Working Paper on Florida Blaine Amendment, 8

Exposing the Myth of Anti-Catholic Bias The Fabrication of History to Repeal the Florida Constitution’s No-Aid Provision A Report by the ACLU Program on Freedom of Religion and Belief and the ACLU of Florida July 2011 Introduction p.2 I. The Text and History of the Provision as Well as the Religious and Political Dynamics at the Time of Its Adoption Disprove Claims of Anti-Catholic Bias. A. The Text of the No-Aid Provision Does Not Discriminate Against Catholics. p.4 B. The Legislative History of the No-Aid Provision and State Constitution Does Not Reveal Any Intent to Target Catholics. p.6 C. The Religious and Political Climate in Florida at the Time of the Adoption of the No-Aid Provision Show a Broad Tolerance of Catholicism. p.8 II. There Is No Evidence That The Florida No-Aid Provision Was Inspired By Or Modeled After The Defeated Federal Blaine Amendment. A. There Is No Evidence That the Florida No-Aid Provision Was Based on the Blaine Amendment. p.11 B. Proponents of Vouchers and the Repeal of No-Aid Provisions Have Distorted the History of the So-Called “Blaine Amendment.” p.15 C. Florida’s No-Aid Provision Has Been Re-adopted Several Times, Severing Any Possible Link to Anti-Catholic Bias. p.18 Conclusion p.19 Exposing the Myth of Anti-Catholic Bias Introduction Article I, section 3 of the Florida Constitution has long protected the religious-freedom rights of all Floridians by barring taxpayer-funded aid to religious institutions. Article I, section 3 states: There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury Florida’s no-aid provision was directly or indirectly in aid of any church, adopted in 1885 and has been re- sect, or religious denomination or in aid of ratified three times since then – in any sectarian institution. 1968, 1977, an 1997 – without any The last sentence of this clause, often referred to as material changes or charges of the “no-aid provision” has been in effect without anti-Catholic bias. material change for more than 125 years.1 First adopted as part of the 1885 constitution, the no-aid provision has been re-ratified three times since in connection with the constitution revision commissions held in 1968, 1977, and 1997.2 Despite its bona fide historical roots, however, the no-aid provision has come under attack in recent years. Most recently, the Florida legislature approved language for a proposed constitutional amendment that would repeal the no-aid provision and replace it with language that would allow – 1 The current constitution was adopted in 1968, with revisions occurring in 1977 and 1997 and at other times via ballot initiatives proposed by the Legislature, the people of Florida, and the Taxation and Budget Reform Commission. The current version of Article I, Section 3 is slightly revised from the 1885 no-aid provision, which stated: “No preference shall be given by law to any church, sect or mode of worship, and no money 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.” FLA. CONST. of 1885, Declaration of Rights, § 6, available at http://www.law.fsu.edu/crc/conhist/1885con.html (last visited June 30, 2011). Because the language in the 1885 and 1968 provisions is nearly identical – the only salient difference being the 1968 revision that extended the prohibition on government funding to municipalities – “Article I, Section 3” and “no-aid provision” will be used generically to describe both, except where specified in the text. 2 While constitutional revisions in the 19th century occurred almost entirely through constitutional conventions, revisions in the 20th century occurred primarily through constitution revision commissions. Revision commissions resemble constitutional conventions, with two major differences: First delegates to revision commissions are appointed, rather than elected; second revision commissions propose specific amendments, which can each be voted up or down, rather than proposing a new constitution that must be accepted or rejected in its entirety by the voters. The first revision commission produced the 1968 constitution. Though the no-aid provision underwent only minor changes, the 1968 constitution, on the whole, represented a major departure –in both substance and process – from the constitution of 1885. It also established mandatory constitution revision commissions to be held automatically every twenty years. FLA. CONST. of 1968, art. XI, § 2 (establishing that a review commission would meet ten years after the 1968 constitution, and thereafter every twenty years, which is the pattern that has been followed).. In accordance with this mandate, revision commissions have been convened in 1977 and, most recently, in 1997. 