Bush v. Holmes (886 So. 2d 340, 2004)

ON MOTION FOR REHEARING EN BANC

VAN NORTWICK, J.

Having considered en banc the arguments raised in this appeal, we withdraw our previous majority opinion and issue the following en banc opinion.

Governor John Ellis (“Jeb”) Bush, Attorney General Charlie Crist, Chief Financial Officer Tom Gallagher and Commissioner of Agriculture Charles H. Bronson, as and constituting the Florida Cabinet; the Florida Department of Education; and the Florida Board of Education appeal a final summary judgment in which the trial court ruled that the Florida Opportunity Scholarship Program (OSP), section 229.0537, Florida Statutes (1999), facially violated article I, section 3 of the Florida Constitution. The central issue before us in this appeal is whether the OSP violates the last sentence of article I, section 3 of the Florida Constitution, the so-called “no-aid” provision, which mandates that “[n]o revenue of the state ... shall ever be taken from the public treasury directly or indirectly in aid ... of any sectarian institution.” The appellants argue that article I, section 3, in its entirety, including the no-aid provision, imposes no greater restrictions on state aid to religious schools than does the Establishment Clause in the United States Constitution and that, as a result, the summary judgment must be reversed on the authority of the recent decision of the United States Supreme Court in Zelman v. Simmons-Harris, 586 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), in which the court held an Ohio parental choice voucher program constitutional under the Establishment Clause. Further, the appellants argue that, if the no-aid provision is interpreted to prohibit the use of state funds to provide OSP vouchers for students attending sectarian schools, the provision would violate the Free Exercise Clause of the First Amendment. Because we cannot read the entirety of article I, section 3 of the Florida Constitution to be substantively synonymous with the federal Establishment Clause, we find the appellants’ arguments without merit.

The first sentence of article I, section 3 of the Florida Constitution is synonymous with the federal Establishment Clause in generally prohibiting laws respecting the establishment of religion. In addition to the Establishment Clause language, article I, section 3 also includes the language of the no-aid provision, which expands the restrictions in state aid and to religion by specifically prohibiting the expenditure of public funds “directly or indirectly” to aid sectarian institutions. 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. There is no dispute in this case that state funds are paid to sectarian schools through the OSP vouchers. Thus, we hold the OSP unconstitutional under the no-aid provision to the extent that the OSP authorizes state funds to be paid to sectarian schools. Finally, based upon the recent United States Supreme Court decision in Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), we hold that the no-aid provision does not violate the Free Exercise clause of the United States Constitution. Accordingly, we affirm the decision of the trial court and certify a question of great public importance to the Florida Supreme Court.

I. Procedural History

Various parents of children in Florida elementary and secondary schools and several organizations, appellees, filed a complaint seeking declaratory and injunctive relief challenging the facial constitutionality of the OSP, section 229.0537, Florida Statutes (1999). In their action, circuit court case number 99-3370, these plaintiffs asserted that the OSP was violative of article I, section 3 and article IX, section 1 of the Florida Constitution as well as the Establishment Clause of the First Amendment to the United States Constitution and 42 U.S.C. section 1983. The members of the Florida Cabinet and the Florida Department of Education were named as defendants.

In a separate action, circuit court case number 99-4110, other plaintiffs, also ap-pellees, including the Florida Education Association/United, AFT AFL-CIO, and various individuals also challenged the OSP under the state and federal constitutions. The Florida Cabinet members, the State Board of Education, and the Florida Department of Education were named as defendants. These two proceedings were consolidated, and the parents and guardians of students who had received vouchers under the OSP were allowed to intervene.

The trial court first considered the question of whether the OSP was facially constitutional under the provisions of article IX, section 1 of the Florida Constitution, which required that “[ajdequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools....” After receiving argument, the trial court ruled that “[sjection 229.0537, Fla. Stat., insofar as it establishes a program through which the State pays tuition for certain students to attend private schools, is declared to be unconstitutional on its face under Article IX, § 1 of the Florida Constitution.”

In the first appeal of this case, this court reversed, explaining that “nothing in article IX, section 1 clearly prohibits the Legislature. from allowing the well-delineated use of public funds for private school education, particularly in circumstances where the Legislature finds such use is necessary.” Bush v. Holmes, 767 So.2d 668, 675 (Fla. 1st DCA 2000)(footnote omitted). Specifically declining to consider the other constitutional arguments raised by the plaintiffs, this court remanded the cause to the trial court for its consideration of the remaining issues.

While the cause was pending on remand, the United States Supreme Court issued its decision in Zelman v. Simmons-Harris holding constitutional under the Establishment Clause the Ohio Pilot Project Scholarship Program, under which parents of Cleveland schoolchildren can receive a tuition voucher redeemable either in participating Cleveland private schools or public schools in districts adjacent to Cleveland. Thereafter, the plaintiffs voluntarily dismissed their challenges under the Establishment Clause of the First Amendment to the United States Constitution and under article IX, section 6 of the Florida Constitution. Thus, the only issue then remaining was whether the OSP was facially constitutional under the provisions of article I, section 3 of the Florida Constitution prohibiting the use of state revenues directly or indirectly in aid of sectarian institutions. Following discovery and hearing, the trial court ruled that the OSP is violative of article I, section 3 of the Florida Constitution.

In its final summary judgment, the trial court found that

the vast majority of students participating in the OSP (47 of 51) have enrolled in “sectarian institutions” of learning in Escambia County. This allegation had previously been admitted by Defendants in pleadings and is not in dispute.

Appellants have not taken issue with this finding of the trial court.

