Spectacular victory – Colorado vouchers ruled unconstitutional

If they want to support their religion, they must do so with their money, not taxpayer money.

By Katherine Paige
Postgraduate Legal Fellow
Freedom From Religion Foundation

Amid a host of neovoucher schemes proposed and instituted across the country comes a big win for the secular movement. The Colorado Supreme Court rejected the Douglas County School District’s school voucher program yesterday. The Court held that the program, which provides for the use of taxpayer dollars to fund private school tuition, violates Article IX, § 7 of the Colorado Constitution because it allows for the public funding of religious education.

The case is an excellent victory for the citizens of Colorado, as well as our good friends at the American Civil Liberties Union (ACLU), the ACLU of Colorado, and Americans United for Separation of Church and State, all of which represented the plaintiff taxpayers.

Article IX, § 7, also referred to as the state’s Blaine Amendment, reads:

“Neither the general assembly, nor any . . . school district . . . shall ever make any appropriation, or pay from any public fund or moneys 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 whatsoever . . .”

Sounds pretty straightforward, right?

Not to county officials, who are already making noise about appealing the decision to the U.S. Supreme Court. Douglas County Board of Education president Kevin Larsen told The Denver Post that he has “always believed that the ultimate legality of [the District’s] Choice Scholarship Program would be decided by the federal courts under the United States Constitution.”



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Huh? Mr. Larsen, this program violates the state constitution.

The U.S. Supreme Court may only hear appeals from state supreme courts if the case involves a question of federal law under the U.S. Constitution. The Colorado Supreme Court is the ultimate tribunal for determining questions of state constitutionality. Because the case at issue was decided under state law (Article IX, § 7), the Colorado Supreme Court is the final arbiter in determining the legality of Douglas County’s school voucher program under the state constitution.

Apparently, rather than file a dubious appeal of the Colorado Supreme Court decision, Douglas County seeks to challenge the state constitution’s Blaine Amendment itself. Hackneyed though the argument is, it is not unpredictable. Voucher supporters argue that by denying public funds to religious schools, the state discriminates against religious parents and children.

This is just another tired iteration of this country’s Christian persecution complex.

At least 36 states have Blaine Amendments that forbid direct government aid to religiously affiliated educational institutions. For years, voucher proponents have pushed for their repeal, attempting to weaken state constitutions, and allow for the allocation of state aid to religious schools. So far these attempts have been unsuccessful, particularly in Colorado, where voters rejected an opportunity for school vouchers in 1992 by more than a 22-point margin. In fact, Colorado voters have made quite clear that they don’t support public funding of religious education. In 1998, they also rejected tuition tax credits by more than 20 points.

Thus far the U.S. Supreme Court has never taken up a direct challenge to a Blaine Amendment, though it did come close in Locke v. Davey (2004). There, the Court upheld a Washington State law that prohibited public funding for devotional theology majors. Locke acknowledged that state constitutions might require stricter church-state separation than that required by the Establishment Clause.

The Colorado Supreme Court relied on this principle, acknowledging that Article IX, § 7 “is far more restrictive than the Establishment Clause regarding governmental aid to religion, and the Supreme Court has recognized that state constitutions may draw a tighter net around the conferral of such aid.”

Colorado’s constitution does not discriminate against those Douglas County parents and children who wish to attend religious school. It merely upholds the rights of taxpayers not to fund an individual’s private religious delusion. If they want to support their religion, they must do so with their money, not taxpayer money.

The North Carolina Supreme Court is currently considering the legality of a similar voucher program struck down last year by a state superior court judge. However, despite these somewhat promising recent legal rulings, neovoucher schemes such as tax credit scholarships and education savings accounts are taking hold across the country. Often enacted to avoid constitutional restrictions against vouchers, these neovoucher schemes similarly aim to divert public money to private religious schools, effectively dismantling the public education system as we know it. Nevada recently passed the most expansive education savings account program to date, allowing any student, regardless of income, to use state money for private school tuition.

As long as churches continue to push neovoucher schemes, citizens will be required to defend their state constitutions, their tax money, and the wall of separation of church and state on which this country was founded. Today is a spectacular victory for champions of the First Amendment, but we must remind ourselves that this battle is far from over.

For more information about vouchers and neovoucher schemes, check out FFRF’s Voucher FAQ.

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