Courtroom interior_newWritten by Don Byrd

The Colorado Supreme Court yesterday invalidated Douglas County’s Choice Scholarship Program, which provides financial aid for students to attend private schools, including predominantly religious and parochial schools.

The Baptist Joint Committee filed a brief with the Court arguing that the scheme violates article IX, section 7 of the state constitution. That provision prohibits “any public fund of moneys whatever” from helping “to support or sustain any school . . . controlled by any church or sectarian denomination…” A plurality of the court agreed.

In its ruling, the court rejected the argument of voucher proponents that the program clears this hurdle by providing funds to students in the form of financial aid and not directly to religious schools. Here is an excerpt from the opinion:

Although this provision uses the term “sectarian” rather than “religious,” the two words are synonymous. That section 7 equates the term “sectarian” with the word “church” only reinforces this point. Therefore, this stark constitutional provision makes one thing clear: A school district may not aid religious schools.

Yet aiding religious schools is exactly what the CSP does. The CSP essentially functions as a recruitment program, teaming with various religious schools and encouraging students to attend those schools via the inducement of scholarships. To be sure, the CSP does not explicitly funnel money directly to religious schools, instead providing financial aid to students. But section 7’s prohibitions are not limited to direct funding. Rather, section 7 bars school districts from “paying from any public fund of moneys whatever, anything in aid of any” religious institution , and from “helping support or sustain any school . . . controlled by any church or sectarian denomination whatsoever.” Given that private religious schools rely on students’ attendance (and their corresponding tuition payments) for their ongoing survival, the CSP’s facilitation of such attendance necessarily constitutes aid to “support or sustain” those schools. Section 7 precludes school districts from providing such aid.”

While the U.S. Supreme Court has ruled school voucher programs constitutional, many state constitutions include provisions that provide additional protection against government’s financial support of religion. The Baptist Joint Committee has long opposed school vouchers on the ground that they improperly use taxpayer funds for religious purpose.

Religious liberty for all works best when religion and religious institutions thrive free of the aid of government. That separation helps to maintain government neutrality toward religion and keeps religious institutions free of the strings that inevitably attach to government funding. It is good for the church and the state.