The trial court further found that

[wjhile there is no evidence or assertion that any of the schools would cease to operate without the benefit of the OSP funds, that is not the test. It cannot logically, legally, or persuasively be argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious educational component, is advanced and enhanced by the additional, financial support received through operation of the Opportunity Scholarship Program.

Appellants do not take specific issue with this finding either, although appellants suggest that any benefit received is de minimis or is incidental to the benefit available to the public in general.

The trial court further found that the “funds disbursed under the OSP emanate directly from the revenue of Florida and its political subdivisions” and that such disbursements result “in a dollar for dollar reduction in the funds of the public school or school district” where the student of the recipient parent was enrolled. Thus, the “funds are without question revenue ‘taken from the public treasury’ of a political subdivision” and are hence distinguishable from the type of state aid found constitutional in Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971), and Johnson v. Presbyterian Homes of Synod of Florida, Inc., 239 So.2d 256 (Fla.1970). The trial court expressly rejected the argument that, because state funds are disbursed to the parent or guardian of a student who then restrietively endorses the state warrant to the private school of choice, OSP does not directly or indirectly benefit any particular church, religious denomination or sectarian institution. The trial court declared section 229.0537 facially unconstitutional and enjoined appellants from taking any action to implement the OSP.

II. The Florida Opportunity Scholarship Program

In section 229.0537(1), Florida Statutes (1999), the Florida Legislature described the purpose for establishing the OSP, in part, as follows:

The Legislature finds that the State Constitution requires the state to provide the opportunity to obtain a high-quality education. The Legislature further finds that a student should not be compelled, against the wishes of the student’s parent or guardian, to remain in a school found by the state to be failing for 2 year’s in a 4-year period.

The Legislature created the OSP to allow a student attending a “failing” public school to attend a private school, sectarian or non-sectarian, with the financial assistance of the state. Under the OSP, the state

make[s] available opportunity scholarships in order to give parents and guardians the opportunity for them children to attend a public school that is performing satisfactorily or to attend an eligible private school when the parent or guardian chooses to apply the equivalent of the public education funds generated by his or her child to the cost of tuition in the eligible private school....

§ 229.0537(1), Fla. Stat. (1999). Thus, when a school is found by the state to be a “failing” school during two years of a four-year period, the school is required to notify parents and guardians of students attending such a failing school of the opportunity to enroll in a public school within the district which is not failing, or of the opportunity to receive a “scholarship,” that is, a tuition voucher, by which a student may attend a private school. § 229.0537(2)-(4), Fla. Stat. (1999).

For the student attending a private school with assistance under the OSP, a state warrant is made payable to a student’s parent or guardian and is mailed by the Department of Education directly to the private school chosen by the parent or guardian; the parent or guardian then is to restrictively endorse the warrant to the private school. § 229.0537(6)(b), Fla. Stat. (1999). The private schools participating in the OSP have specified requirements, including an agreement “not to compel any student attending the private school on an opportunity scholarship to profess a specific ideological belief, to pray, or to worship.” § 229.0537(4), Fla. Stat. (1999).

III. Article I, Section S

Article I, section 3 of the Florida Constitution provides:

Religious Freedom. — There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

As explained in the Commentary to this section, the first sentence of section 3 is “akin to the first clause in the First Amendment of the U.S. Constitution.” Talbot “Sandy” D’Alemberte, Commen tary, art. I, § 3, 25A Fla. Stat. Annot. 79 (1991). The second sentence is a continuation of the limitation on the exercise of religion which first appeared in the 1868 Florida Constitution, the so-called “Recon-structionist Constitution.” See id. As for the third and last sentence, it is “much the same as under section 6 of the 1885 Constitution,” id., and there is no analogue to this provision in the federal constitution. Only the third and last sentence of article I, section 3, the no-aid provision, is pertinent in the case at bar because it is that provision which was the basis for the trial court’s ruling before us.

A. Historical Context for the No-Aid Provision.

There exists no record from the constitutional convention that incorporated the no-aid provision into the 1885 Florida Constitution. Nevertheless, history tells us a great deal about the origins and intent of the no-aid provision which can assist us in its interpretation. See State v. Butler, 70 Fla. 102, 69 So. 771, 777 (Fla.1915)(“In construing and applying provisions of a Constitution the leading purpose should be to ascertain and effectuate the intent and object designed to be accomplished.... Every word of a state Constitution should be given its intended meaning and effect. ...”).

Florida’s no-aid provision was adopted into the 1868 Florida Constitution during the historical period in which so-called “Blaine Amendments” were commonly enacted into state constitutions. The primary purpose of these amendments to the various state constitutions was to bar the use of public funds to support religious schools. Justice Brennan discussed this history, observing that the “subsidy of sectarian educational institutions became embroiled in bitter controversies very soon after the Nation was formed.” Lemon v. Kurtzman, 403 U.S. 602, 645, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)(Brennan, J., concurring). Into the 19th century, state governments looked to the church to provide education, often with government aid, and political disputes frequently arose over which churches or sectarian organizations should receive public assistance. Id. at 645-46, 91 S.Ct. 2105.

The Nation’s rapidly developing religious heterogeneity, the tide of Jacksonian democracy, and growing urbanization soon led to widespread demands throughout the States for secular public education. At the same time strong opposition developed to the use of the States’ taxing powers to support private sectarian schools. Although the controversy over religious exercises in the public schools continued into this century, the opponents of subsidy to sectarian schools had largely won their fight by 1900. In fact, after 1840, no efforts of sectarian schools to obtain a share of public school funds succeeded. Between 1840 and 1875, 19 States added provisions to their constitutions prohibiting the use of public school funds to aid sectarian schools, and by 1900, 16 more States had added similar provisions. In fact, no State admitted to the Union after 1858, except West Virginia, omitted such provision from its first constitution. Today fewer than a half-dozen States omit such provisions from their constitutions.

