BUSH v. HOLMES

BENTON, J., concurring.

This is the second appearance in this court of these cases, consolidated below and given Second Circuit Case No. CV 99-3370. On the prior appeal, Bush v. Holmes, 767 So.2d 668, 675 (Fla. 1st DCA 2000), a panel of this court reversed a circuit court judgment that had ruled:

Section 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.

Holmes v. Bush, No. CV 99-3370, 2000 WL 526364, at * 8 (Fla.Cir.Ct. Mar. 14, 2000). Under the circuit court's initial judgment, whether or not a private school has any religious affiliation or mission is immaterial. The critical point, under the trial court's initial view, was that a private school is not a component of "a uniform . . . system of free public schools." Art. IX, § 1, Fla. Const.

The parties argued the question whether Article IX, section 1 rendered section 229.0537 unconstitutional on the prior appeal. While the point was not (redundantly) reargued on the present appeal (taken, after all, in the same case), this sensible efficiency does not preclude affirming today on grounds that take into account that using public moneys for private school tuition payments does not discharge the constitutionally imposed "paramount duty" to provide "by law for a uniform, . . . safe, secure, and high quality system of free public schools." Art. IX, § 1, Fla. Const.

Even where a trial court has relied on another rationale altogether, an appeals court may affirm under the "tipsy coachman" doctrine, which requires appeals courts to affirm correct results on grounds other than those erroneously stated by the trial court. "The key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court." See Robertson v. State, 829 So.2d 901, 906-07 (Fla. 2002). Here the Article IX, section 1 claim was initially the focus of litigation in the trial court, and a record deemed adequate in the prior appeal was made in the proceedings below.

Although Article IX, section 1 also addresses "institutions of higher learning" (state universities) and "other public education programs that the needs of the people may require," which include junior college education, adult education, vocational education, and possibly exceptional student education, see generally Scavella v. Sch. Bd. of Dade County, 363 So.2d 1095, 1098-99 (Fla. 1978), the portion of the provision pertinent here provides:

It is . . . a paramount duty of the state to make adequate provision for education. . . . Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education. . . .

Art. IX, § 1, Fla. Const. By this stage of the proceedings, the challengers have eschewed reliance on Article IX, section 6 as an independent ground for invalidating the statute. But Article IX, section 1 should be read in light of Article IX, section 6, which provides:

State school fund. — The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools.

It is against this backdrop that the court is asked to declare that our constitution condones funding of private schools (whether or not sectarian) to compete with public schools, rather than devoting such school funding to improvement of the public schools. See Bush v. Holmes, 767 So.2d at 676 ("[I]n establishing the OSP, the Legislature recognized that some public schools may not perform at an acceptable level, [so] the Legislature attempted to improve those schools by raising expectations for and creating competition among schools.").

In the initial trial court judgment, Judge L. Ralph Smith, Jr., set out the rule of construction that he gleaned from Florida Supreme Court precedent as what should govern in construing Article IX, section 1 of the Florida Constitution, as follows:

The Florida Supreme Court has long held that "[w]hen a constitution directs how a thing shall be done, that is in effect a prohibition to its being done in any other way." State ex rel. Murphy v. Barnes, 24 Fla. 29, 32, 3 So. 433, 434 (1888). The Court has reaffirmed that canon of construction in any number of subsequent decisions, and its leading case on the subject explains as follows:

The principle is well established that, where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Even though the Constitution does not in terms prohibit the doing of a thing in another manner, the fact that it has prescribed the manner in which the thing shall be done is itself a prohibition against a different manner of doing it. Therefore, when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive, and it is beyond the power of the Legislature to enact a statute that would defeat the purpose of the constitutional provision.

Weinberger v. Board of Public Instruction, 93 Fla. 470, 478-79, 112 So. 253, 256 (1927) (emphasis added; citations omitted). See also State ex rel. Church v. Yeats, 74 Fla. 509, 521-22, 77 So. 262, 263 (1917); State ex rel. Ellars v. Board of County Comm'rs, 147 Fla. 278, 282, 3 So.2d 360, 362 (1941); In re Investigation of a Circuit Judge, 93 So.2d 601, 606 (Fla. 1957); In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520, 523 (Fla. 1975); Sullivan v. Askew, 348 So.2d 312, 315 (Fla. 1977).

Article IX, section 1 directs that it is a "paramount duty of the state to make adequate provision for the education of all children residing within its borders." But the Constitution also prescribes how the State is to carry out this education mandate. The sentence that imposes on the State the duty to make "adequate provision" for the education of Florida children is followed immediately by the requirement — which can only be read as an instruction on the manner in which the State is to fulfill that duty — that such adequate provision "shall be made" through "a uniform, efficient, safe, secure, and high quality system of free public schools . . ." (emphasis added).

Holmes v. Bush, 2000 WL 526364, at *3. Under this view, "very nearly everything . . . in a state constitution operates as a restriction on the legislature, for . . . commands . . . directed to . . . government . . . will operate to invalidate inconsistent legislation." Frank P. Grad, The State Constitution: Its Function and Form for Our Time, 54 Va. L.Rev. 928, 964-65 (1968).

Our supreme court has shown great flexibility in applying the law of the case doctrine, see Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 106 (Fla. 2001) ("Moreover, even as to those issues actually decided, the law of the case doctrine is more flexible than res judicata in that it also provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a `manifest injustice.'"), and has said:

This is the same suit and we have not lost jurisdiction thereof. Consequently, we have the power to correct any error which the Chancellor or we may have heretofore made in the progress of this litigation. There is no question of res adjudicata because this is the same, not a new and different, suit. However this Court, among others, has gone so far as to hold that it will not invoke the doctrine of res adjudicata if to do so would work injustice. The propriety of such ruling can not be questioned when one reflects upon the fact that the primary purpose for which our courts were created is to administer justice. In the case of Wallace v. Luxmoore, 156 Fla. 725, 24 So.2d 302, 304, we said:

"Stare decisis and res adjudicata are perfectly sound doctrines, approved by this court, but they are governed by well-settled principles and when factual situations arise that to apply them would defeat justice we will apply a different rule. Social and economic complexes must compel the extension of legal formulas and the approval of new precedents when shown to be necessary to administer justice. In a democracy the administration of justice is the primary concern of the State and when this cannot be done effectively by adhering to old precedents they should be modified or discarded. Blind adherence to them gets us nowhere."

A Court should have less hesitancy in changing "the law of the case" before losing jurisdiction than it would have in refusing to apply the doctrine of res adjudicata when all the requisites thereof are present. We may change "the law of the case" at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice. In such a situation a court of justice should never adopt a pertinacious attitude.

Beverly Beach Props., Inc. v. Nelson, 68 So.2d 604, 607-08 (Fla. 1953). See also U.S. v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982); Parker v. State, 873 So.2d 270, 278 (Fla. 2004); State v. Owen, 696 So.2d 715, 720 (Fla. 1997); Strazzulla v. Hendrick, 177 So.2d 1, 4-5 (Fla. 1965); State v. LoChiatto, 381 So.2d 245, 247 (Fla. 4th DCA 1979).

Even assuming that, when the panel reversed on the first appeal, it established the law of the case for subsequent panels of this court, see State v. McBride, 848 So.2d 287, 289-90 (Fla. 2003) (stating that the law of the case "doctrine requires that `questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.' Florida Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001) (emphasis added)"), the initial panel decision did not bind the en banc court, which did not decide anything on the first appeal.

In precisely analogous circumstances, at least three federal circuits have held that the en banc court is no more bound by the more remote panel decision than by the more recent panel decision.

The law of the case doctrine does not, as the Army suggests, prevent us from reconsidering the issues raised in Watkins I. See, e.g., Shimman v. International Union of Operating Engineers, Local 18, 744 F.2d 1226, 1229 n. 3 (6th Cir. 1984) (en banc) ("The law of the case doctrine . . . does not impair the power of an en banc court to overrule any panel decision."), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985); Van Gemert v. Boeing Co., 590 F.2d 433, 436-37 n. 9 (2d Cir. 1978) (en banc) (law of the case doctrine cannot immunize panel decisions from review by the court en banc), aff'd, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); cf. United States v. Mills, 810 F.2d 907, 909 (9th Cir. 1987) (stating that law of the case is a discretionary doctrine and declining to apply the doctrine), cert. denied, 484 U.S. 832, 108 S.Ct. 107, 98 L.Ed.2d 67 (1987).

