Written by Don Byrd
A Nevada judge has ruled in favor of one of most sweeping school voucher systems in the country, dismissing claims that the program violates a provision in the state’s constitution barring the use of public funds for “sectarian purpose.” While the U.S. Supreme Court has ruled that vouchers do not violate the federal constitution’s wall of separation between church and state, plaintiffs argue that Nevada’s law – as in many states – places tighter church-state restrictions on public funds.
Perhaps the most concerning aspect of the judge’s ruling is his conclusion that the church-state restriction in Nevada’s Constitution (Article XI, Section 10) is no greater than that in the First Amendment. Accordingly, he found the voucher system is lawful, even though it allows public funds to support religious schools.
Here is an excerpt from the opinion:
The plain terms of Section 10 . . . suggest that it does not place greater limitations on the Legislature than the Establishment Clause. Section 10 prohibits the Legislature from using public funds for a “sectarian purpose.” . . . [I]n this Court’s view, the drafters contemplated the Legislature could make expenditures which might impact upon a religion as long as the Legislature’s purpose in making the appropriation was not to build up any religion.
[T]he funds the State deposits in each student’s savings account are reserved for educational purpose, and not for any sectarian purpose. The State has no influence or control over how any parent makes his or her genuine and independent choice to spend his or her ESA funds. Consequently, the State cannot be deemed to be using the funds for a sectarian purpose, as the parents and not the State, direct through their own independent decision the funds to religious education schools.
No aid to religion provisions have often been found to provide stronger church-state protections than the current understanding of the First Amendment. States are surely free to enact stronger protections. The judge here, however, determined that was not the intent of Nevada’s Article XI, Section 10. Last year, the Colorado Supreme Court reached a different conclusion in a similar challenge, although the language of the constitutional provision at issue in that case was not identical to Nevada’s.