Id. at 646-47, 91 S.Ct. 2105 (citations and footnote omitted).

The various amendments in state constitutions evidence a wide diversity in language and scope, but all contained a form of restriction on state financial support to religions or religious institutions. Most states adopted provisions less restrictive than the Florida no-aid provision. Generally, the less restrictive language in state constitutions was limited to ensuring that public education was free of sectarian instruction and prohibiting direct public funding of private religious schools or institutions, see, e.g., Mass. Const. Amend, art. 18 (“No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the Commonwealth or federal authority or both ....”); see generally, Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551, 576-78 (2003). Other provisions expressly allow limited government assistance with either basic transportation or higher education. See, e.g., N.J. Const, art. 8, § 4, par. 3 (“The Legislature may, within reasonable limitation's as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school.”); West Morris Reg’l Bd. of Educ. v. Sills, 58 N.J. 464, 279 A.2d 609, 612 (1971), cert. denied, 404 U.S. 986, 92 S.Ct. 450, 30 L.Ed.2d 370 (1971)(recognizing that New Jersey Constitution article 8, § 4, par. 3 authorizes the state to provide transportation of students to public and private schools.). The amendments in other state constitutions prohibit direct funding of religious institutions or schools, “but leave open, at least in their constitutional texts, the question of whether or not indirect state funding, such as vouchers, are permissible.” DeForrest, 26 Harv. J.L. & Pub. Pol’y at 578. As Professor DeForrest observes, the most restrictive state constitutional provisions, like the Florida no-aid provision, “go far beyond the prohibition of direct aid to schools by preventing indirect aid as well ... [and by] ... prohibiting aid not only to the schools, but also to any religious or ‘sectarian’ institution.” Id. at 587. The Florida and Georgia Constitutions both include the express prohibition of “indirect” aid. See art. I, § 2, para. VII, Ga. Const. (“No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult or religious denomination or of any sectarian institution”).

In its recent opinion in Locke v. Davey, the United States Supreme Court has recognized that state constitutional amendments such as Florida’s no-aid provision prohibit the state from using tax dollars to support religious institutions. As discussed in more detail in section VII below, in Locke, the court held that the provision of the Washington Constitution prohibiting the use of “public money or property” to support “any religious worship, exercise or instruction, or the support of any religious establishment,” article I, section 11, Washington Constitution, did not violate the Free Exercise Clause of the United States Constitution. Chief Justice Rehnquist discussed the purpose and history of Washington’s constitutional provision and similar state constitutional provisions, as follows:

Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State’s antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an “established” religion. See R. Butts, The American Tradition in Religion and Education 15-17, 19-20, 26-37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 (2003)(“In defending their religious liberty against overreaching clergy, Americans in all regions found that Radical Whig ideas best framed their argument that state-supported clergy undermined liberty of conscience and should be opposed”); see also J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 65, 68, 67 S.Ct. 504, 91 L.Ed. 711 (1947)(ap-pendix to dissent of Rutledge, J.)(noting the dangers to civil liberties from supporting clergy with public funds).

Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E.g., Ga. Const. Art. IV, § 5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters and Other Organic Laws 789 (F. Thorpe ed.1909)(reprinted 1993)(“A11 persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own”); Pa. Const., Art. II (1776) in 5 id., at 3082 (“[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent”); N.J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, § 1 (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, § 3 (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, § 3 (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, § 3 (1802), in 5 id., at 2910 (similar). The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy.

124 S.Ct. at 1313-14 (footnotes omitted).

Given this historical context and the highly restrictive language in Florida’s no-aid provision, the drafters of the no-aid provision clearly intended at least to prohibit the direct or indirect use of public monies to fund education at religious schools.

In addition, the legislative history of the most recent general revision of the Florida Constitution in 1966-68, included in pertinent part in the record on appeal, confirms that the no-aid language was intended to impose restrictions beyond what is restricted by the federal Establishment Clause. The proposed revised Constitution forwarded to the Florida Legislature by the Constitution Revision Commission (“CRC”) omitted what is now the final sentence of article I, section 3. See Fla. H.R. Jour. 1-3 (Extra.Sess.1967). This omission would have had the effect of equating the language of article I, section 3 with the language of the federal Establishment Clause. The legislature revised the CRC’s draft, however, to retain the no-aid prohibition in addition to the Establishment Clause language. See H. Amend. 3 to Fla. H.R. 3-XXX (1967). By retaining the specific prohibition on using public funds to support sectarian institutions contained in the 1885 Constitution in addition to the Establishment Clause language, the legislature — and subsequently the electorate, which ratified the Constitution of 1968 — made clear that article I, section 3 necessarily imposes restrictions beyond the Establishment Clause.