Watkins v. U.S. Army, 875 F.2d 699, 704 n. 8 (9th Cir. 1989). The law of the case doctrine does not preclude consideration of the rationale of the initial judgment declaring section 229.0537 unconstitutional.

"When called upon to decide matters of fundamental rights, Florida's state courts are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein." Traylor v. State, 596 So.2d 957, 962 (Fla. 1992). "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim." Sterling v. Cupp, 290 Or. 611, 625 P.2d 123, 126 (1981). Surely Article IX, section 1 is among the "phrases and clauses" to which "independent legal import" should be given in the present case. Nor can it be immaterial that the only circumstances in which section 229.0537 (presupposing "failing" schools) operates are antithetical to and forbidden by Article IX, section 1 (requiring that a "high quality system of free public schools" be provided).

While the majority opinion does rest on a provision of the Florida Constitution — Article I, section 3 — we have recognized an overlap between that provision and the Establishment Clause of the First Amendment. See Silver Rose Entm't, Inc. v. Clay County, 646 So.2d 246, 251 (Fla. 1st DCA 1994) ("These three [federal constitutional] issues must also be addressed in deciding the Florida constitutional question."). The dissenting opinion argues, moreover, that the ground on which the majority opinion rests requires decision of another federal constitutional question under the Free Exercise Clause. Affirming on the basis of Article IX, section 1 would avoid even the possibility of having to decide these federal constitutional claims. See generally Robert F. Williams, State Constitutional Law 332-48 (3d ed. 1999) ("The Sequence of Constitutional Arguments").

In sum, Article IX, section 1 is an appropriate consideration in today's affirmance of the second judgment entered (by a second trial judge), again finding section 229.0537, Florida Statutes, unconstitutional, albeit on other grounds. See Holmes v. Bush, 2002 WL 1809079, at *3 (Fla.Cir.Ct. Aug. 5, 2002) ("declar[ing] that Florida Statute § 229.0537 is unconstitutional" because it "provides for revenue to be taken from the public treasury and disbursed indirectly in aid of sectarian institutions [and so] impermissi[b]ly violates Article I, § 3 of the Florida Constitution" and "enjoin[ing] . . . implement[ation of] the Opportunity Scholarship Program for the 2002-2003 school year and thereafter").

ALLEN, DAVIS, PADOVANO, and BROWNING, JJ., concur.

WOLF, C.J., Concurring in part and Dissenting in part.

Both sides in this litigation urge us to decide this case based on a facial challenge to the constitutionality of the Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999). The parties also urge an all-or-nothing approach in determining the constitutionality of programs that allow public dollars to ultimately be paid to sectarian institutions. Appellees assert that any program that permits public funds to be utilized in sectarian institutions should be declared unconstitutional pursuant to article I, section 3, Florida Constitution. They take this position notwithstanding the purpose of the program, the extent of public funding, whether the level of funding substantially exceeds the cost of the public benefit, or the means by which the public dollars reach the sectarian institution.

Now found at section 1002.38, Florida Statutes (2003).

Appellants assert that article I, section 3 of the Florida Constitution should be interpreted in accordance with the establishment clause of the United States Constitution and that any program that provides parents with a choice of whether to utilize vouchers in a sectarian institution is constitutional pursuant to the dictates of Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002).

The parties may have taken these inflexible positions for philosophical, political, or strategic reasons. These reasons are immaterial to this court and to consideration of this case. Because the positions taken by both parties are unsupported by prior case law and result in tortured interpretations of the Florida Constitution, I would decline to adopt the position of either party.

Instead, I would determine that

1) the trial court erred in holding that section 229.0537, Florida Statutes (1999), facially violated 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";

2) where the Legislature has identified a valid non-sectarian purpose totally unrelated to the aid of religious institutions, any enforcement of the provisions of article I, section 3, should involve an as applied analysis of whether a specific expenditure actually involves aid to a sectarian institution or merely involves an acceptable method of providing necessary services; and

3) article I, section 3 of the Florida Constitution is both broader in its intent and more restrictive concerning the expenditure of public funds than the First Amendment of the United States Constitution.

In addition, even if this court determines that the Opportunity Scholarship Program is unconstitutional as applied to sectarian institutions, as a matter of deference to the legislative intent expressed in section 229.0537(1), Florida Statutes (1999), "to provide enhanced opportunity for students in the state to gain the knowledge and skills necessary for post secondary education," I would strike only that portion of the program that allows funds to be provided for sectarian institutions.

The trial court's summary judgment determining the facial constitutionality of the Opportunity Scholarship Program is based on the following two undisputed facts:

1. Opportunity scholarships are funded from state revenue.

2. Some parents use the opportunity scholarships to educate their children at sectarian institutions.

The trial court's determination regarding whether state revenue is being utilized in aid of any sectarian institution pursuant to article I, section 3 specifically ignores all issues related to legislative purpose, extent of the funding, and the public benefit involved. The holding of the trial court determines that these factors are not relevant. The supreme court has properly rejected this all-or-nothing approach in City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla. 1983), a case that is remarkably similar to the instant case.

In Gidman, a municipal expenditure was challenged on the grounds that it violated section 7.87 of the Boca Raton City Charter, which was at least as restrictive, if not more restrictive, than article I, section 3 of the Florida Constitution concerning the expenditure of public funds. That section reads, "No city funds shall be expended in any manner whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization." Id. at 1279. A municipal charter is the constitution of a city and effectively limits the legislative power of a city in the same manner the state constitution limits the power of the Legislature. See Gontz v. Cooper City, 228 So.2d 913 (Fla. 4th DCA 1970). The supreme court, however, held that the City of Boca Raton's expenditure of public funds for a day care center run by a non-profit organization did not violate the charter provision. Gidman, 440 So.2d at 1282. The court rejected the argument that the city charter provision was a total bar to spending city funds at the charitable institution and determined in that particular situation that no violation had occurred:

See also, State v. Sarasota County, 549 So.2d 659 (Fla. 1989) (determining charter provision acted as a limitation on county issuing bonds without referendum); City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla. 1972) (holding that a municipality's charter, not unlike the state constitution, is the paramount governing instrument of the municipality and the fundamental law of the citizens who are served by the municipality).

The center has no power to expend these funds for any purpose other than childcare services for the Boca Raton community. The beneficiaries of the city's contributions are the disadvantaged children. Any "benefit" received by the charitable organization itself is insignificant and cannot support a reasonable argument that this is the quality or quantity of benefit intended to be proscribed.

Id. at 1281-1282. The court further stated that it would be an unreasonable or ridiculous conclusion to read the charter provision as a total prohibition against the city contracting for these types of services. Id. at 1281. Similarly, in Southside Estates Baptist Church v. Board of Trustees, School Tax District No. I, In and For Duval County, 115 So.2d 697 (Fla. 1959), the court rejected an all-or-nothing approach as leading to an absurd result and determined that the court must look at the quantum of benefit received by the religious institution to determine whether the Florida Constitution has been violated.

Judge Van Nortwick dismisses Gidman because that case involved an analysis of the home rule power of the municipality. As demonstrated by this quote, the case not only involved an analysis of home rule, but also the application of the city charter provision.

As the court determined in Gidman, the appropriate analysis must address who is the real beneficiary on a case by case basis rather than reading the constitutional language as a total prohibition. Since it cannot be shown that in all cases where state funds reach sectarian institutions the constitution will be violated, the trial court erred in upholding the facial challenge. See Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004).

While facial challenges are allowed in cases involving first amendment freedom of speech issues, this concept should not be expanded to this type of case.

In the majority opinion, Judge Van Nortwick accepts the total prohibition approach rejected by the supreme court in Gidman. The majority opinion also upholds the remedy of the trial court which is to strike the entire statute rather than just limiting the statute's application to non-sectarian institutions. In order to avoid catastrophic and absurd results which would occur if this inflexible approach was applied to areas other than public schools, the majority is forced to argue that the opinion is limited to public school funding and article I, section 3 may not apply to other areas receiving public funding. As pointed out in Judge Polston's dissenting opinion, the language of the Florida Constitution itself does not support this interpretation.

