Proposed amendments in Missouri raise ire of national civil rights group

Monday, January 25, 1999

Two resolutions to amend the Missouri Constitution have prompted a national civil rights group to claim that the separation of church and state is under attack in the state.

Early in January, Steve Ehlmann, a Republican state senator, introduced a resolution calling on the Legislature to pass an amendment to repeal a section of the Constitution barring the use of state funds for religion.

The Missouri Constitution was ratified in 1875, at a time when states were struggling with religious liberty of their citizens. Missouri, in fact, had been successful in forcing Mormon settlers from the state 36 years earlier. Between 1833 and 1839, members of the Church of Jesus Christ of Latter-day Saints were driven from several counties. The Mormons had been forced to flee other states before trying to settle in Missouri.

Nativism also was especially strong in the mid to late 19th century, and Catholic immigrants bore the brunt of such bigotry. Many states created constitutional language barring any tax dollars from being used by religious institutions as a way to limit the influence of churches on the states.

The 1875 section of the Missouri Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

Ehlmann wants to dump this original language for the following: “Neither the state, nor any of its political subdivisions, shall make any law respecting an establishment of religion or prohibiting the free exercise thereof.”

The amendment is pending in the state Civil and Criminal Jurisprudence Committee, where a hearing on it was conducted last week but no action was taken.

According to a group that advocates the separation of church and state, Ehlmann's proposed language — which mirrors the First Amendment's religious-liberty clauses — would make it easier for the state or municipalities to create voucher programs that provide tuition for students at private religious schools. Americans United for Separation of Church and State, a nonprofit group based in Washington, D.C., has fought voucher programs in many states. Some religious-liberty experts claim such programs eventually will be found by the U.S. Supreme Court to be constitutional.

Americans United has opposed the proposed Missouri amendment, arguing it would undercut the state's commitment to religious liberty by permitting government funding of religion.

“This amendment is ill-advised for several reasons,” wrote Barry Lynn, the group's executive director, in a letter sent to the state committee last week.

First Lynn noted that state lawmakers currently are free to provide added protections for fundamental rights, but are not permitted to curtail them. If the amendment were adopted, Lynn said, “it would put Missouri out of step with the majority of states around the country” and “would represent a dramatic step back from Missouri's commitment to full religious liberty through separation of church and state.”

Additionally, Lynn argued that the amendment would open the door for state-funded aid to religious institutions.

Calls made to Jeff Davis, Ehlmann's general counsel, regarding American United's concerns about the amendment were not returned.

The Becket Fund, a religious-liberty nonprofit group, also based in D.C., last year started challenging provisions in many state constitutions, arguing that the constitutions bar voucher programs from being implemented. Currently the group is involved in efforts to invalidate an amendment in the Massachusetts Constitution. The Becket Fund also claims that many of the states' religious-liberty provisions are based on anti-religious bigotry.

Steven Green, legal director for Americans United, said that not all state constitutions barring all government aid to religion are founded on bigotry.

“It is an oversimplification of the complexities and factors that surrounded the adoption of such amendments to claim they were all motivated by an anti-Catholic animus,” Green said. “Moreover, many of the amendments pre-dated the influx of Catholic schools or Mormonism.”

Green said the newly proposed language has more to do with a recent federal court decision that forced the removal of a religious symbol on public property in Florissant, Mo., and less to do with historical hatred of non-Protestants.

“Quite frankly, the Missouri Constitution's current provision is an important one that ensures that public aid will not be spent on religious education,” Green said.

The second proposed amendment that has sparked concern for Americans United focuses on parental rights.

Republican Sen. Peter Kinder introduced a resolution calling for an amendment to bolster parents' control over their children's education.

“The right of parents to direct the upbringing and education of their children is a fundamental right,” states the resolution. “The general assembly shall have the power to enforce, by appropriate legislation, the provisions of this section. The state maintains a compelling interest in investigating, prosecuting and punishing child abuse and neglect as defined by statute.”

The parental-rights resolution is also before the state's Civil and Criminal Jurisprudence Committee.

Again Lynn sent a letter to the committee arguing that the parental-rights amendment would also subvert the separation of church and state.

“This proposed constitutional amendment could result in violations of separation of church and state, and would open the flood gates to legal challenges of any established or future policy, including school funding, school curriculum and juvenile law enforcement,” Lynn wrote.

“The breadth of this legislation is so great, parents could argue that they have a 'right' to taxpayer-funded religious education for their children. This could lead to court-ordered vouchers or other grants of public tax dollars. The legislation could also lead to alterations in public school curriculum. Any parent of a public school student would have a right to challenge almost every aspect of a school's curriculum.”