B. The Language of the No-Aid Provision.

Our interpretation of the no-aid provision must start with its text. See Florida Soc’y of Ophthalmology v. Florida Optometric Ass’n, 489 So.2d 1118, 1119 (Fla.1986)(“Any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s explicit language.”); see also In Re Advisory Opinion to Governor Request of June 29, 1979, 374 So.2d 959, 964 (Fla.1979)(“In construing provisions of the constitution, each provision must be given effect, according to its plain and ordinary meaning. The court must give provisions a reasonable meaning, tending to fulfill, not frustrate, the intent of the framers and adopters.”); Shriners Hosps. for Crippled Children v. Zrillic, 563 So.2d 64, 67 (Fla.1990). The constitutional prohibition in the no-aid provision involves three elements: (1) the prohibited state action must involve the use of state tax revenues; (2) the prohibited use of state revenues is broadly defined, in that state revenues cannot be used “directly or indirectly in aid of’ the prohibited beneficiaries; and (3) the prohibited beneficiaries of the use of state revenues are “any church, sect or religious denomination” or “any sectarian institution.” We will examine each element separately.

Use of State Revenues. First, the no-aid provision focuses on the use of state funds to aid sectarian institutions, not on other types of support. As the trial court found, it is undisputed that the OSP uses state revenues to fund vouchers that are paid to private schools chosen by the parents or guardians of students. It is this use of state revenues which distinguishes the OSP from the facts in other cases in which the state has provided assistance to a religious or secular institution. See section IV below.

Directly or Indirectly. Second, the express prohibition of direct and indirect aid to churches, religions, sects or sectarian institutions in the no-aid provision evidences a clear intent by the drafters to bar a broad range of uses of state revenues to benefit sectarian organizations. The common meaning of “indirect” is “[n]ot directly planned for; secondary: indirect benefits.” American Heritage Dictionary of the English Language, 670 (1979)(empha-sis added). Thus, the legislature need not use state revenues to provide direct financial aid to sectarian institutions for the OSP to violate the no-aid provision. An indirect or secondary benefit to sectarian institutions from the use of state funds would be sufficient to violate the provision.

Appellants argue that the OSP does not constitute direct or indirect aid to any sectarian institution because the vouchers are made payable to parents, who make the choice of the school in which to enroll their children. Even though the OSP gives parents and guardians a choice as to which school to apply a tuition voucher, under the OSP statute the parents must restrictively endorse the voucher to the school, and the voucher funds are then paid by the state to the school. Because of the broad language of the no-aid provision, prohibiting the use of state revenues “directly and indirectly” in aid of secular institutions, such an indirect path for the aid does not remove the OSP from the restrictions of the no-aid provision.

Appellants further argue that the funds from the OSP vouchers do not even incidentally benefit sectarian schools receiving the voucher payments. Appellants reason that, because the record in this case shows that voucher payments to schools do not cover the full cost of educating the student and the “shortfall” in the cost is subsidized by the schools or another source, the voucher payments cannot constitute “aid” as a matter of law. We cannot agree, and adopt the reasoning of the trial court set forth in the order on appeal:

While there is no evidence or assertion that any of the schools would cease to operate without the benefit of the OSP funds, that is not the test. It cannot be logically, legally, or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious education component, is advanced and enhanced by the additional, financial support received through operation of the Opportunity Scholarship Program.

Any Sectarian Institution. Third, the no-aid provision prohibits not only aid to “any church, sect or religious denomination,” but also aid to “any sectarian institution.” Thus, the no-aid provision does not create a constitutional bar to the payment of an OSP voucher to a nonsectarian school, if the state funds do not aid indirectly a religion, church or sect which owns or operates the school. On the other hand, because an OSP voucher is used to pay the cost of tuition, any disbursement made under the OSP and paid to a sectarian or religious school is made in aid of a “sectarian institution,” the school itself, even if it can be shown that no voucher funds benefit or support a church or religious denomination. See State ex rel. Gallwey v. Grimm, 146 Wash.2d 445, 48 P.3d 274, 279 (2002)(“Neither party seriously disputes that the EOG Program [which provides tuition grants for upper division course work for use at public or private institutions to students who have completed an associate of arts degree or its equivalent and are considered financially needy] supports the subject colleges and universities with public funds.”); Hartness v. Patterson, 255 S.C. 503, 179 S.E.2d 907, 909 (1971)(holding that use of public funds to provide tuition grants to students attending participating religious institutions constituted “aid” to such institutions within meaning of, and prohibited by, article of state constitution prohibiting use of public money, directly or indirectly, to aid institutions of higher learning controlled by sectarian groups); Almond v. Day, 197 Va. 419, 89 S.E.2d 851, 857 (1955)(rejeeting view that private institutions whose students use public-funded tuition vouchers receive no direct benefit from the payment of tuition and institutional fees at such schools because “[t]uition and institutional fees go directly to the institution and are its very life blood.”).

The appellants do not dispute that sectarian schools receive state funds from OSP vouchers. The record reflects that the vast majority of the schools receiving state funds from OSP vouchers at the time of the hearing below are operated by religious or church groups with an intent to teach to their attending students the religious and sectarian values of the group operating the school. Evidence of record demonstrates, for example, that during the OSP’s first three years, ninety percent of the students in Escambia County who utilized an OSP voucher were enrolled in a school operated by the Diocese of Pensacola-Tallahassee, a unit of the Catholic Church. The record further reflects that the mission of the Pensacola-Tallahassee Diocesan school system, according to its written Mission Statement, is

to collaborate with parents in the Christian formation of students passing on to them the message of Christ taught by the Catholic Church. This is done in the context of Christian community which worships together, fosters service and strives to achieve academic excellence.

The Diocese’s “Philosophy of Education” is stated, in part, as follows:

The Diocese of Pensacola-Tallahassee sponsors pre-schools, elementary and secondary schools in Northwest Florida, dedicated to forming youth in the Catholic faith, developing Gospel values and fostering academic excellence.