While I disagree with portions of both Judge Van Nortwick's majority opinion and Judge Polston's dissent, I commend them for their thorough scholarly handling of the subject matter.

The explicit language in article I, section 3 is clear and unambiguous. Public revenue is not to be used to aid any sectarian institution. There is no language limiting this provision to schools. The first precept of constitutional interpretation is whether that language is clear and unambiguous; if so, it should be interpreted as written. Florida League of Cities v. Smith, 607 So.2d 397, 400 (Fla. 1992) ("[T]he law is settled that when constitutional language is precise, its exact letter must be enforced and extrinsic guides to construction are not allowed to defeat the plain language."); 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."); City of St. Petersburg v. Briley, Wild Assoc., Inc., 239 So.2d 817, 822 (Fla. 1970) ("If the language is clear and not entirely unreasonable or illogical in its operation we have no power to go outside the bounds of the constitutional provision in search of excuses to give a different meaning to words used therein.").

I also, however, cannot accept the all-or-nothing approach urged upon us by appellants and argued in Judge Polston's dissent. I concur fully with Judge Van Nortwick's analysis that the language in article 1, section 3, of the Florida Constitution, concerning the "no-aid" provision, must be interpreted as imposing greater restrictions on state aid to religious schools than does the Establishment Clause in the United States Constitution, which contains no specific language addressing the provision of such aid. See Burnsed v. Seaboard Coastline R.R. Co., 290 So.2d 13 (Fla. 1974) (noting construction of the constitution is favored which gives effect to every clause and part thereof). Thus, I would also determine that the mere fact that the vouchers are given to parents who have a choice whether to utilize them in sectarian or non-sectarian schools does not shield such expenditures from a case by case determination of its validity under article I, section 3.

It is always easiest to draw bright line rules. We should avoid this temptation in navigating the critical area between the constitutional concepts of free exercise and the establishment of religion. See Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004). A case by case analysis avoids having to make a choice between unfettered discretion to spend public dollars at sectarian institutions and prohibiting any public dollars from ever being expended at a sectarian institution without weighing the public benefit against any substantial benefit to the institution.

I believe the majority erred in striking the entire scholarship program. While the issue of severability was not raised by the parties, I feel we should address this issue in order to uphold the intent of the Legislature. As explained in Ray v. Mortham, 742 So.2d 1276 (Fla. 1999), the judiciary has an inherent power and duty to uphold the constitutionality of legislation whenever possible.

Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions. This doctrine is derived from the respect of the judiciary for the separation of powers, and is designed to show great deference to the legislative prerogative to enact laws.

The severability analysis answers the question of whether the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail. Stated simply: The severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent.

Id. at 1280 (citations and quotations omitted).

The court is also not limited in its remedies for curing an unconstitutional provision simply because the legislation may or may not contain a severability clause. The absence of a severability clause does not prevent the court from exercising its inherent power to preserve the constitutionality of an act by eliminating invalid clauses if it is possible to do so. See Cramp v. Bd. of Public Instruction of Orange County, 137 So.2d 828 (Fla. 1962).

Such a clause allows the invalidation of unconstitutional provisions of a statute, while allowing the independent and constitutional provisions to remain valid. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985).

Cramp, the leading case on severability, provides the following four-part test:

The rule is well established that the unconstitutionality of a portion of a statute will not necessarily condemn the entire act. When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.

Id. at 830. See, e.g., Schmitt v. State, 590 So.2d 404, 414-415 (Fla. 1991) (finding overbroad definition in statute prohibiting sexual performance by child was severable); Knealing v. Puleo, 675 So.2d 593 (Fla. 1996) (finding provision of mediation statute permitting offer of settlement to be made at any time after mediator declares impasse was unconstitutional, but holding unconstitutional provision was severable from remainder of statute).

Applying the Cramp test we must first determine whether the phrase "may be sectarian or" can be separated from the remaining valid provisions of the statute. Without this phrase subsection 4 would read:

(4) Private school eligibility. — To be eligible to participate in the Opportunity Scholarship Program, a private school must be a Florida private school, nonsectarian, and must [comply with subsections (a) through (k)].

Because the section can be read without the "may be sectarian or" language, it is severable.

Second, the legislative purpose expressed in the remaining provisions of the statute can still be accomplished without the phrase "may be sectarian or." The Legislature does not mention religion or parental choice for religious schools as a purpose of the program.

(1) Findings and intent. — The purpose of this section is to provide enhanced opportunity for students in this state to gain the knowledge and skills necessary for postsecondary education, a technical education, or the world of work. . . . The Legislature shall make available opportunity scholarships in order to give parents and guardians the opportunity for their 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 as provided in paragraph (6)(a). Eligibility of a private school shall include the control and accountability requirements that, coupled with the exercise of parental choice, are reasonably necessary to secure the educational public purpose, as delineated in subsection (4).

§ 229.0537, Fla. Stat. (1999).

Additional language in the statute clearly establishes the intent of the Legislature to provide funds to only those schools who select students on a "religious-neutral basis" and do not "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)(e) and (j), Fla. Stat. (1999).

As to parts three and four of the test enumerated in Cramp, based on the legislative purpose to aid students, it is likely that the Legislature would have pursued this statute without the objectionable part, and the remainder of the act is consistent with goals expressed by the Legislature. Therefore, we should refrain from declaring the entire act to be unconstitutional.

Part three of the test, analyzing the separability of the good and bad features, is extremely subjective; at the very least the case should be remanded to the trial court to make this factual determination.

As a matter of deference to the Legislature, if the act is ultimately determined to be facially unconstitutional, I would not strike the entire act but only limit its application.

POLSTON, J., dissenting.

Appellants argue that the trial court erroneously ruled in its final summary judgment that the Florida Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999), violates Article I, § 3 of the Florida Constitution and is therefore unconstitutional. I agree with appellants that the Opportunity Scholarship Program is constitutional and would reverse.

This constitutional issue is reviewed de novo. See Enter. Leasing Co. S. Cent. v. Hughes, 833 So.2d 832, 834 (Fla. 1st DCA 2002). When a trial court has declared a state law unconstitutional, the appellate court must begin the review process with the presumption that the law is constitutional. See Dep't of Ins. v. Keys Title Abstract Co., 741 So.2d 599, 601 (Fla. 1st DCA 1999). Significantly, the party challenging the law has the burden of showing beyond a reasonable doubt that the law is unconstitutional. See A.B.A. Indus., Inc. v. City of Pinellas Park, 366 So.2d 761, 763 (Fla. 1979) (ruling that an act of the Legislature "will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt"); Bush v. Holmes, 767 So.2d 668, 673 (Fla. 1st DCA 2000) (ruling that "[w]hen a legislative enactment is challenged the court should be liberal in its interpretation; every doubt should be resolved in favor of the constitutionality of the law, and the law should not be held invalid unless clearly unconstitutional beyond a reasonable doubt," quoting Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 882 (1944)); Medina v. Gulf Coast Linen Servs., 825 So.2d 1018, 1020 (Fla. 1st DCA 2002) (same). Contrary to the majority's ruling, the program is not clearly unconstitutional beyond a reasonable doubt.

The majority opinion is seriously flawed because it (i) fails to distinguish controlling Florida Supreme Court precedent, (ii) erroneously rules that the choice by the parents and guardians of the children benefitting from the program has no effect on the analysis of Article I, § 3, (iii) ignores the federal constitutional Establishment Clause analysis addressing indirect aid, thereby incorrectly ruling that the analysis of Article I § 3 is different from the federal constitution, and (iv) discriminates against religion in violation of the United States and Florida Free Exercise Clauses.

I disagree with the majority because I am of the view that the Establishment Clause of the Florida Constitution, which includes the no-aid language in Article I, § 3, as interpreted by the Florida Supreme Court, means the same as the Establishment Clause in the United States Constitution, as interpreted by the United States Supreme Court.

Therefore, I respectfully dissent.

