Florida Religious Freedom Amendment: Pro-Religious Liberty, or Anti-Church/State Separation?
Around the State
The Florida Religious Freedom Amendment – or “Amendment 8” – if passed by a 60 percent supermajority of voters, would revise Article I, Section 3 of the Florida Constitution.
(This amendment, incidentally, was formerly "Amendment 7." It was removed from the ballot by the Second Judicial Circuit Court of Florida in 2011, after a judge ruled that the summary appearing on the ballot contained misleading language. Attorney General Pam Bondi redrafted the summary, and resubmitted it as Amendment 8. As a result, there is no Amendment 7 on the November ballot.)
Article 1, Section 3 at present reads as follows:
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 directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution. (emphasis added)
Amendment 8 would replace the italicized words with the following:
"No individual or entity may be discriminated against or barred from receiving funding on the basis of religious identity or belief."
Supporters for the change include Florida Family Action, the Florida Catholic Conference of Bishops, the Florida Chamber of Commerce, and a coalition called Citizens for Religious Freedom and Non-Discrimination. Opponents include the American Civil Liberties Union of Florida, the Anti-Defamation League, the Florida Education Association, and the Democratic Progressive Caucus of Florida.
The two sides don’t seem to agree on any issue surrounding Amendment 8: its necessity, its purpose, its practical effects on state law, or even the historical origins of the constitutional provision it seeks to overturn.
The portion of the state Constitution italicized above is Florida’s version of the so-called “Blaine Amendment,” named after the 19th century Republican congressman James G. Blaine, who unsuccessfully promoted an amendment to the U.S. Constitution which would have prohibited states from directing taxpayer dollars to any institutions “under the control of any religious sect.” Although Blaine failed to see his proposed amendment adopted, 37 states eventually enacted their own version of it, Florida among them.
Critics of state Blaine Amendments claim the measures were inspired by the anti-Catholic nativism that was rampant in the 19th century; they say words like “sect” or “sectarian” are code-words for “Catholic” -- i.e., Catholics were “sectarians,” and public dollars were better spent on public schools where, from the founding of the nation until well into the 1960s, pupils prayed Protestant prayers and read from Protestant Bibles. One legal scholar has recently argued that Florida’s Blaine Amendment was also inspired by animus toward African-Americans; at the time the provision was incorporated into the state Constitution, Catholic schools were among the few that catered to black children.
On the other hand, the ACLU recently published a report which argues that these claims amount to “myths” and “fabrications of history.”
“There are several reasons we need Amendment 8,” says Jim Frankowiak, campaign manager for Say Yes on 8, in an interview with Sunshine State News. “In the first place, passage of Amendment 8 will ensure continued delivery of some very important social services by faith-based or religious organizations. This will preserve the public-private partnerships between government and social-service organizations that have existed for years.”
The Blaine Amendment has been interpreted by the Florida courts as allowing the state to contract with religiously-affiliated charities that provide secular services, so long as the government-funded program does not “promote the religion of the provider, is [not] significantly sectarian in nature, [does not] involve religious indoctrination, [does not] require participation in religious ritual, or encourage the preference of one religion over another,” as the Florida 1st District Court of Appeal put it in its 2010 ruling in Council for Secular Humanism v. McNeil.
“We’re talking about hundreds of programs that serve thousands of Floridians,” he says. “They run the gamut from religious hospitals and clinics that provide Medicaid services, to elderly care, indigent care, substance abuse programs, hospice care, housing assistance for the disabled or homeless, soup kitchens, food provision for the poor, disaster relief services, prison outreach, and certain college and K-12 scholarship programs.
“These are not luxuries. These are basic needs and many of these people – the majority – are the neediest. We want to prevent discrimination against church-affiliated and religious institutions, which provide these services, simply because they’re faith-based or religious.”
But Maggie Garrett, legislative director for Americans United for the Separation of Church and State, insists Amendment 8 is a solution looking for a problem.
“Amendment 8 is dangerous, and bad for religious freedom in Florida,” she tells Sunshine State News. “What it is really doing is cutting down all the church-state separation safeguards that are currently in place when the state government partners with religious entities.
“I do think that the proponents of the amendment are being misleading in how they’re promoting this. You hear a lot of stories from them how this needs to be passed in order for religious organizations to partner at all with the government in Florida, and that’s just simply not true. The court cases say that’s not true. If you look around Florida, there are tons of partnerships with religious entities; it’s just that they have all the church-state protections embedded in those partnerships, which are regulated by the Florida Constitution.”
Garrett says those protections include making sure funds go to support the secular charitable work performed by religious institutions and not to houses of worship, making sure taxpayer-funded charities do not discriminate in their employment practices, and ensuring that religious charities do not proselytize while they deliver their services.
Vote No on 8, for which Americans United is providing educational outreach, warns Amendment 8 could pave the way for state vouchers for children to attend religious-affiliated schools; such vouchers were declared unconstitutional by the Florida Supreme Court in the 2006 case Bush v. Holmes.
But supporters for Amendment 8 point out that the court in Holmes did not base its ruling on Florida’s Blaine Amendment, but on Article IX, Section 1 of the state Constitution, which concerns public education. Amendment 8 leaves Article IX untouched, and so wouldn’t affect the precedent set by Holmes.
“I’ve talked to people all over the state,” says Frankowiak. “And I don’t think there’s anybody who doesn’t have a family member or a friend who has either been served or is being served by programs of the type that could be affected negatively by nonpassage of Amendment 8. It’s not about vouchers; it never has been."
For her part, Garrett warns that religious institutions might have the most to lose if the amendment passes and churches entangle themselves too deeply with the state.
“Government money always comes with government strings,” she says. “And that’s not good for religions, to have the government poking into the church’s businesses. The provisions currently in place in the Florida Constitution protect churches’ autonomy and protect their own religious freedom.”
Reach Eric Giunta at email@example.com or at 954-235-9116.