IV. Case Law Interpreting Article I, Section 3

There is not a substantial body of case law interpreting the Florida no-aid provision. Appellants argue, and the dissent agrees, that reversal is required by the holdings of the Florida Supreme Court in Koerner v. Borck, 100 So.2d 398 (Fla.1958); Nohrr v. Brevard County; Johnson v. Presbyterian Homes; and Southside Estates Baptist Church v. Board of Trustees, 115 So.2d 697 (Fla.1959). Because none of these cases involve the use of state revenues to aid a sectarian institution, we find all of these cases distinguishable from the case on appeal.

In Koemer, a testamentary devise of real property to a Florida county for use as a public park was challenged. The will making the devise contained an easement pursuant to which a local church would retain the ability to use the lake located in the devised real estate for conducting baptisms and for recreational purposes. The Florida Supreme Court rejected the contention that the County could not, consistently with the Establishment Clause of the First Amendment to the United States Constitution, accept a devise of land for use as a park when the devise carries with it a perpetual easement to use part of the property for baptismal purposes. Koerner, 100 So.2d at 401. In addition, the supreme court held that the devise was not subject to attack under section 6 of the Declaration of Rights of the 1885 Constitution, which was still in effect when Koemer was decided. This provision “prohibited] the expenditure of public funds, directly or indirectly, in aid of any church, sect, religious denomination, or sectarian institution,” and the supreme court reasoned that “any improvement to the county-owned land will be made for the benefit of the people of the county and not for the church.” Id. at 402. Thus, the court found no state aid flowing to the church. In addition, Koemer did not involve a specific disbursement to improve the park made from the public treasury, though in dicta the Koemer court stated that a disbursement to improve the park would not, under the facts of that case, render the devise unconstitutional.

In Nohrr, a citizen challenged the “Higher Educational Facilities Authorities Law,” section 243.18, et seq., Florida Statutes (1969), by which Florida counties, upon a declaration of need and public purpose, were permitted to create a “County Educational Facilities Authority” which would assist institutions of higher education in obtaining financing to develop or expand their educational facilities. 247 So.2d at 306. In Nohrr, the Florida Institute of Technology sought assistance from the County Authority, which adopted a resolution authorizing the issuance of $880,000 in revenue bonds. The Higher Educational Facilities Authorities Law was challenged as being violative of the First Amendment to the U.S. Constitution and of article 1, section 3 of the Florida Constitution. The supreme court held:

A state cannot pass a law to aid one religion or all religions, but state action to promote the general welfare of society, apart from any religious considerations, is valid, even though religious interests may be indirectly benefited. If the primary purpose of the state action is to promote religion, that action is in violation of the First Amendment, but if a statute furthers both secular and religious ends, an examination of the means used is necessary to determine whether the state could reasonably have attained the secular end by means which do not further the promotion of religion. Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So.2d 256 (Fla.1970). See also, Murray v. Comptroller of Treasury, 241 Md. 383, 216 A.2d 897 (1966) (cert. den. sub nom. Murray v. Goldstein, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55). Walz v. Tax Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

The Educational Facilities Law does not violate the First -Amendment to the United States Constitution nor does it do violence to Art. 1, s. 3, of the Florida Constitution.

247 So.2d at 307.

The issuance of revenue bonds to support centers of higher education, however, regardless ■ of whether they are sectarian or non-sectarian, is not the payment of money from the revenue of the public treasury “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution” as prohibited by article I, section 3.

In Johnson, a statute granting a property tax exemption to non-profit nursing homes, which was the basis for a tax exemption accorded to a facility owned by the' Presbyterian Synod of Florida, was challenged as being violative of article I, section 3 of the Florida Constitution as well as the Establishment Clause of the federal constitution. 239 So.2d at 258-259. After quoting extensively from Walz v. Tax Commission of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), in which the United States Supreme Court held that a property tax exemption did not run afoul of the First Amendment, the Florida Supreme Court upheld the constitutionality of the property tax exemption statute at issue, finding that it was enacted to promote the general welfare and that any benefit received by a religious denomination was incidental to the achievement of a public purpose. 239 So.2d at 261. The supreme court did not specifically address the no-aid provision in article I, section 3, and analyzed the case using considerations developed in Establishment Clause jurisprudence. The statute at issue in Johnson, unlike the statute at issue here, did not involve a disbursement from the public treasury.

In Southside Estates Baptist Church, a decision by the Board of Trustees of a school tax district in Duval County to allow several churches to use various school buildings during Sunday non-school hours was challenged as being contrary to the state constitution. It was argued that the “described use of a school building constitute[d] an indirect contribution of financial assistance to a church in violation of Section 6 of the Declaration of Rights of the Florida Constitution,” which prohibited the expenditure of state funds, directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution; and “eontravene[d] the proscription of the First Amendment to the Constitution of the United States which prohibits any law establishing a religion.” 115 So.2d at 698. Rejecting the constitutional challenge, the Supreme Court explained:

We think, however, that it is totally unnecessary to become involved in any prolonged discussion of the applicability of the separation of Church and State principle. In regard to the Florida Constitutional prohibition against contributing public funds in aid of any religious denomination, we find nothing in this record to support a conclusion that any public funds have been contributed. Taking note of appellant’s insistence that the use of the building is something of value and that the wear and tear is an indirect contribution from the public treasury, it appears to us that we might here properly apply the maxim De min-imis non curat lex. Nothing of substantial consequence is shown and we see no reason to burden this opinion with a discussion of trivia.

Id. at 699-700 (emphasis added). As was apparently the case in Johnson, no disbursement was made from the public treasury in Southside Estates Baptist Church, a fact which significantly distinguishes it from the instant case.

