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I find this Florida case befuddling in an important
respect -- Why is the Free Exercise/Locke v. Davey question even at
issue on appeal?
1. The Florida Legislature enacted a voucher plan
that applies to religious and non-religious schools alike.
2. The Circuit Court found that,
because the program included religious schools, it facially violated
the State Constitution, and thus the court declared the statute
unconstitutional, and ruled that the Defendants "are
hereby enjoined and prohibited from taking any action to implement the
Opportunity Scholarship Program for the 2002-2003 school year and
thereafter. Thus, under the trial court's order, the voucher
program is inoperative, and students cannot use the vouchers at
any private school, whether or not it is
religious. In other words, the court in effect ruled that
the application of the statute at religious schools and the application at
secular schools are not severable from one another.
3. The nonseverability
ruling, frankly, surprised me, because I find it hard to imagine the
legislature would not want students to be able to use vouchers at
least in secular schools, even if they are constitutionally
prohibited from using them in religious schools. But what do I know about
Florida severability doctrine? (Answer:
nuthin'.)
4. The Governor and AG did not appeal
the severability ruling. (See footnote 4 of yesterday's
ruling.) That is to say, they did not argue that at the very
least the program should be sustained as to secular schools, regardless of what
the constitution requires as to religious schools. (Query whether this
doesn't reveal a great deal about whether their objective is genuinely to ensure
that needy students have better educational options.)
5. Let's say, for
argument's sake, that the District Court of Appeal was correct in holding
yesterday that the Florida Constitution forbids voucherized aid to religious
schools. Why isn't that the end of the matter? The result is
that religious and nonreligious private schools are treated identically:
vouchers can be used at neither. Thus, no Lukumi issue;
no McDaniel v. Paty issue; no Torcaso issue; no Locke
v. Davey issue; no Free Exercise issue at all. If the
legislature subsequently enacted a secular-school-only voucher law,
then the Free Exercise issue would arise. But why is it in the
case now?
According to the dissent in
yesterday's decision, there's a Free
Exercise question because although the "no vouchers" regime is facially neutral,
it "'targets religious conduct for distinctive
treatment.'" (quoting Lukumi, 508 U.S. at 534). The
dissent goes on to say that "[t]he record in the instant case makes it clear
that preventing the use of opportunity scholarships at religious institutions was the object of the trial court’s
order. Therefore, the trial court’s order was not
neutral towards religion, and it must be invalidated unless it was
justified by a compelling governmental interest and narrowly tailored to
advance that interest." The dissent also asks and answers the following
question: "Could the state cure a discriminatory act
of not hiring or terminating an individual because of race by simply eliminating
the employment position? Obviously
not." Obviously? But cf. Palmer v.
Thompson.
Is this right? Is the trial court's order
prohibiting all vouchers, regardless of whether the school is secular or
religious, analogous to a law prohibiting all animal sacrifice, "whether it is
secular or religious"?
----- Original Message -----
From: "Michael MASINTER" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>
Sent: Monday, August 16, 2004 11:07 AM
Subject: Fl Voucher Program
Unconstitutional > Constitution's no aid provision in Article One, Section Three, which > provides: "No revenue of the state . . . shall ever be taken from the > public treasury directly or indirectly in aid . . . of any sectarian > institution." Rejecting arguments that the state constitution imposed no > greater restriction on state spending than did the establishment clause, > the court relied on Locke v. Davey to reject the argument that, so > construed, it would violate the Free Exercise clause. The court certified > the question to the Florida Supreme Court. > > http://www.1dca.org/opinion/opinions2004/8-16-04/02-3160.pdf > > Michael R. Masinter Visiting Professor of Law > On Leave From University of Miami Law School > Nova Southeastern University (305) 284-3870 (voice) > Shepard Broad Law Center (305) 284-6619 (fax) > [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel > > > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. > |
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