State constitutions provide a fertile ground for constitutional challenges to school voucher programs. The litigation in Wisconsin and Michigan focused on state constitutional provisions. Undoubtedly, litigation over a school voucher program in Arizona would also focus on our constitutional provisions regarding religious freedom and state funding of both religion and schools. Specifically relevant will be:
· article 2, §12's prohibition on appropriation of public money for religious purposesEach of these constitutional provisions is provided here, with cites to some of the Arizona case law that will be helpful in interpreting them. However, in many cases, Arizona case law is very sparse. Many of the issues likely to arise under the state constitution in school voucher litigation are issues of first impression in Arizona. While Arizona Attorney General opinions [available for free on the web and on Westlaw and Lexis] can provide some guidance, they are not binding. Additional resources not listed on this page are probably best found and in
· article 9 §10's prohibition on appropriations for church, or private or sectarian schools
· article 11, §7's prohibition on sectarian instruction in state educational institutions and on a religious test for admission into any public educational institution
· article 20, paragraph First's guarantee of religious tolerance.
Article 2, §12, Liberty of conscience; appropriations for religious purposes prohibited; religious freedom.
"The liberty of conscience secured by the provisions of this Constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State. No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment. No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony." (emphasis added).Jump to the following resources regarding article 2, §12:
· LAW REVIEWS AND JOURNALSLAW REVIEWS AND JOURNALS Regarding article 2, §12
· FEDERAL ESTABLISHMENT CLAUSE CASES
· ARIZONA CASES
· ARIZONA ATTORNEY GENERAL OPINIONS
Double security of federalism: Protecting individual liberty under the Arizona Constitution. Stanley G. Feldman and David L. Abney, 20 Ariz.St.L.J. 115 (1988). Not electronically available
This article, written by a member of the Arizona Supreme Court, compares various provisions of the Arizona constitution with their analogous federal provisions. One section deals with the freedom of religion as embodied in the first paragraph of Article 20; Article 2 §12; Article 11 §7 and Article 9 §10. It concludes that programs providing "direct and indirect aids to religious educational institutions," which would pass federal constitutional muster under Lemon v. Kurtzman would "face a difficult examination under the broad, specific textual provisions of the Arizona Constitution."ARIZONA CASES Regarding article 2, §12, article 9, §10, and article 11, §7
Community Council v. Jordan, 102 Ariz. 448, 432 P.2d 460 (1967).
The Supreme Court of Arizona upheld partial reimbursement by the state to the Salvation Army for the costs of feeding poor people. The program was upheld even though the Salvation Army had religious components to their feeding program. The Salvation Army did not make religious practice a pre-requisite to receiving aid. This is a big Arizona case dealing with this constitutional provision. Some quotes from the case are extracted below, but it is highly recommended that it be read as part of basic research into the constitutionality of any voucher program in Arizona.Kotterman v. Killian, 972 P.2d 606 (1999) (En Banc)
"'Aid' in the form of partially matching reimbursement for only the direct, actual costs of materials given entirely to third parties of any or no faith or denomination and not to the church itself is not the type of aid prohibited by our constitution. The 'aid' prohibited in the constitution of this state is, in our opinion, assistance in any form whatsoever which would encourage or tend to encourage the preference of one religion over another, or religion per se over no religion."
"The encouragement, by partial reimbursement, of any person or organization to spend more than it will receive is hardly 'aiding' that person or organization on to a healthy financial future and in fact, may tend to preclude any future at all. If the Salvation Army were compelled by the state to enter into this contract contrary to its desires and on the same terms, the contract would unconstitutionally 'aid' other religions not forced to operate at a loss. In the instant case the partial reimbursement of $1.00 for every $2.50 spent for governmental purposes, excluding any administrative expenses incurred therein, is hardly a profitable offer."
"The "child benefit theory" is that it is not the school or sectarian institution that is receiving benefits of appropriation of state funds but the child itself, for purpose of determining whether principle of separation of church and state has been violated, and this doctrine is more accurately denominated the "true beneficiary theory"". The court approved of the true beneficiary theory. But, it also noted that there was no requirement that people go to a Salvation Army chapel services before getting a meal. Were there a requirement that, in order to get the state supported aid, recipients had to meet some religious test, the court would have held the program in violation of the Arizona Constitution because of religious preference."
The Court concluded that "under the facts in this case, where the state is paying less than the actual cost of food, lodging, clothing, transportation, cash assistance, laundry and clearing given to the destitute in emergency situations and paying nothing for administration, there is not an unconstitutional aiding of the conduit through which such things are made available."
Therefore, a voucher program that provides something less than 100% reimbursement of the educational costs, where the schools don't have a religious test for admission, or require performance of religious ritual in order to remain enrolled, and where the child receiving the voucher is the true beneficiary of the aid would probably pass constitutional muster in Arizona.
The tax credit was not an "appropriation" of "public money" to establish religion or aid sectarian schools, for purposes of the Arizona State Constitution. "Even if we were to agree that an appropriation of public funds was implicated here, we would fail to see how the tax credit for donations to a student tuition organization violates this clause. The way in which an STO is limited, the range of choices reserved to taxpayers, parents, and children, the neutrality built into the system, all lead us to conclude that benefits to religious schools are sufficiently attenuated to foreclose a constitutional breach."
Link to the FULL TEXT of Kotterman v. Killian
ARIZONA ATTORNEY GENERAL OPINIONS Regarding article 2 §12
Note: These opinions are available at no charge from the Arizona Attorney General's web site. They are also on Westlaw and Lexis.