In each of the above cases, state government provided or allowed a form of assistance to a religious institution through such mechanisms as tax exemptions, revenue bonds, and similar state involvement. These forms of assistance constitute substantially different forms of aid than the transfer of public funds expressly prohibited by the no-aid provision. “In the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches. In the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions.” Donald A. Gian-nella, Religious Liberty, Nonestablishment, and Doctrinal Development, 81 Harv. L.Rev. 513, 553 (1968). Because the prohibitions of the no-aid provision are limited to the payment of public monies, this provision itself recognizes that the payment of public funds in aid of religious institutions involves an especially problematic governmental involvement in religious institutions. As Justice Brennan explained:

Tax exemptions and general subsidies, however, are qualitatively different [than the payment of state funds]. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. It assists the exempted enterprise only passively, by relieving a privately funded venture of the burden of paying taxes. In other words, in the case of direct subsidy, the state forcibly diverts the income of both believers and nonbelievers to churches, while in the case of an exemption, the state merely refrains from diverting to its own uses income independently generated by the churches through voluntary contributions. Thus, the symbolism of tax exemption is significant as a manifestation that organized religion is not expected to support the state; by the same token the state is not expected to support the church.

Walz, 397 U.S. at 690-1, 90 S.Ct. at 1422-3 (Brennan, J., coneurring)(footnotes, quotation marks, and citations omitted).

The dissent asserts that City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla.1983), supports reversal here. Gidman is inapposite to the instant case. Gidman addressed whether section 7.06 of the city’s charter, which prohibited the expenditure of city funds “whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization,” prevented the city from contracting with a non-profit organization to provide a child daycare center. Id. at 1278. The city possessed broad home rule powers under Article VIII, section 2(b) of the Florida Constitution, and section 166.021(4), Florida Statutes (1979), to act for a “municipal purpose.” Id. at 1280. The Supreme Court interpreted section 7.06 of the charter to allow the expenditure of city funds to a non-profit organization for childcare services consistent with the City’s home rule powers. The Gidman court reasoned:

If interpreted literally, the charter limitation would hamstring the city in carrying out its governmental functions. It would prevent the city from contracting with any non-profit organization to provide municipal services. This would require the city to pay a much higher price for any service which is otherwise available through a charitable or service organization .... It is illogical to require the city to choose between contracting with a profit-making organization and thereby paying the entire cost, or not providing for the service at all. It could not have been the intention of the people to require such an inefficient allocation of economic resources. There is no danger that the city’s funds would be spent for some non-municipal purpose.

Id. at 1281. The court chiefly focused on whether the providing of childcare services was within the city’s municipal purpose. Id. at 1281-82. Plainly, the Gidman analysis has no application to an interpretation of the no-aid provision.

V. Article I, Section S of the Florida Constitution is More Restrictive than First Amendment of United States Constitution

Appellants argue that article I, section 3 of the Florida Constitution should be interpreted in a manner substantively synonymous with the Establishment Clause of the First Amendment. We cannot agree. For a court to interpret the no-aid provision as adding nothing substantive to article I, section 3 of the Florida Constitution would require that court to ignore the clear meaning of the text of the provision and its formative history. See section III above. It is a fundamental principle of constitutional interpretation that “[e]very word of the Florida Constitution should be given its intended meaning and effect. In construing constitutions, that construction is favored which gives effect to every clause and every part of it. A construction which would leave without effect any part of the language used should be rejected if an interpretation can be found which gives it effect.” In re: Apportionment Law Senate Joint Resol. 1305, 1972 Reg. Sess., 263 So.2d 797, 807 (Fla.1972).

In Silver Rose Entertainment, Inc. v. Clay County, 646 So.2d 246, 250-1 (Fla. 1st DCA 1994), rev. denied, 658 So.2d 992 (Fla.1995), we explained that article I, section 3 utilizes the test established in Lemon v. Kurtzman, 403 U.S. at 612-13, 91 S.Ct. at 2111, so that a statute which “passes muster under article I, section 3 of the Florida Constitution necessarily meets the federal Establishment Clause tests.” However, we noted that, in addition to the three-stage Lemon test, article I, section 3 “adds a fourth: The statute must not authorize the use of public moneys, directly or indirectly, in aid of any sectarian institution.” Silver Rose, 646 So.2d at 251; see also Rice v. State, 754 So.2d 881, 883 (Fla. 5th DCA), rev. denied, 779 So.2d 272 (Fla.2000).

The second element of the Lemon test, sometimes referred to as the “primary effects prong,” Zelman v. Simmons-Harris, 536 U.S. at 669, 122 S.Ct. at 2476 (O’Connor, J., concurring), may be resolved by considering whether a statute has a neutral purpose. In cases where government aid is received by religious schools, the United States Supreme Court has drawn a distinction between those programs which provide aid directly to religious schools and those programs which provide aid by means of a genuine and independent private choice of an individual. In the latter programs, such aid has been found not to run afoul of the Establishment Clause. See Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983); Witters v. Washington Dep’t of Servs. for Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993); Zelman.

