UPDATE TALLAHASSEE 10/28/2011 -- A proposed state constitutional
amendment that would repeal Florida's ban on public financial aid to religious organizations should be stripped from the November 2012 ballot, a teacher's union lawyer argued Thursday.
Amendment 7's title, "Religious Freedom," and ballot summary are misleading, Florida Education Association attorney Ron Meyer told Circuit Judge Terry Lewis during a court hearing.
They fail to sufficiently warn voters that the Republican-controlled Legislature's ballot proposal also would turn the existing prohibition upside down by requiring state and local government agencies, instead, to provide funding for churches and other religious entities, Meyer said.
Meyer was also arguing for some public school officials and clergy who are part of the challenge. He focused on the summary's statement that the changes would be "consistent with the U.S. Constitution."
"This affirmatively misleads the voter into believing all we're voting on is a proposal that will make the Florida Constitution consistent with the federal constitution when in fact nothing could be further from the truth," Meyer said.
He said the First Amendment of the U.S. Constitution allows for but does not require funding of religious organizations as the Florida proposal would.
Daniel Nordby, general counsel for Secretary of State Kurt Browning, argued the summary is accurate and not misleading because the "consistent with" phrase is merely shorthand for more cumbersome language in the body of the amendment.
The amendment itself says "Except to the extent required by the First Amendment" of the federal constitution, government agencies cannot deny funding or other support to individuals or entities because of "religious identity or belief."
Meyer's clients also are challenging a new law that requires the attorney general to rewrite defective ballot summaries and titles instead of removing such amendments from the ballot.
Lewis indicated he will rule soon but not before the attorneys submit suggested orders that are not due until Nov. 4.
Repealing the existing no-aid provision would lift a potential roadblock for school voucher programs that typically let students attend parochial and other private schools at taxpayer expense.
The state no longer would have the option of having a voucher program limited to nonreligious schools, Meyer said.
"In other words, if it has any voucher program, it has every voucher program," he said.
The 1st District Court of Appeal found then-Gov. Jeb Bush's voucher program for students from failing public schools violated the no-aid provision, but the Florida Supreme Court did not address that issue. It struck down the program on other grounds.
Religious schools participate in two other voucher programs for disabled and low-income students. Those programs so far have not been challenged.
In defending the amendment's title, Nordby noted Religious Freedom also is the title of the existing constitutional provision.
Meyer contended that provision "meant you cannot be coerced to spend taxpayer money in support of, directly or indirectly, any religious institution." The new version is exactly the opposite, he said.
Nordby said Meyer's argument proved his point.
"Amendment 7 would replace one concept of religious freedom, one that they (the plaintiffs) prefer, with another," Nordby said. "This simply confirms the amendment does indeed address the topic of religious freedom."
The rewritten law violates the constitutional separation of powers between the executive and legislative branches of government, Meyer said. He said there would be no conflict, though, if the Legislature had let the attorney general write the summary to begin with.
Solicitor General Scott Makar represented the state on that issue and called Meyer's argument "nonsensical."
"If the attorney general could build it, the attorney general could repair it," Makar said.
That's not what the law says, Meyer responded. He said the Legislature writes the ballot summaries, so only the Legislature can change them.
TALLAHASSEE 10/27/2011 -- The proposed state constitutional amendment also would prohibit government agencies from denying funding on the basis of religion.
The Circuit Court hearing is being held Wednesday in Tallahassee.
The Florida Education Association as well as some public school leaders and clergy are challenging the proposal. They contend its title --Religious Freedom -- and ballot summary are misleading.
The amendment would lift a potential legal obstacle to school vouchers that let students attend parochial and other private schools at taxpayer expense.
The lawsuit also challenges a new law requiring the attorney general to fix defective summaries and titles. Courts previously have removed such amendments from the ballot.