2 Exposing the Myth of Anti-Catholic Bias and even promote – taxpayer funding of religious institutions.3 The proposed repeal and amended language will be submitted to Florida voters in the November 2012 general election. While supporters have couched the proposed Supporters of the repeal repeal in “religious freedom” terms,4 for many have raised a red herring, proponents, the real goal is to promote a wide variety of government-funded religious entities and claiming that Florida’s no- activities, including taxpayer-financed educational aid provision arose out of vouchers that would require Floridians to subsidize private religious schools. Indeed, Sen. Thad Altman, anti-Catholic bigotry and who sponsored the repeal legislation in the Senate, continues to promote such told the Tampa Tribune, “Education choice, higher prejudice today. This education scholarships . are just a few of the examples of the services the religious organizations contention is, simply put, can provide.”5 These ends, however, would wholly false. undermine the no-aid provision’s longstanding religious liberty protections.6 Aware that, across the country, voters have consistently rejected plans to use taxpayer funds to subsidize private religious education,7 supporters of the repeal have instead raised a red herring, claiming that Florida’s no-aid provision arose out of anti-Catholic bigotry and continues to promote such prejudice today. This contention is, simply put, false. As Part I of this report illustrates, the text andlegislative history of the Florida Constitution, judicial interpretations of the no-aid provision, and Florida’s broader history all belie this claim. None of these reflects any anti- Catholic bias associated with Florida’s no-aid provision. Lacking any historical or textual evidence of anti-Catholic bigotry connected to the no-aid provision, voucher and repeal proponents contend that the clause was nevertheless borne out of anti- Catholic bias that sought to “effectively shut down Catholic schools.”8 Specifically, they contend that the provision was inspired by and associated with the so-called “Blaine Amendment,” a failed effort by 3 The amended section would provide: “There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace, or safety. Except to the extent required by the First Amendment to the United States Constitution, neither the government nor any agent of the government may deny to any other individual or entity the benefits of any program, funding, or other support on the basis of religious identity or belief.” H.J. Res. 1471, Sess. 2011 (Fla.). 4 Supporters have called the legislation proposing this amendment (CS/HJR 1471) the “Religious Freedom Act.” 5 Catherine Whittenburg, Religious Freedom Act is Gaining Ground, TAMPA TRIBUNE (Fla.), Apr. 14, 2010, at 4. Thomas Wenski, Archbishop of the Catholic Archdiocese of Miami, also highlighted the hope of many repeal proponents that “schools educating children from failing schools with vouchers . [would] be allowed to serve.” Thomas Wenski, Op-Ed, Citizens Should Support Religious Freedom Act, SUN-SENTINEL (Fla.), June 21, 2011, at 12A. 6 In 2006, the Florida Supreme Court voided Florida’s Opportunity Scholarship Program, which provided vouchers to the parents of children attending failing public schools. Bush v. Holmes, 919 So 2d 392 (Fla. 2006), aff’g 886 So. 2d 340 (Fla. Dist. Ct. App. 2004). The vouchers could be used at any accredited Florida private school, including religious schools. While the Florida First District Court of Appeal held that the voucher program violated the no-aid provision, the Florida Supreme Court relied on Article IX, Section 1 (the “uniformity in education” clause). The Supreme Court did not rule on whether the voucher program also violated Article I, Section 3. For a thorough discussion of the Opportunity Scholarship Program, see Jamie Dycus, Lost Opportunity: Bush v. Holmes and the Application of State Constitutional Uniformity Clauses to School Voucher Schemes, 35 J.L. & EDUC. 415, 419-21 (2006). 7 In the last 41 years, voters across the country have rejected private school vouchers every time they have been proposed, including proposed voucher programs in California, Colorado, the District of Columbia, Maryland, Michigan, Nebraska, Oregon, Utah, and Washington. 8 See, e.g., Wenski, supra note 5. 3 Exposing the Myth of Anti-Catholic Bias one congressional representative more than 135 years ago to amend the U.S. Constitution to prohibit taxpayer support for religious practices in the public or private schools.9 As Part II of this report explains, however, there is simply no evidence showing that the Florida no-aid provision was inspired by or modeled after the federal Blaine Amendment. Moreover, these claims grossly mischaracterize the alleged anti-Catholic roots of the Blaine Amendment.

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