I. SCHOOLS ARE NOT DIFFERENT UNDER ART. I, § 3

Appellant Attorney General Robert A. Butterworth argued that a general application of the trial court's construction of Article I, § 3, "would prohibit any religious institution from acting as a government service provider or participating in secular general welfare programs where there is only an incidental benefit to religion." There is no distinction between this Opportunity Scholarship Program and the state Medicaid program that funds religiously affiliated or operated health care institutions providing free or subsidized medical care (e.g., St. Mary's Hospital in West Palm Beach and Baptist Medical Center in Jacksonville). Other examples are legislative programs providing public funds to any public or private person or organization for preservation of historic structures, rent paid to churches for use of their facilities as polling places, and government subsidized pre-K or childcare programs operated by churches or faith-based organizations.

The Attorney General identified various legislative programs, in addition to Opportunity Scholarships, that eligible persons may utilize at private educational institutions across Florida, including those that are religiously affiliated or operated: Florida Bright Futures Scholarship Program, John M. McKay Scholarships for Students with Disabilities Program, Florida Private Student Assistance Grant Program, William L. Boyd, IV, Florida Resident Access Grants, Florida Partnership for School Readiness, Florida Postsecondary Student Assistance Grant Program, Jose Marti Scholarship Challenge Grant Program, Mary McLeod Bethune Scholarship Program, Critical Teacher Shortage Student Loan Forgiveness Program, and the Minority Teacher Education Scholars Program. No fewer than 23 religiously affiliated or operated private four-year universities in Florida are eligible to receive Bright Futures scholarship funds.

According to the Attorney General, the legislature has programs that provide funds directly to religiously affiliated educational institutions, stating that "in 2002, the Historically Black College and University Library Improvement Program provide[d] $8,974,038 in direct aid for library development to three religiously affiliated or operated private colleges: Bethune-Cookman College, Edward Waters College, and Florida Memorial College."

The majority states that its holding is premised on the history and intent of Florida's no-aid provision, as originally enacted, to prohibit the state from using its revenue to benefit religious schools, and then cautions that the holding "should not in any way be read as a comment on the constitutionality of any other government program or activity which involves a religious or sectarian institution." In other words, the majority says that schools are different under Article I, § 3. However, there is nothing in the language of Article I, § 3 indicating that it applies only to schools.

Moreover, there is no constitutional history indicating that it was the original intent of the drafters that Article I, § 3 apply only to schools. There is no record of the Florida 1885 Constitution Convention that adopted the relevant language. Because the constitutional history is completely silent on intent, the majority is correct in its characterization of the history of the no-aid provision as "unambiguous." It unambiguously provides no help in construing the language of Article I, § 3. We should not assume intent without more than we have before us.

The majority discusses at length the anti-Catholic bigotry associated with the "development of Blaine-era no-aid provisions in state constitutions," but then simply concludes that there is nothing in the constitutional history to indicate a bigoted purpose. The majority is selectively picking and choosing from so-called history to avoid the appearance of giving effect to anti-Catholic bigoted language. I agree with the majority that the history of Florida's Constitution is silent regarding an anti-Catholic bigotry. But it is also silent on any other intended meaning, contrary to the majority's assertion.

The majority further errs by relying on the legislature's failure to adopt a proposed change to the Constitution as evidence of intent (relating to the 1968 Constitution). See Duer v. Moore, 765 So.2d 743, 745 (Fla. 1st DCA 2000) ("Nor do we rely in any way on the reported failure, in a subsequent legislative session, of an effort to amend section 944.275(4)(b) to require DOC to treat `indeterminate offense dates' as dates certain. See generally United States v. Mitchell, 39 F.3d 465, 469 n. 6 (4th Cir. 1994) (`Silence is an unreliable source of legislative intent.'); Fleeman v. Case, 342 So.2d 815, 817 (Fla. 1976) (`We decline to divine legislative intent . . . from one attempt to amend . . . [even a] proposed law in one chamber of the Legislature [despite the proposed law's enactment that session].'); Ellsworth v. Ins. Co. of North America, 508 So.2d 395, 398 (Fla. 1st DCA 1987) (`the effect of the . . . amendments is not determinative of legislative intent with respect to the [original enactment]'))." Therefore, the history of Florida's Constitution does not help in this court's legal analysis of Article I, § 3.

The majority's caution that the holding "should not in any way be read as a comment on the constitutionality of any other government program or activity which involves a religious or sectarian institution," is only to ignore the problem. Why wouldn't the holding be applied to other programs? There is no meaningful difference. These other programs could be successfully challenged under the majority opinion. Attempting to distinguish the programs, the majority indicates that the social service programs and activities raised in appellants' arguments, "although operated by a church or religion, are generally operated through non-profit subsidiaries that are not sectarian, or, at least, not pervasively sectarian institutions." Even if accepted as true, I do not understand how exercising control through a subsidiary should make a difference. Would the majority rule differently if the sectarian institutions operating schools were to establish corporations that they wholly own or control, thereby escaping the reach of the no-aid language under this reasoning? Or, is it acceptable to be a little religious under the constitution, but not so much as to be pervasive? These form over substance arguments are not sound constitutional analysis.

Schools are not different. The constitutionality of this Opportunity Scholarship Program should be treated the same as other programs under Article I, § 3. I agree with the majority's certified question to the Florida Supreme Court because this is a matter of great public importance to a significant number of programs.

II. BACKGROUND OF THE OPPORTUNITY SCHOLARSHIP PROGRAM

Recognizing that children should have an "opportunity to obtain a high-quality education in this state," in 1999, the Florida Legislature implemented the Opportunity Scholarship Program. Ch. 99-398, at 4273, § 2 at 4275-80, Laws of Fla. The Legislature stated:

The purpose of this section is to provide enhanced opportunity for students in this state to gain the knowledge and skills necessary for postsecondary education, a technical education, or the world of work. The Legislature recognizes that the voters of the State of Florida, in the November 1998 general election, amended s. 1, Art. IX of the Florida Constitution so as to make education a paramount duty of the state. 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 years in a 4-year period. The Legislature shall make available opportunity scholarships in order to give parents and guardians the opportunity for their 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 as provided in paragraph (6)(a). Eligibility of a private school shall include the control and accountability requirements that, coupled with the exercise of parental choice, are reasonably necessary to secure the educational public purpose, as delineated in subsection (4).

Id. at 4275-76 (codified as § 229.0537(1), Fla. Stat. (1999)) (emphasis added).

The Legislature repealed section 229.0537 in 2002, see Ch. 2002-387, § 1058, at 4152, Laws of Fla., and reenacted it into section 1002.38, Ch. 2002-387, § 103, at 3304, Laws of Fla.

School districts with a failing school are required to notify the parent or guardian of the students enrolled in or assigned to the failing school and offer the parent or guardian an opportunity to enroll the student in public school within the district that is performing at an acceptable level. Id. at 4277 (codified as § 229.0537(3)(a), Fla. Stat. (1999)). The school districts with a failing school must also notify the parent or guardian that he or she may choose to enroll the student in a higher-performing public school that has available space in an adjacent school district. Id. (codified as § 229.0537(3)(b), Fla. Stat. (1999)). If a student has spent the prior year in a failing public school, the student's parent or guardian may request and receive from the state an Opportunity Scholarship for the child to enroll in and attend a private school, sectarian or nonsectarian. Id. at 4276-77 (codified as § 229.0537(2) (4), Fla. Stat. (1999)).

The private schools participating in the Opportunity Scholarship Program 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." Id. at 4278 (codified as § 229.0537(4)(j), Fla. Stat. (1999)). For students attending private schools, payment "must be by individual warrant made payable to the student's parent or guardian and mailed by the Department of Education to the private school of the parent's or guardian's choice and the parent or guardian shall restrictively endorse the warrant to the private school." Id. at 4280 (codified as § 229.0537(6)(b), Fla. Stat. (1999)).

III. ART. I, § 3, FLA. CONST. PRECEDENT

Appellants argue that the trial court's final summary judgment must be reversed under controlling Florida precedent. I agree because the Florida Supreme Court has addressed and rejected similar challenges under Article I, § 3 of the Florida Constitution.

