Ari Armstrong, Constitutional Law, Education, Exclusives, Uncategorized

Armstrong: Colorado Constitution bars forced religious funding

Should the state of Colorado fund private preschools, including religious ones? I’ve spilled a fair amount of ink, or lighted up a fair number of pixels, discussing that issue. Here, again, is the central conundrum: The state violates people’s rights by forcing them to finance religious preschools, but it also violates people’s rights by forcing them to fund solely nonreligious preschools, when they wish to use a religious one.

The obvious solution is for the state not to fund preschools at all. Here I want to tackle the same problem from a different angle, the text of the Colorado Constitution.

Astonishingly, the legislators who swear to support the Colorado Constitution routinely pretend that Article V, Section 34 does not exist. Here is the language in question:

“Section 34. Appropriations to private institutions forbidden. No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.”

This section flatly bars all forms of corporate welfare, which the legislature routinely offers anyway. This section also pretty straightforwardly prohibits state spending on private preschools, religious or otherwise. The term “educational purposes” seems clearly to apply. The last bit flatly prohibits appropriations to religious preschools. Yes, I realize that courts have held that this provision does not mean what it plainly says.

If we turn to Colorado’s Bill of Rights, Article II, we find in Section 4, on religious freedom, this line: “No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent.” You have to torture that text pretty aggressively to get it to say that the state may force people to pay tax dollars to religious preschools.

Finally, in Article IX, the part about education, Section 7, we find:

“Section 7. Aid to private schools, churches, sectarian purpose, forbidden. Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.”

That language could not be clearer. In three different sections, then, the Colorado Constitution plainly bans state funding for religious preschools. And yet we have state funding for religious preschools.

Will the real Constitutionalists please stand up?

The ban on religious discrimination

I do think that the state and federal constitutions bar state spending on private schools (preschool or otherwise) unless it includes religious schools.

We can again look to Article II, Section 4 to find, “The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed.” If the state subsidizes private nonreligious preschools but not private religious preschools, isn’t that “discrimination” of the sort here forbidden?

Various people also argue that the First Amendment of the U.S. Constitution, as well as the Fourteenth Amendment’s guarantee of “equal protection of the laws,” forbid governments from subsidizing private organizations while excluding religious ones.

But, if we take constitutionalism seriously, we cannot say that one good violation of the state Constitution deserves another. Rather, the proper conclusion is that if the state may not fund religious preschools, then it may not fund any preschools. And this point extends to all private schools, not just preschools.

It is, of course, possible to amend the state Constitution to say that the state can finance religious institutions after all. I think that would be a huge mistake. Any state funding of any religious purpose or organization should count as an improper “establishment of religion” under the First Amendment. Many conservatives, though, want to read that bit of the Constitution as loosely as possible. Constitutional questions aside, government plainly violates people’s rights by forcing them to help finance religious institutions.

One possibility is to say that vouchers given to parents rather than to schools, even if used for private religious schools, do not count as state spending on private schools. Compare: If the state gives a cash subsidy to someone, that person might then give a portion of the money to a local church. Here again I would mention the idea that a no-strings cash transfer to a family probably would do the family more good than a use-specific voucher.

What seems clear, legally and morally, is that government ought not directly fund private schools.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.


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