Op.Atty.Gen. No. I79-103
If a child voluntarily chooses to attend a private school, the Arizona Constitution does not require that he be allowed to attend the public schools on a part-time basis for the purpose of taking selected courses. However, a public school may voluntarily accept pupils from private and parochial schools for any portion of the day.
Op.Atty.Gen. No. 78-197
It is impermissible to allow students of a parochial school to attend home economics and industrial arts classes in public schools when such attendance is limited to students from a particular parochial school only.
Op.Atty.Gen. No. 78-73
It would be constitutionally impermissible for a school district to include, within its computer prepared class schedule, offerings of religious classes by a church seminary.
Op.Atty.Gen. No. 70-7
A legislative proposal which limits aid to children attending an approved, non-public school, whether private or parochial, which teaches secular subjects to pupils at ages and grades corresponding to public school instruction and complies with standards of course content and qualifications comparable to those of a public school, violates neither U.S.C.A. Const. Amend. 1 nor ARIZ. CONST. art. l2,§12.
A legislative bill which has as its primary purpose the making of an educational grant to the benefit of a parent or guardian of a pupil enrolled and regularly attending an approved non-public common or high school, neither advances nor inhibits religion, but directly benefits the child and parent, and, therefore, violates neither U.S.C.A. Const. Amend. 1 nor ARIZ. CONST. art. l2,§12.
Op.Atty.Gen. No. I79-64
A shared ride program by which parochial school students in northeast Arizona are transported on public school buses has the primary effect of advancing religion and, therefore, is constitutionally impermissible. The schools would determine the busses' schedule, the program would be primarily for the school's benefit, rather than for the children's benefit. Also, the program would have been available only to certain parochial students, rather than in common to all students.Arizona constitution Article 9, §10. Aid of church, private or sectarian school, or public service corporation.
"No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation."Jump to the following resources regarding article 9, §10:
ARIZONA ATTORNEY GENERAL OPINIONS Regarding article 9, §10
Note: These opinions are available at no
charge from the Arizona
Attorney General's web site. They are also on Westlaw and Lexis.
Op.Atty.Gen. No. 78-157
State and local funds may be used to provide special educational services to private school handicapped children.
Op.Atty.Gen. No. I81-049
School districts would be prohibited from paying tuition to a parochial, private, or sectarian school where the tuition payments would plainly advance religion in violation of U.S.Const.. Amend. 1, Ariz. Const. Art. 2, §12 and this section.
Op.Atty.Gen. No. I82-013
Public funded busing cannot be provided to students of one religion or religiously oriented school and refused those of other religions or private schools, whether or not religiously oriented. However, the fact that only one religious group benefits from a busing program will not itself make the program unconstitutional.Arizona Constitution article 11, §7. Sectarian instruction; religious or political test or qualification
Public funded busing of parochial school students does not per se violate this section or Ariz. Const. Art. 2, §12 prohibiting the providing of public aid for religious endeavors.
" No sectarian instruction shall be imparted in any school or State educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the State, as teacher, student, or pupil; but the liberty of conscience hereby secured shall not be so construed as to justify practices or conduct inconsistent with the good order, peace, morality, or safety of the State, or with the rights of others."Jump to the following resources regarding article 11, §7:
ARIZONA ATTORNEY GENERAL OPINIONS Regarding article 11, §7:
Note: These opinions are available at no
charge from the Arizona
Attorney General's web site. They are also on Westlaw and Lexis.
Op.Atty.Gen. No. I79-12
A School district could accept copies of a particular version of the Bible for placement of a single copy in each school district library, and other Bibles then could not be excluded from the school libraries.
Arizona Constitution article 20, paragraph First. Toleration of religious sentiment
"Perfect toleration of religious sentiment shall be secured to every inhabitant of this State, and no inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same."Jump to the following resources regarding article 20, paragraph First:
LAW REVIEWS AND JOURNALS Regarding article 20, paragraph First:
Free exercise of religion--state court devalues landlords' constitutional rights. Note, 20 S.Ill.U.L.J. 181 (Fall 1995).
This case note examines the federal and state constitutional guarantees of freedom of religion, as well as statutes and case law dealing with those freedoms.
Non-profit profiteering, regulating religious cult employment practices. 23 Ariz.L.Rev. 1003 (1981).
This article examines the power of states, under the free exercise clause of the First Amendment to regulate the employment relationship between religious cults and their members.
The struggle over deregulation of religiously affiliated institutions: a classic internal First Amendment conflict. Linda J. Lacy. 26 Ariz.L.Rev. 615 (1984).
This article explains the tension between the free exercise clause and the establishment clause created by legislation that regulates religiously run institutions like day care centers and schools. It argues that exemptions for these religiously run institutions aids religion, thereby violating the establishment clause.
State regulation of private religious schools and state's interest in education. 25 Ariz.L.Rev. 123 (1983).
This note analyzes the case law relating to a claim that state regulation of private religious schools infringes on the right of parents to the free exercise of their religion.
What We Talk About When We Talk About Free Exercise. Garrett Epps, 30 Ariz.St.L.J. 563 (1998).
This article argues that "the free exercise of religion" is a liberty distinct from the Constitution's protections of free speech and freedom from establishment. It first discusses the problem of defining "religion." It then argues that the term "free exercise," viewed in the context of the Constitution, guarantees a liberty distinct from others guaranteed in the document but limited by them. Under this meaning it must protect more than "mere opinion," more than opinion and ritual behavior, and perhaps even more than opinion, ritual behavior, and non ritual behavior with potential consequences in the larger society. The article then argues that the concept of free exercise must be considered within the context in which a specific claim arises. Cases in which individuals assert their own rights against the coercive power of the state are different, in theory and practice, from cases in which religious organizations advocate for their corporate prerogatives.