Former Fla. Supreme Court Justice: Time to nix Blaine Amendment

Travis Pillow

Florida’s prohibition on public aid to religious institutions grew out of anti-Catholic bigotry. It’s also outdated, a former state Supreme Court justice told a panel working revisions to the state’s governing document. And it likely violates the U.S. Constitution.

Former Chief Justice Raoul Cantero, now a lawyer in private practice, urged the education committee of the Constitution Revision Commission to support a proposal that would erase Florida’s Blaine Amendment.

The “no-aid” provision has come up in lawsuits against voucher programs that fund scholarships to religious schools. It’s been used to challenge groups providing substance abuse counseling in state prisons. But a U.S. Supreme Court decision last year suggested federal justices think blanket prohibitions on public funding of religious institutions are unconstitutional.One member of the committee, Tom Grady, asked if the proposed amendment was simply a “cleanup” that would bring the state constitution in line with federal jurisprudence. Citing the Trinity Lutheran v. Comer decision, Cantero said it was. Federal courts would likely block efforts to exclude religious organizations from public programs.

For that reason, Patricia Levesque questioned whether the change was necessary. She supported a similar effort ten years ago when she sat on the Taxation and Budget Reform Commission. She said she still believes striking the Blaine Amendment is the “right moral thing to do.” But she noted any proposal the commission approved would need to win the support of 60 percent of Florida voters. A 2012 constitutional referendum fell far short of that.

“Is there a need to do the cleanup if it appears so clearly that the U.S. Supreme Court is basically ruling that these things are unconstitutional?” Levesque asked.

Cantero responded, “there is always a danger” that state agencies could cite the no-aid provision to block religious groups. The federal high court would only address those issues “on a case-by-case basis,” he said. “It’s much more efficient, I think, just to remove that from the constitution.”

In a preview of the political hurdles the proposal may face, a raft of civil liberties and public education groups spoke against it. Bobby Pearce, the Wakulla County superintendent of schools, asked the commission rhetorically: “Would this provision herald the privatization of public education?”

The committee delayed an actual vote on the proposal, as well as several others dealing with school choice, until its next meeting.

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