Koerner v. Borck

In Koerner v. Borck, 100 So.2d 398, 401 (Fla. 1958), the Florida Supreme Court considered the issue of whether Orange County, Florida, could "accept a devise of land for its use as a county park where the devise carries with it a perpetual easement to use the land and the lake adjacent thereto for baptismal purposes" consistent with the Establishment Clause of the First Amendment to the United States Constitution and Section 6 of the Declaration of Rights of the Florida Constitution. The Florida Supreme Court recognized that prohibiting baptisms in public waters would violate the United States Constitution because state power cannot be used to handicap religions any more than it can to favor them. Id. (citing Everson v. Bd. of Educ. of Ewing Township, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947)). The Florida Supreme Court also rejected the challenge under Section 6 of Florida's Constitution, stating:

In 1885, the relevant language in the Declaration of Rights, § 6, Fla. Const. stated: "Section 6; No preference shall be given by law to any church, sect or mode of worship and no money 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." (Emphasis added). There were no significant changes in this language when the Constitution was next revised in 1968 and as it currently exists. See Art. I, § 3, Fla. Const.; Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So.2d 256, 258-59 (Fla. 1970).

Nor is the Chancellor's decree amenable to the attack here made under Section 6 of the Declaration of Rights of the Florida Constitution, F.S.A., prohibiting the expenditure of public funds, directly or indirectly, in aid of any church, sect, religious denomination, or sectarian institution. Here, as in Fenske v. Coddington, supra, 57 So.2d 452, any improvement to the county-owned land will be made for the benefit of the people of the county and not for the church. This contention cannot, therefore, be sustained.

Id. at 402 (emphasis added). The majority's characterization of this ruling by the Florida Supreme Court as dicta is wrong. The devise to the county was challenged under both the federal and state constitutions, and the Court ruled on both in its holding. Contrary to the majority's attempt to distinguish the case as not involving state revenues for a sectarian institution, the donated property was revenue to the county, and its use for baptizing by members of the Downey Memorial Church was at issue.

"Revenue" of a government is a broad and general term applicable to collections and receipts from whatever source and in whatever manner. See Black's Law Dictionary 1185 (5th ed. 1979).

In this case, the trial court recognized in the final summary judgment that the purpose of the statute is to "enhance the educational opportunity of children caught in the snare of substandard schools," which is consistent with the Legislature's stated purpose "to provide enhanced opportunity for students in this state to gain the knowledge and skills necessary for postsecondary education, a technical education, or the world of work." Ch. 99-398, § 2 at 4275, Laws of Fla. (numbered as § 229.0537(1), Fla. Stat. (1999)).

Although in Koerner the church was allowed to conduct its baptisms on public property, the Florida Supreme Court held that the benefit accrued to the people of the county rather than the church. Likewise in this case, although the sectarian schools have additional students in their classrooms if chosen by their parents or guardians, the program is intended to benefit those students who would otherwise not receive a quality education. Therefore, appellees' contention that the Court's ruling was dicta and distinguishable cannot be sustained.

Southside Estates Baptist Church v. Board of Trustees

Shortly after the Koerner decision, the Florida Supreme Court in Southside Estates addressed whether a Florida public school can be used temporarily as a place of worship during non-school hours. Southside Estates Baptist Church v. Bd. of Trs., 115 So.2d 697 (Fla. 1959). In that case, the Board of Trustees, School Tax District No. 1, in and for Duval County, permitted several churches to temporarily use various school buildings during Sunday non-school hours pending construction of their church buildings. Id. at 698. The record did not show whether the churches paid rent, nor did it reflect any direct expense to the school trustees. Id.

The appellants contended that the use of the school building was "an indirect contribution of financial assistance to a church in violation of Section 6 of the Declaration of Rights of the Florida Constitution," arguing that "regardless of how small the amount of money might be, nevertheless, if anything of value can be traced from the public agency to the religious group, the Constitution has been thereby violated." Id. at 698-99. The Florida Supreme Court rejected this argument, stating that "[n]othing of substantial consequence is shown and we see no reason to burden this opinion with a discussion of trivia." Id. at 699-700. "[A]n incidental benefit to a religious group resulting from an appropriate use of public property is not violative of Section 6, of the Declaration of Rights of the Florida Constitution." Id. at 700.

Analyzing appellant's argument that any benefit to a religious group resulting from the use of public property "ipso facto constitutes an indirect contribution of public funds in violation of the cited section of the Florida Declaration of Rights," the Florida Supreme Court recognized that such a rule would prohibit religious services in university stadiums and public parks. Id."We think that when the rule is reduced to such absurd application its fallacies and weaknesses become obvious." Id.

The trial court in the instant case erroneously held that any benefit to a religious group resulting from the program ipso facto constitutes an indirect contribution of public funds in violation of Florida's Constitution — the same argument rejected by the Florida Supreme Court in Southside Estates. The majority's contention that Southside Estates is not on point is in error.

Johnson v. Presbyterian Homes of Synod of Florida, Inc.

In Johnson, the church-affiliated owner of a home for the aged brought actions against the city and county contesting assessment of real property taxes, arguing that the property was exempt from taxes pursuant to section 192.06(14), Florida Statutes (1967). Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So.2d 256, 258 (Fla. 1970). The defendants contended that the exemption statute was unconstitutional as applied to the facts of the case in that it attempted to grant tax exemptions to homes for the aged owned by religious organizations and operated primarily for religious purposes. Id.

The Florida Supreme Court noted that the "atmosphere of the home is religious" and the "spiritual needs of the residents are provided for" with "`Christian care' with Bible instruction and study." Id. The defendants argued that the statutory tax exemption violated Section 6 of the Florida Constitution and the Establishment Clause of the United States Constitution. Id. at 258-59. The Florida Supreme Court stated:

It is apparent that Fla. Stat. (1967), s 192.06(14), F.S.A., was enacted to promote the general welfare through encouraging the establishment of homes for the aged and not to favor religion, since it is not limited to homes for the aged maintained by religious groups, but applies to any which are owned and operated in compliance with the terms of the statute by Florida corporations not for profit. Under the circumstances, any benefit received by religious denominations is merely incidental to the achievement of a public purpose.

. . .

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 benefitted.

Id. at 261 (emphasis added).

The Florida Supreme Court recognized that the tax exemption was not only available to homes for the aged owned by religious organizations, but also to any bona fide homes for the aged that were duly licensed, owned, and operated in compliance with the terms of the statute by Florida not-for-profit corporations. Id."To exempt all homes complying with the statute, except church-related homes, would indeed be discriminatory and inconsistent with the obvious intent and secular aims of the Legislature. The fact that the home for the aged may be owned by a religious denomination does not exclude the benefits of Fla. Stat. (1967) § 192.06(14), F.S.A." Id. at 262.

The scholarship program permits the parents or guardians to choose not only private sectarian schools, but also any qualifying public or private non-sectarian schools. " To exempt all [schools] complying with the statute, except church-related [schools], would indeed be discriminatory and inconsistent with the obvious intent and secular aims of the Legislature." Id. (emphasis added). As in Johnson, the fact that the private schools may be owned by a religious denomination does not exclude the benefits of the program for the children to obtain a quality education. The Florida Legislature acted to promote the general welfare of society by enacting the program apart from any religious considerations. Therefore, the program is valid, even though religious interests may be indirectly benefitted. Id. at 261.

The majority attempts to distinguish the instant case from Johnson because the statute in Johnson involves a tax exemption rather than a disbursement. The distinction between a benefit arising from a tax exemption and a payment from the state is one without a difference. For example, a taxpayer may get the same bottom-line benefit on an income tax return whether it is in the form of a tax exemption excluding income from the definition of gross income, whether it is an allowable deduction, a reduction in the rate of tax percentage computed on taxable income, a tax credit, or simply a payment from the government to the individual. In short, it does not matter what you call it if the resulting benefit is the same (otherwise, it is form over substance). Would the majority find a statute that provided a tax exemption only to religious organizations, but not other charitable organizations, constitutional under the no-aid language of the constitution or treat it the same as if there was a direct payment from the state? The treatment should be the same and the Opportunity Scholarship Program held constitutional under Johnson.

See Committee for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 789-91, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973) (treating system for income tax benefits the same under the Establishment Clause, regardless of whether they should be labeled a tax deduction, tax credit, or reimbursement through a grant; "the constitutionality of this hybrid benefit does not turn in any event on the label we accord it").

In Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), the United States Supreme Court held that a sales tax exemption benefitting only religious organizations was unconstitutional because the statute was not written broadly in a neutral manner as in Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). In its Establishment Clause analysis, the Court declined to make a distinction between tax exemptions and subsidies as suggested by the dissent in Texas Monthly, citing Walz. Texas Monthly, 489 U.S. at 13 n. 3, 14, 33-45, 109 S.Ct. 890 (Scalia, J. dissenting, with whom Rehnquist, C.J., and Kennedy, J., concurs). The Court stated that "[e]very tax exemption constitutes a subsidy that affects nonqualifying taxpayers, forcing them to become `indirect and vicarious "donors.'" Bob Jones University v. United States, 461 U.S. 574, 591, 103 S.Ct. 2017, 2028, 76 L.Ed.2d 157 (1983). See also Regan v. Taxation with Representation of Wash., 461 U.S. 540, 544, 103 S.Ct. 1997, 2000, 76 L.Ed.2d 129 (1983)." 489 U.S. at 14, 109 S.Ct. 890. For the same reasons, this court should decline to treat subsidies differently from exemptions. This statute is broadly written in a neutral manner.

Nohrr v. Brevard County Educational Facilities Authority

In Nohrr, the plaintiffs challenged the constitutionality of the Higher Educational Facilities Authorities Law, arguing that it permits the authorities to issue revenue bonds in order to aid religious schools, as well as secular schools, thereby violating the Establishment Clause of the United States Constitution and Article I, § 3 of the Florida Constitution. Nohrr v. Brevard County Educ. Facilities Auth., 247 So.2d 304, 307 (Fla. 1971). Stating that the law was enacted to promote the general welfare by "enabling institutions of higher education to provide facilities and structures sorely needed for the development of the intellectual and mental capacity of our youth," and citing Johnson and Walz, the Florida Supreme Court held that the law did not violate the United States and Florida Constitutions. Id.

As in Nohrr, appellees argue, and the trial court held, that because the legislation will benefit religious schools, as well as secular schools, it violates Article I, § 3 of the Florida Constitution. The Florida Supreme Court rejected this argument in Nohrr, stating that the law promoted the general welfare by developing our youth. Id. at 307 ("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."). Similarly, although religious schools may obtain additional students, this Opportunity Scholarship Program was enacted to promote the general welfare by providing quality educational opportunities for children and does not violate Article I, § 3 of the Florida Constitution.

City of Boca Raton v. Gidman

In City of Boca Raton, Boca Raton contracted with the Florida Department of Health and Rehabilitative Services to contribute matching state and federal funds to the Florence Fuller Child Development Center, a non-profit, educational child care center in Boca Raton. City of Boca Raton v. Gidman, 440 So.2d 1277, 1278 (Fla. 1983). The center provided "subsidized child care services including infant nursery care, pre-school and after school programs and summer programs for disadvantaged children." Id. The respondents brought suit against Boca Raton to enjoin its contribution to the center on the basis that it violated Section 7.07 of the city's charter, stating: "No city funds shall be expended in any manner whatsoever to accrue either directly or indirectly to the benefit of any religious, charitable, benevolent, civic or service organization." Id. at 1279 (emphasis added).

The Florida Supreme Court held that the money paid by Boca Raton for the operation of a non-profit child care center benefitted disadvantaged children rather than the receiving charitable organization, rejecting the contention that this expenditure was prohibited by the city's charter. Id. at 1282. The same analysis should be applied to this case. The Opportunity Scholarship Program benefits children disadvantaged by failing schools rather than the receiving religious organization.

IV. CONSTITUTIONAL BECAUSE PARENTS HAVE A CHOICE

Appellees admit that the challenged program does not violate the United States Constitution because of the United States Supreme Court's recent ruling in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). Zelman was decided while appellees' underlying case was pending and resulted in their voluntary dismissal of their federal constitutional challenge. In Zelman, the Court held that a very similar Ohio program designed to give educational choices to families with children in failing schools did not violate the Establishment Clause of the United States Constitution. 536 U.S. at 643-44, 122 S.Ct. 2460. Private schools, including religious schools, could participate in the program, along with adjacent public schools. Id. Exactly the same as in Florida, "[i]f parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school." Id. at 646, 122 S.Ct. 2460.

Addressing whether the Ohio program has the forbidden effect under the Establishment Clause of advancing or inhibiting religion, the Court stated:

[O]ur decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools [citations omitted], and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, 117 S.Ct. 1997, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges [citing Mueller, Witters, and Zobrest].

. . .

Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.

Id. at 649-52, 122 S.Ct. 2460. The Court then held that the challenged Ohio program is a program of true private choice and, therefore, constitutional. Id. at 653, 122 S.Ct. 2460. The focus is on "neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools." Id. at 652, 122 S.Ct. 2460. This analysis for the federal Establishment Clause is the same as discussed earlier by the various cases decided by the Florida Supreme Court for Article I, § 3.

There are no meaningful differences between the Ohio program and Florida's program. Appellees state that Florida's program does not violate the United States Constitution, and accordingly dismissed their related claim after Zelman was decided. It follows that, in accordance with Zelman, Florida's program is neutral and provides parents and guardians a true private choice. The program provides parents and guardians access to public and private schools, sectarian and non-sectarian. Therefore, the program is neutral to religion. The program also explicitly provides parents and guardians the choice to let their children stay in their current school, attend other public schools in the same or adjoining school districts, or attend private schools, sectarian or non-sectarian. As in Zelman, the challenged Florida program is a program of true private choice and, therefore, constitutional.

For students attending private schools, payment "must be by individual warrant made payable to the student's parent or guardian and mailed by the Department of Education to the private school of the parent's or guardian's choice and the parent or guardian shall restrictively endorse the warrant to the private school." Ch. 99-398, § 2 at 4280, Laws of Fla. The trial court, citing a 1979 case from Alaska, erroneously held that this provision amounts to a "colossal triumph of form over substance," and causes the program to violate Article I, § 3 of the Florida Constitution.

Sheldon Jackson Coll. v. State, 599 P.2d 127 (Alaska 1979). The program at issue in Alaska does not resemble Florida's program. Instead, the program allowed students to receive state grants for the tuition amounts charged by private colleges that exceeded the tuition of public colleges in the same area.

This same restrictive endorsement mechanism provision found unconstitutional by the trial court was found to provide a true choice and held constitutional by the United States Supreme Court in Zelman. 536 U.S. at 653, 122 S.Ct. 2460; see also Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, 609, 620-23 (1998) (holding a school choice program constitutional under federal and state constitutions with the same restrictive endorsement mechanism). The trial court's ruling erroneously ignores the program's numerous provisions giving parents and guardians the choice of where their children go to school. The parents or guardians make their choice before the warrants are issued, not by their restrictive endorsements. The restrictive endorsement procedure simply describes the mechanics of implementing the choice already made.

Because parents and guardians have a choice, their children, who would otherwise attend failing schools, rather than sectarian institutions, are aided by the program. Accordingly, the program does not violate Article I, § 3 of the Florida Constitution. The majority completely fails to address the effect of choice in the analysis.

V. ART. I, § 3, FLA. CONST. IS NOT MORE RESTRICTIVE

The majority holds, citing Silver Rose Entm't, Inc. v. Clay County, 646 So.2d 246, 250-51 (Fla. 1st DCA 1994), that although the program is constitutional under the United States Constitution, the program violates Article I, § 3 of the Florida Constitution because the last sentence of Florida's Constitution against indirect aid is more restrictive than the United States Constitution. In Silver Rose, the court stated that, to satisfy Article I, § 3 of the Florida Constitution, the three-prong test under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), must be satisfied and that the no-aid language of section 3 "adds a fourth" prong. However, the court held that Clay County's ordinance outlawing the sale of alcohol on "Christmas day and Christmas night" was not facially unconstitutional. Id. at 253. Because the no-aid language in the last sentence of Article I, § 3 was not at issue in the case, the "fourth prong" statement in Silver Rose is dicta. The court simply compared the explicit language of the constitutions, but made no comparison of the holdings by the Florida Supreme Court and the United States Supreme Court construing the relevant language of the constitutions. While the court in Silver Rose had no reason to do such an analysis, this case requires it, but the majority has failed to engage in the analysis. Rather, the majority has blindly accepted the appellees' argument that the Florida no-aid provision differs from the United States Constitution. In doing so, the majority has erred.