If article I, section 3 of the Florida Constitution was coterminous with the First Amendment to the United States Constitution, our inquiry in this case would be decidedly different, and a reversal would be mandated under Zelman. , If we were resolving this case purely on Establishment Clause principles, the fact that the OSP program on its face has a religiously neutral purpose — to aid children in failing public schools — and the fact that the OSP gives parents or guardians the freedom of choice in selecting an alternative to a failing public school, would be dispositive factors, without regard to whether a disbursement was made directly to a parent or guardian rather than the school. As Justice Thomas explained in Mitchell v. Helms, 530 U.S. 793, 815-16, 120 S.Ct. 2530, 2544-45, 147 L.Ed.2d 660 (2000):

Although some of our earlier cases, ..., did emphasize the distinction between direct and indirect aid, the purpose of this distinction was merely to prevent subsidization of religion.... [0]ur more recent cases address this purpose not through the direct/indirect distinction but rather through the principle of private choice, as incorporated in the first Agostini [v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)] criterion (i.e., whether any indoctrination could be attributed to the government). If aid to schools, even “direct aid,” is neutrally available and, before reaching or benefitting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any “support of religion.... ” [T]here is no reason why the Establishment Clause requires such a form.

(Citations omitted).

However, article I, section 3 of Florida’s Constitution is plainly not identical to the First Amendment. As explained in Silver Rose and in section III above, unlike the First Amendment and the first sentence of article I, section 3, the no-aid provision contains a broad prohibition against the expenditure of state revenues. It prohibits the use of state funds either “directly or indirectly in aid of’ not only churches, religions, and sects, but any sectarian institution.

We find it significant that the United States Supreme Court has recognized that a state constitutional provision substantially similar to Florida’s no-aid provision is “far stricter” than the Establishment Clause, see Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. at 489, 106 S.Ct. at 753, and “draws a more stringent line than that drawn by the United States Constitution.... ” Locke, 124 S.Ct. at 1313.

In Witters, Mr. Witters, who was blind, requested financial assistance to enroll in a seminary under a program of the State of Washington which provided financial aid to disabled students. The state denied his request. 474 U.S. at 483-84, 106 S.Ct. at 749-51. The denial was upheld in the lower state tribunals based on state constitutional grounds. Id. at 484, 106 S.Ct. 748. The Washington Supreme Court affirmed, but based its decision solely on the federal Establishment Clause. See Witters v. State Comm’n for the Blind, 102 Wash.2d 624, 689 P.2d 53, 56-57 (1984), rev’d sub nom, Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846. On review, the United States Supreme Court unanimously reversed. The Court held that the “extension of aid under Washington’s vocational rehabilitation program to finance petitioner’s training at a Christian college ... would [not] advance religion in a manner inconsistent with the Establishment Clause of the First Amendment.” Witters, 474 U.S. at 489, 106 S.Ct. at 753. The Court nevertheless remanded the case, stating that “the state court is of course free to consider the applicability of the 'far stricter’ dictates of the Washington State Constitution.” Id.

On remand, the Washington Supreme Court again upheld the state’s decision to deny financial aid, this time on state constitutional grounds. The court rested its holding on the language of article I, § 11 of the Washington Constitution, which, the court concluded, “prohibits not only the appropriation of public money for religious instruction, but also the application of public funds to religious instruction.” Witters v. State Comm’n for the Blind, 112 Wash.2d 363, 771 P.2d 1119, 1122 (1989)(original emphasis omitted). The Washington court considered the language of the state constitution substantially more “sweeping and comprehensive” than the language of the Establishment Clause and, accordingly, the court reasoned that “applying] federal establishment clause analysis ... would be inappropriate.” Id. The United States Supreme Court subsequently denied Mr. Witters’ petition for writ of certiorari. Witters v. Washington Dep’t of Servs. for the Blind, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989).

In its recent opinion in Locke, the Supreme Court has again addressed the same Washington constitutional provision that it considered in Witters. As discussed in detail in section VII infra, the Court recognized that a state constitutional provision, like Florida’s no-aid provision, can preclude state financial aid to religious institutions without violating either the Establishment Clause or Free Exercise Clause. Locke, 124 S.Ct. at 1315. Thus, “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause,” id. at 1311, and states are free to “draw[ ] a more stringent line than drawn by the United States Constitution....” Id. at 1313.

As was the case in Witters, the supreme courts of several states have held unconstitutional under their state constitutions various forms of financial assistance involving school choice. See Opinion of the Justices (Choice in Educ.), 136 N.H.357, 616 A.2d 478, 480 (1992)(a proposal to reimburse private primary and relocating schools at a rate of 75% of the per-pupil cost of public education violates state constitution because “[n]o safeguards exist to prevent the application of public funds to sectarian uses”); Opinion of Justices to House of Representatives, 357 Mass. 846, 259 N.E.2d 564, 565-66 (1970)(a proposal to give $100 to the parents of every school age child, whether attending private or public schools, would violate article 46, § 2 of commonwealth constitution, which provides that “no grant, appropriation or use of public money or property ... shall be made or authorized by the commonwealth or any political division thereof for the purpose of founding, maintaining or aiding ... any school ... or educational ... undertaking which is not publicly owned”); and Chittenden Town School Dist. v. Dep’t of Educ., 169 Vt. 310, 738 A.2d 539, 562 (1999)(holding unconstitutional state statute authorizing school districts to provide high school education by paying tuition for non-public schools selected by parents under Chapter 1, article 3 language of the Vermont Constitution, which provides, in relevant part, that “no person ought to, or of right can be compelled to ... support any place of worship ... contrary to the dictates of conscience”).

