Last week, Governor Sonny Perdue reintroduced his “Faith and Family Services Amendment” (SR 49), designed to bring the religious liberty provisions of the Georgia Constitution into line with those of the federal First Amendment.  The Amendment has 36 sponsors (with 38 votes needed for Senate approval). 

     The proposal passed the Georgia Senate in 2004, but died in the House, then controlled by the Democrats.  If it receives a two-thirds majority in both chambers, it would be placed on the general election ballot in 2006 for an up-or-down vote.  It would add twelve words to the Georgia Constitution, amending a provision that absolutely prohibits any direct or indirect government financial assistance to “any church, sect, cult, or religious denomination, or any sectarian institution,” by adding the proviso “except as permitted or required by the United States Constitution, as amended.”

     The current constitutional provision, whose roots go back to the 19th century, resembles the infamous “Blaine Amendments,” named after House Speaker James G. Blaine and adopted by many states in large part as a bigoted response to rapid growth in the Catholic immigrant population.  As it currently stands, the Georgia constitution prohibits the sort of contract between state government and a faith-based organization (like the Salvation Army) that at the federal level is regarded as a perfectly normal means of providing secular social services to needy populations. 

     It also prohibits indirect payments, like vouchers, that enable and empower individuals to make their own decisions about how they can best be served.  A single mother who needs day-care in order to work could not, under the Georgia constitution, take a government voucher to a convenient church day-care center; she would have to look long and hard for a secular provider.

     Finally, any fair reading of the current constitutional provision would deny Georgia lottery-funded pre-K vouchers and HOPE scholarships to those who wished to redeem them at church-related preschools and colleges, which are, after all, “sectarian institutions.”  The Georgia Tuition Equalization Grant, drawn from general funds to support state residents attending private Georgia colleges and universities would also largely fall by the wayside, since almost every private college and university in the state is religiously-affiliated.

     We haven’t faced up to this reality simply because no one has sought to challenge these widely popular state programs.  But they would survive a legal challenge only if a judge essentially refused to adopt the plain meaning of the constitution’s words, which we ought rightly to regard as an example of irresponsible judicial high-handedness.

     Opponents of the Governor’s proposal fear that it would be used to pave the way for elementary and secondary school vouchers.  What lies behind this argument is the assumption that vouchers are currently unconstitutional, that is, that the HOPE programs and the GTEG are unconstitutional, at least inasmuch as they are redeemed at religiously-affiliated preschools and colleges.  Do they really want to offer someone a golden opportunity to press their argument to its logical conclusion?

     I think it is good politics and policy, not to mention more just, to separate the constitutional issue from the question of whether we should have a program of elementary and secondary vouchers.  As it stands, Georgia’s constitution is a barrier, not only to the innovative use of non-governmental service providers, but to the continued implementation of some of the most successful and popular measures ever adopted by a state government.  Let’s fix the constitution and worry about school choice later.