This "fourth prong" has not always been followed by this court. In Todd v. State, 643 So.2d 625, 628, 630 (Fla. 1st DCA 1994), the court noted the three prongs under Lemon, and held that although there was some indirect benefit to religious organizations from the statute making it a felony to deface a church, synagogue, mosque or other place of worship, these incidental benefits are not unconstitutional under the United States or Florida Constitution.

For us to hold that the no-aid language in the last sentence of Article I, § 3 adds restrictions to the Florida Constitution not found in the United States Constitution, as appellees argue, we would have to determine that there are no similar no-aid restrictions in the United States Constitution. To the contrary, even though the same explicit words in the Florida Constitution are not stated in the Establishment Clause of the United States Constitution, the United States Supreme Court's interpretations of the Establishment Clause require the same analysis for indirect aid. The Court has specifically addressed aid to schools, direct and indirect, in the context of the Establishment Clause. See Zelman, 536 U.S. at 648-53, 122 S.Ct. 2460 (collecting cases). In Zelman, Justice O'Connor describes the analysis:

The test today is basically the same as that set forth in School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (citing Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)), over 40 years ago.

The Court's opinion in these cases focuses on a narrow question related to the Lemon test: how to apply the primary effects prong in indirect aid cases? Specifically, it clarifies the basic inquiry when trying to determine whether a program that distributes aid to beneficiaries, rather than directly to service providers, has the primary effect of advancing or inhibiting religion , Lemon v. Kurtzman, supra, at 613-614, 91 S.Ct. 2105, or, as I have put it, of "endors [ing] or disapprov[ing] . . . religion," Lynch v. Donnelly, supra, at 691-692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (concurring opinion); see also Wallace v. Jaffree, 472 U.S. 38, 69-70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'CONNOR, J., concurring in judgment). See also ante, at 2467. Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; second, and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. If the answer to either query is "no," the program should be struck down under the Establishment Clause.

536 U.S. at 668-69, 122 S.Ct. 2460 (O'Connor, J., concurring) (emphasis added); See also Everson v. Bd. of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (holding that state program reimbursing parents for expenses incurred in transporting their children to school, including religious schools, is constitutional); Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (holding that state program loaning secular textbooks to all children within the state, including to those in religious schools, is constitutional). The various state cases cited by the majority involve different constitutional and statutory language not at issue here.

The majority ignores all of the United States Supreme Court decisions that analyze the federal Establishment Clause in terms of indirect aid to religious institutions. Florida's Constitution is not more restrictive — indirect aid cases are analyzed under the federal Establishment Clause as well. Because the Florida no-aid provision is no more restrictive than the United States provision, the Florida program should be ruled constitutional as was the program in Zelman. VI. THE MAJORITY'S RULING DISCRIMINATES AGAINST RELIGION IN VIOLATION OF THE FEDERAL FREE EXERCISE CLAUSE

The Florida Supreme Court in Johnson, as the majority correctly points out, analyzed the no-aid language as part of the Establishment Clause analysis of Article I, § 3, consistent with federal constitutional Establishment Clause jurisprudence. This supports my view that the Establishment Clause in Article I, § 3, including the no-aid language, as interpreted by the Florida Supreme Court, means the same as the Establishment Clause in the United States Constitution, as interpreted by the United States Supreme Court. Johnson should be followed, and this Court should rule the program constitutional.

Appellants, on motion for rehearing and/or rehearing en banc, argue that the majority's ruling discriminates against religion in violation of the United States Free Exercise Clause, notwithstanding Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004). I agree.

Locke v. Davey

The United States Supreme Court, in Locke, ruled that a Washington statute prohibiting the use of state scholarship money for pursuing a degree in theology does not violate the United States Free Exercise Clause. Id. at 1309. The Court stated that the Establishment Clause and the Free Exercise Clause "are frequently in tension," and that "`there is room for play in the joints' between them. Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)." Id. at 1311. The Court held that the statute fit within the "play between the joints." Id.

The majority's ruling is outside the play between the joints in violation of the United States Free Exercise Clause. Although a state may take action within this narrow "play between the joints" without violating the Free Exercise Clause, a state is not free to do whatever it may wish. Citizens in other states should not have greater federal constitutional rights than citizens of Florida because of the erroneous trial court and majority decisions. The United States Free Exercise Clause still exists and protects against religious discrimination. In Walz, the Court stated:

The course of constitutional neutrality in this area [between the Establishment clause and Free Exercise Clause] cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.

397 U.S. at 669, 90 S.Ct. 1409 (emphasis added). State action may be permitted within the space of "play in the joints" when it is "productive of a benevolent neutrality," according to Walz. The Opportunity Scholarship Program, not the majority's adverse ruling, is a product of benevolent neutrality. Accordingly, the majority's ruling does not fit within the play between the joints as described by the Court.

In Locke, the Court specifically stated that the state's power is not without limit and noted that its holding only pertained to paying for the training of clergy:

Justice Scalia notes that the State's "philosophical preference" to protect individual conscience is potentially without limit, see post, at 1318; however, the only interest at issue here is the State's interest in not funding the religious training of clergy. Nothing in our opinion suggests that the State may justify any interest that its "philosophical preference" commands.

124 S.Ct. at 1313 n. 5 (emphasis added). The Court noted that "religious instruction is of a different ilk." Id. at 1314. Here, the majority's ruling is not a narrow prohibition against paying for the training of clergy. Therefore, Locke is distinguishable. The majority fails to address the limitations the Locke majority imposed on its ruling, avoiding discussion on the merits by summarily treating my analysis the same as Justice Scalia's rejected dissenting view. The majority erroneously treats Locke as a license for states to draw the United States Constitutional boundaries for the Free Exercise Clause, thereby giving the Clause no effect. Contrary to the majority's view, the "play between the joints" concept is not without limit, and not all state action will be permitted as falling within that narrow window.

The Locke Court emphasized that the exclusion of funding was a "relatively minor burden." Id. at 1315. That is not the case at bar. The effect of the majority's ruling is exceptionally significant to the Opportunity Scholarship Program and to the various state programs that are much larger in scope. Attorney General Robert A. Butterworth's argument that an application of the trial court's order would negatively impact a number of programs is correct. For example, pursuant to the majority opinion, the Bright Futures scholarship program may be declared unconstitutional in its entirety along with programs that fund hospitals because some of the program dollars are deposited into religious organizations. This would have a dramatic, devastating effect on colleges, students and their families, health care providers, and patients throughout Florida. See Polston, J. dissenting supra at "I. Schools Are Not Different Under Art. I, § 3" (listing various programs to be affected by this ruling as identified by Attorney General Butterworth).

The majority's ruling prohibits any money originating from the state to be paid to a religious organization, regardless of an individual's intervening choice and regardless of the reason. As appellants stated, "[r]arely has a decision been reached by this Court that would have such significant impact upon such a wide range of Florida citizens." This is not the same as the narrowly written Washington statute that fits within the narrow "play between the joints" as addressed in Locke. Rather, the majority is trying to fit its ruling, the size of a semi-truck, through the small window of the "play between the joints." There is no room between the joints for the majority's broad-sweeping interpretation of Florida's Constitution. The effect is too large — there is not enough play.

The Court also noted in Locke that there was nothing in Washington's statute or constitution to suggest "animus towards religion." Id. at 1315. Here, the majority's interpretation of Article I, § 3, constitutes animus toward religion because the effect is to discriminate against religious organizations. Religious organizations may, pursuant to the majority's interpretation of Florida's Constitution, be specifically excluded from various programs and from receiving tax exemptions currently enjoyed by religious organizations throughout Florida (e.g., property taxes and sales taxes) even though received through statutes that are broadly written and neutrally applied. Locke does not provide a safe haven to the majority's ruling beyond the reach of the Free Exercise Clause.