Appellants argue that we should find persuasive the holding and reasoning of the Wisconsin Supreme Court in Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602 (1998). In Jackson, the Wisconsin court held that state’s parental choice voucher program constitutional and interpreted the so-called “benefits clause” under article I, section 18 of the state’s constitution, which provides that “nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries,” as having meaning “equivalent of the Establishment Clause of the First Amendment.” Id. at 620. In adopting an Establishment Clause standard, the Jackson court explained its reasoning, as follows:

[W]e focus our inquiry on whether the aid provided by the amended [voucher payment program] is “for the benefit of’ such religious institutions.... [T]he language “for the benefit of’ in art. I, § 18 is not to be read as requiring that some shadow of incidental benefit to a church-related institution brings a state grant or contract to purchase within the prohibition of the section. Furthermore, ... the language of art. I § 18 cannot be read as being so prohibitive as not to encompass the primary-effect test. The crucial question, under art. I, § 18, as under the Establishment Clause, is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.

Id. at 621 (citations, footnotes and quotation marks omitted).

The Florida no-aid provision, however, is drafted to be substantially more restrictive than the “benefits clause” in the Wisconsin Constitution. First, the Wisconsin provision lacks a prohibition on both direct and indirect benefits. Second, the prohibition in the Wisconsin Constitution does not expressly bar benefit to all “sectarian institutions,” as does Florida’s no-aid provision. As a result, we find the Jackson case distinguishable and the analysis in Jackson unpersuasive.

VI. The Unconstitutionality of the OSP Does Not Render Other State Programs Similarly Unconstitutional

The Governor and the Attorney General argue that holding the OSP unconstitutional will put at risk a great multitude of other programs and activities in which the state provides funds for health and social service programs that are operated by institutions affiliated with a church or religious group. Those appellants assert that these programs range from the use of church buildings as polling places during elections; to the use of institutions affiliated with a religion to provide social services, such as substance abuse transitional housing or assistance to victims of crime; to the use of healthcare facilities owned by religious groups by Medicaid recipients.

Our holding here does not reach such programs. Our holding is premised on the record before us and on the language, history and intent of Florida’s no-aid provision, which was originally enacted, in no small part, to prohibit the state from using its revenue to benefit religious schools. Our holding in this case resolves the case before us and leaves for another day, if need be, a decision on the constitutionality of any other government program or activity which involves a religious or sectarian institution.

Further, the appellants’ argument is pure speculation. There is nothing in this record on which the trial court or this court can reach any conclusions about the impact of the opinion in any programs other than the OSP — a program which un-disputedly involves the payment of state funds to religious schools. In the speculative impacts argued by these appellants, we have no way to determine whether state funds are paid to a religious institution or a non-profit, non-sectarian institution affiliated with a religion.

As we discuss above, nothing in the Florida no-aid provision would create a constitutional bar to state aid to a nonprofit institution that was not itself sectarian, even if the institution is affiliated with a religious order or religious organization. Unlike the sectarian schools receiving OSP vouchers, it has been observed that the health and social service programs and activities raised in the appellants’ arguments, although affiliated with a church or religion, are generally operated through non-profit organizations that are not sectarian or, at least, not pervasively sectarian institutions. See David Saperstein, Public Accountability and Faith Based Organizations: A Problem Best Avoided, 116 Harv. L.Rev. 1353, 1358-61 (2003); Jonathan Friedman, Note, Charitable Choice and the Establishment Clause, 5 Geo. J. on Fighting Poverty 103, 104 (1997); see, e.g., Bowen v. Kendrick, 487 U.S. 589, 610, 108 S.Ct. 2562, 2574-75, 101 L.Ed.2d 520 (1988)(the Adolescent Family Life Act did not violate the Establishment Clause because the law did not indicate that a “significant portion of the federal funds will be disbursed to pervasively sectarian institutions.”). The analysis of the application of the no-aid provision to other programs is for another time and another case involving its own unique facts.

VII. Florida’s No-Aid Provision Does Not Violate the Free Exercise Clause

Appellants argue that, if the no-aid provision prohibits the use of state funds to provide OSP vouchers in religious schools, the no-aid provision would discriminate against recipients of vouchers who prefer to attend religious schools in violation of the Free Exercise Clause of the First Amendment. In arguing that the application of the no-aid provision violates the Free Exercise clause, appellants rely upon the recent decision of the Ninth Circuit Court of Appeals in Davey v. Locke, 299 F.3d 748 (9th Cir.2002), reversed sub nom Locke v. Davey, 124 S.Ct. at 1307. In view of the recent decision of the United States Supreme Court reversing the judgment of the Ninth Circuit in Locke, we hold that Florida’s no-aid provision does not violate the Free Exercise Clause.

In Locke, a college student challenged, as violative of the Free Exercise clause of the First Amendment, a Washington statute that denied a state-funded scholarship to qualified students solely because the student-recipient sought to pursue a degree in theology. The Washington statute was consistent with the no-aid provision in the Washington Constitution. The district court granted summary judgment in favor of the state. In reversing, the Ninth Circuit found that the statute lacked neutrality, implicated the free exercise interests articulated in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), and required strict scrutiny review. Locke, 299 F.3d at 757-58. The Ninth Circuit held that the “policy denying [the scholarship] to a student otherwise qualified for it according to objective criteria solely because the student decides to pursue a degree in theology from a religious perspective infringes his right to the free exercise of his religion.” Id. at 760. Although the court recognized Washington’s “indisputably strong interest in not appropriating or applying money to religious instruction as mandated by its constitution,” id. at 759, it found that the state’s interest was not compelling. Id. at 760.

In reversing, the Supreme Court held that the denial of funding for religious institutions pursuant to Article I, section 11 of the Washington Constitution was not violative of the Free Exercise Clause. Locke. The Court described the constitutional issue before it to be “whether Washington, pursuant to its own constitution, which has been authoritatively interpreted as prohibiting even ind