Bush v. Holmes, Nos. 02-3160/3163/3199 (Fla. Dist. Ct. App. August 16, 2004)

Following an en banc rehearing, the entire Florida Court of Appeals for the First District has withdrawn its previous decision by a three-judge panel on the question of whether Florida’s private school voucher program violates the state constitutional provision that prohibits the use of public funds to "directly or indirectly [aid] any sectarian institution" and issued an en banc ruling to the same effect. The court rejected the state’s argument that the Florida constitution provides no greater restrictions on taxpayer support of public institutions than does the federal Establishment Clause. Concluding that the language of the state and federal provisions is not synonymous, the court stated: "For a court to interpret the no-aid provision of article I, section 3 as imposing no further restrictions on the state’s involvement with religious institutions than the Establishment Clause, it would have to ignore both the clear meaning and intent of the text and the unambiguous history of the no-aid provision." The appellate court pointed out that while the voucher program satisfies the federal Establishment Clause under the three-pronged Lemon v. Kurtzman test, the state constitution’s "no aid" provision contains a broader prohibition against expenditure of state revenues that imposes an additional restriction. The court also found without merit the state’s argument that the state constitution violates the Free Exercise Clause of the U.S. Constitution. Citing Locke v. Davey, 124 S. Ct. 1307 (2004), the Florida court pointed out that the U.S. Supreme Court has concluded that the U.S. Constitution does not require a state government to subsidize religious instruction whenever it subsidizes non-religious instruction. The appellate court has certified its decision to the Florida Supreme Court for expedited consideration as a "question of great public importance."

[Editor’s Note: For a summary of, and link to, the earlier decision by the three-judge panel, see below.]