratuities for military service and to blind persons twenty-one years of age and upwards and for assistance to mothers having dependent children and to aged persons without adequate means of support and in the form of scholarship grants or loans for higher educational purposes to residents of the Commonwealth enrolled in institutions of higher learning except that no scholarship, grants or loans for higher educational purposes shall be given to persons enrolled in a theological seminary or school of theology.

Art. I, § 3:

"All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship."

Does the constitution have a general non-establishment clause?

No.

Yes.

No.

No.

COMMENT:
The Pennsylvania Supreme Court has held that funds appropriated to an institution for the support, care, and maintenance of delinquent, neglected, or dependent children placed in sectarian or denominational homes did not violate the State Constitution. The Court has also held that transportation of students to private sectarian schools is not in violation of these sections.

Springfield School Dist. v. Department of Education, 483 Pa. 539, 397 A.2d 1154 (1979).
Overview: Appellant school districts' challenge to the constitutionality of a state law requiring transportation of public and nonpublic school students failed because the law provided identical benefits for all students.

Rhoades v. School Dist., 424 Pa. 202, 226 A.2d 53 (1967).
Overview: Court held the Federal or State constitution, the Commonwealth laws, or fundamental justice did not prohibit the objective of statute to place nonpublic schools, in the matter of student transportation, in the same classification as public schools.

School Dist. v. Commonwealth, Dep't of Education, 33 Pa. Commw. 535, 382 A.2d 772 (1978).
Overview: State statute requiring school district to bus its nonpublic school pupils to their schools located outside the school district, did not violate Establishment Clause of either the United States or Pennsylvania Constitutions.

Schade v. Allegheny County Institution District, 126 A.2d 911 (Penn. 1956).

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RHODE ISLAND

Location: R.I. Const. Art. I, § 3  
Title: Freedom of religion

Text: ... we, therefore, declare that no person shall be compelled to frequent or to support any religious worship, place, or ministry whatever

Does the constitution have a general non-establishment clause?

No.

Yes.

No.

No.

COMMENT:
The Rhode Island Supreme Court has ruled that the state constitution should not be read as more restrictive then the federal Constitution on this issue.

Bowerman v. O'Connor, 247 A.2d 82 (R.I. 1968).

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SOUTH CAROLINA

Location: S.C. Const. Ann. Art. I, § 2
Title: Religious freedom

Text: The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...

Location: S.C. Const. Ann. Art. XI, § 4
Title: Direct aid to religious or other private educational institutions prohibited.

Text: No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.


Does the constitution have a general non-establishment clause?
Yes.

No.

Yes

Yes. Only funds that are used for the direct benefit of sectarian, or other private schools, are forbidden.

COMMENT:
The South Carolina Supreme Court has shown some flexibility in its application of these provisions. It has upheld a tuition assistance program that allowed students to attend private colleges which are religiously affiliated. It has also upheld grant funding to religiously affiliated hospitals.

Durham v. McLeod, 259 S.C. 409, 192 S.E.2d 202 (1972).
Overview: South Carolina's State Education Assistance Act was not unconstitutional, although it permitted students to attend religious institutions of higher learning, because the financial aid was in the form of student loans rather than direct aid to institutions.

Hartness v. Patterson, 255 S.C. 503, 179 S.E.2d 907 (1971).
Overview: A taxpayer was entitled to a judgment permanently restraining a state treasurer from expending public funds for an unconstitutional scholarship program that provided scholarships for students at private colleges.

Gilbert v. Bath, 267 S.C. 171, 227 S.E.2d 177 (S.C. 1976).

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SOUTH DAKOTA

Location: S.D. Const. Article VI, § 3  
Title: Freedom of religion -- Support of religion prohibited

Text: No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.

Location: S.D. Const. Article VIII, § 16
Title: Public support of sectarian instruction prohibited
Text: No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state.

Does the constitution have a general non-establishment clause?

No.

Yes.

Yes.

No.

COMMENT:
The South Dakota Supreme Court appears to strictly enforce these constitutional provisions. They have held that textbook loan programs violate the State Constitution. They have also specifically rejected the "child benefit theory." The South Dakota constitution will likely present a significant bar to providing funds to religiously affiliated institutions.

Elbe v. Yankton Indep. Sch. Dist.,372 N.W.2d 113 (1985).
Overview: South Dakota textbook loan statutes were found to be unconstitutional under provisions of South Dakota Constitution. Such provisions were more restrictive than Federal Establishment Clause in that they prohibited aid in any form.

Attorney General Opinion 92-04 (7/9/92) Busing to Church Operated Preschool. "I would have grave doubts about the constitutionality of the proposal, even if the statutory authority existed to permit simultaneous private and public uses of school buses. It is my opinion that the Wolsey School District may not provide the requested bus service."

McDonald v. School Board of Yankton Independent School Dist., 90 SD 599, 246 NW 2d 93 (1976).

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TENNESSEE

Location: Tenn. Const. art. I, § 3  
Title: Freedom of worship

Text: ... that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent;


Does the constitution have a general non-establishment clause?

No.

Yes.

No.

No.

COMMENT:
The Tennessee Supreme Court has stated that the Tennessee constitution is no broader than the First Amendment to the Federal constitution on this issue.

Fort Sanders Presbyterian hosp. v. Health & Educ. Facilities Bd., 224 Tenn. 240, 254, 453 S.W.2d 771, 777 (1970).

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Location: Tex. Const. Art. I § 6

Title: Freedom of worship

Text: ... No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent

Location: Tex. Const. Art. I § 7

Title: Appropriations for sectarian purposes

Text: No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.

Location: Tex. Const. Art. VII § 5

Title: Permanent school fund; available school fund; use of funds

Text: ... nor shall the same, or any part thereof ever be appropriated to or used for the support of any sectarian school...



Does the constitution have a general non-establishment clause?

No.

Yes.

Yes.

No.

COMMENT:
There is no case law on point in Texas. Several Attorney General Opinions' may be illustrative, even if contradictory.

Op.Atty.Gen.1946, No. 0-7128. (The State may not transport students to private schools without running afoul of this provision.)

Op.Atty.Gen. 1940, No. 0-2412. (A state run rehabilitation program may not pay the tuition of participants who chose to attend classes at sectarian institutions.)

Op.Atty.Gen. 1971, No. M-861. (Tuition grants for college students attending private sectarian colleges do not violate the Texas Constitution.)

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UTAH

Location: Utah Const. Art. I, § 4
Title: religious liberty

Text: The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;

Location: Utah Const. Art. I, § 4
Title: religious liberty

Text: No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.

Location: Utah Const. Art. X, § 9
Title: Public aid to church schools forbidden.

Text: Neither the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization.


Does the constitution have a general non-establishment clause?
Yes.

Yes.

Yes.

No.

COMMENT:

The Utah Constitution has strong no-funding language, both general and education specific. However, the Utah Supreme Court has recently softened the bite of these two provisions. In 1973 the Court upheld a grant program which helped to build a religiously affiliated hospital. In 1993 the Court held that funds that indirectly benefited a religious organization are permissible so long as the money or pr