Bending It Like Becket: Anti-Separation Legal Group Spreads Falsehoods About Oklahoma’s ‘No-Aid’ Clause

By Kelly Percival

Thirty-eight states protect religious liberty in their constitutions by prohibiting taxpayer money from being used to fund religion or religious institutions. These “no-aid clauses” safeguard the integrity of houses of worship by ensuring that they do not become beholden to state interests. Next week, however, Oklahoma voters will face State Question 790, a dangerous ballot measure that, if passed, would repeal Oklahoma’s no-aid-to-religion clause and erode the separation of church and state there.

In spite of the importance of keeping the no-aid clause, the Becket Fund – the group behind the Hobby Lobby lawsuit that allowed corporations to use religion as an excuse to deny women insurance coverage for contraception – has been posting wildly misleading information and ads about the impacts of SQ790. Most disturbing, they have been using students with disabilities as pawns in their deceptive campaign.

In one of the ads, the parents of a child with disabilities recall how they received a private-school voucher to send their son to a Christian school after he was bullied at a public school. The ad insinuates that, if SQ790 does not pass, these vouchers for students with disabilities will disappear.

This claim is baseless.

First, let’s get one thing straight: private-school vouchers are not a good thing for students with disabilities. Just last September, the federal government released a report showing that students with disabilities aren’t well served by vouchers. Unlike public schools, private schools are not required to provide special education services to students who need them or to make their facilities wheelchair-accessible. They are also allowed to discriminate against students with disabilities during the application process and to isolate any students they do admit from their nondisabled peers.

Second, last February, the courts upheld the very voucher program discussed in the Becket Fund ad, finding it to be compatible with Oklahoma’s no-aid clause. In Oliver v. Hofmeister, opponents of the voucher program argued that using state funding to send students with disabilities to religious schools violated the no-aid clause. The Supreme Court of Oklahoma disagreed and held that this voucher program was constitutional. It reasoned (incorrectly, AU would say) that the program doesn’t just fund religious schools, it also provides some benefit to the state because the students would otherwise require special-education services from the public schools.

Oklahoma’s no-aid clause does not put this voucher program at risk, and SQ790 does nothing to protect it. It is patently false for the Becket Fund to claim otherwise.

Attention, Oklahomans: Vote NO on State Question 790.

Another misleading fact sheet posted on Facebook by a group of Oklahoma faith leaders claims that approving SQ790 would “allow” Christian providers to serve the poor, the disabled, and the homeless and would “allow” faith-based medical providers to tend to the sick.

But the truth is that the Oklahoma constitution already allows religious organizations to receive state funds to provide secular services. As far back as 1946, the Oklahoma Supreme Court declared in Murrow Indian Orphans v. Childers that Oklahoma’s no-aid clause allows the state to provide funding to religious organizations so long as it involves “the element of substantial return to the State and do[es] not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the State.” Under this ruling, religious organizations that aid the poor, the disabled, the homeless and the sick can thus receive funding because they provide a “substantial” benefit to the state.

Approving SQ790 would not do anything to “allow” religious organizations to help the needy because these organizations already can do so. But approving SQ790 could allow public funding to be allocated in new ways for religion and religious institutions (at least, to the extent that such allocation does not violate the church-state separation provisions of the federal Constitution’s First Amendment).

This kind of government aid of religion is unlikely to provide any benefit to the state and would chisel away at the wall of separation between church and state in Oklahoma. Indeed, as the Oklahoma Supreme Court made clear in Oliver, “[t]he purpose of the ‘no aid’ clause is to support the separation of church and state and to ensure that churches are free from state control.”

Oklahomans of all faiths (and those of no particular faith) should support this goal and vote no on SQ790.

Kelly Percival is a Madison Fellow in Americans United’s Legal Department.