United States Free Exercise Clause

Because a constitutional provision should not be construed in a manner to render it inoperative, see Chiles v. Phelps, 714 So.2d 453, 459 (Fla. 1998), I believe the trial court's and the majority's interpretation is in error. See Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla. 1993) ("If it is reasonably possible to do so, we are obligated to interpret statutes in such a manner as to uphold their constitutionality."); State v. Gale Distribs., Inc., 349 So.2d 150, 153 (Fla. 1977) ("[The courts] ha[ve] a duty, if reasonably possible and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality and to construe it so as not to conflict with the Constitution."). Even if the trial court's interpretation properly construed Article I, § 3, such a construction would violate the United States Free Exercise Clause, requiring our reversal and vacation of the judgment. See U.S. Const. art. VI, cl. 2 (Supremacy Clause).

The trial court's interpretation of Article I, § 3 violates the United States Constitution because it excludes religious organizations from participation. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (holding that a city ordinance was not neutral and restricted religious practice, and therefore was an unconstitutional violation of free exercise); McDaniel v. Paty, 435 U.S. 618, 620, 629, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978) (holding that a provision in Tennessee's Constitution barring "Minister[s] of the Gospel, or priest[s] of any denomination whatever" from serving as a delegate to a Tennessee constitutional convention violated appellant's free exercise of religion under the United States Constitution); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (holding that a school's exclusion of Christian children's club from meeting after hours at school based on its religious nature was unconstitutional); Rosenberger v. Rector Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that the university's denial of funding to university student organization which published newspaper with Christian editorial viewpoint was unconstitutional); Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (holding that the university's closure of its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion was unconstitutional; Missouri's interest in achieving greater separation of church and state under its own constitution was not sufficiently compelling to justify discrimination against religious free exercise and free speech protection under the United States Constitution).

The Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause of the United States Constitution act in concert to prohibit state action that restricts, limits, or divests one's legal rights, duties, or benefits based on his or her religion. See Bd. of Educ. v. Grumet, 512 U.S. 687, 715, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (O'Connor, J., concurring). Just as the government may not discriminate based upon race, so too it may not discriminate based upon religion. Id. at 728, 114 S.Ct. 2481 (Kennedy, J., concurring). The Free Exercise Clause requires neutrality and prohibits "[o]fficial action that targets religious conduct for distinctive treatment." See Lukumi Babalu, 508 U.S. at 534, 113 S.Ct. 2217. The Equal Protection provision of the Fourteenth Amendment prohibits "an unlawful intent to discriminate against [individuals] for an invalid reason, such as their religion." Altman v. Minn. Dept. of Corr., 251 F.3d 1199, 1203 n. 3 (8th Cir. 2001) (quoting in part Batra v. Bd. of Regents, 79 F.3d 717, 721 (8th Cir. 1996)). The Free Exercise Clause pertains if the state action at issue "discriminates against some or all religious beliefs." Lukumi Babalu, 508 U.S. at 532, 113 S.Ct. 2217. The Equal Protection Clause provides protection analogous to the Free Exercise Clause against state action that targets individuals because of their religion. Id. at 540, 113 S.Ct. 2217. If the state action is neutral towards religion, there is no violation of the Free Exercise Clause and the Equal Protection Clause, even if the state action has an incidental effect of burdening religion. Id. at 531, 113 S.Ct. 2217. If the state action is not neutral towards religion, the state action must be justified by a compelling interest and be narrowly tailored. Id. at 531-32, 113 S.Ct. 2217. Together, the Free Exercise Clause and the Equal Protection Clause reinforce one another and prohibit state action that singles out religion for discriminatory treatment. The trial court violated these provisions by striking down the entire Opportunity Scholarship Program because the program allowed revenue from the public treasury to reach religious institutions.

Appellees argue that because the trial court struck down the entire program, and not just the portion involving scholarships for schooling at religious institutions, the trial court's order was neutral towards religion. However, the Free Exercise clause prohibits even "subtle departures from neutrality." Id. at 534, 113 S.Ct. 2217. "Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality." Id. The record in the instant case makes it clear that preventing the use of opportunity scholarships at religious institutions was the object of the trial court's order. Therefore, the trial court's order was not neutral towards religion, and it must be invalidated unless it was justified by a compelling governmental interest and narrowly tailored to advance that interest. Id. at 531-32, 113 S.Ct. 2217; see also Mo. Knights of the Ku Klux Klan v. Kansas City, 723 F.Supp. 1347, 1352 (W.D.Mo. 1989) (ruling that whether the unconstitutional exclusion is accomplished individually or by elimination of the total forum is inconsequential, the result is the same); Britton v. City of Erie, 933 F.Supp. 1261, 1267 (W.D.Pa. 1995) (ruling that eliminating a city public access channel would violate the equal protection clause if there was proof of a discriminatory intent or purpose).

A discriminatory act cannot be protected by eliminating the whole program. Could the state cure a discriminatory act of not hiring or terminating an individual because of race by simply eliminating the employment position? Obviously not. See, e.g., Minton v. Am. Bankers Ins. Group, Inc., 2003 WL 21303330, at *1 (11th Cir. Feb. 6, 2003) (ruling that "[a]lthough his position was eliminated, Minton can show a prima facie case of discrimination if he can demonstrate that his position was abolished for discriminatory reasons, and that its elimination was merely a pretext to shroud the Defendant's discriminatory intent in releasing him").

Appellees argue that the trial court's order was justified by the compelling interest of complying with and enforcing the Florida Constitution's Establishment clause. This argument was raised in Widmar, 454 U.S. at 270, 102 S.Ct. 269. In Widmar, the Court stated, "[T]he state interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution — is limited by the Free Exercise Clause." Id. at 276, 102 S.Ct. 269. In that case, the Court found that the state's interest was not sufficiently compelling to justify the discrimination in that case against religious speech. Id. at 276, 102 S.Ct. 269. Similarly, in the instant case, this Court should not recognize any state constitutional interest as sufficiently compelling to justify the discrimination against religion in violation of the Free Exercise Clause. Therefore, even if the trial court's judgment properly interpreted Article I, § 3, it must be invalidated as unconstitutional because it targets religious conduct for distinctive treatment that is not justified by a compelling interest. VII. THE MAJORITY'S RULING DISCRIMINATES AGAINST RELIGION IN VIOLATION OF FLORIDA'S FREE EXERCISE CLAUSE

It is the trial court's judgment interpreting Article I, § 3, affirmed by the majority's ruling, that violates the United States Constitution Free Exercise Clause. Accordingly, the trial court's ruling, not legislative or executive action, is the unconstitutional state action that is subject to review under this provision. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (holding that a trial court order requiring production of membership records violated the United States Constitution's Due Process Clause; "It is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize."); Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 191, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960) (stating that "whether legislative or judicial, it is still the application of state power which we are asked to scrutinize"); Shelley v. Kraemer, 334 U.S. 1, 18, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (stating that "it has been the consistent ruling of this Court that the action of the States to which the [ Fourteenth] Amendment has reference includes action of state courts and state judicial officials"); Morgan v. State, 337 So.2d 951, 955 n. 9 (Fla. 1976) (stating that "[t]he judiciary, a branch of government coequal with the executive and the legislature, is no less subject to constitutional strictures against governmental interference with First Amendment rights"); State ex rel. Lawson v. Woodruff, 134 Fla. 437, 184 So. 81, 84 (1938) (stating that the Fourteenth Amendment applies to all state action whether legislative, executive, judicial, administrative, municipal, or ministerial).

The trial court, and the majority, simply rule that Florida's Establishment Clause, including the no-aid language, must be afforded great weight, without making any attempt to reconcile it with Florida's Free Exercise Clause. See Local Union No. 519 v. Robertson, 44 So.2d 899, 903 (Fla. 1950) (ruling that when constitutional interests are competing, they should be harmonized to give effect to each). The trial court's interpretation of the no-aid language in the last sentence of Article I, § 3 erroneously conflicts with the Free Exercise Clause of the Florida Constitution. See Chiles, 714 So.2d at 459 (Fla. 1998) (ruling that the Florida Constitution should not be read in a conflicting manner); Capital City Country Club, 613 So.2d at 452.

Ignoring the Free Exercise Clause of Florida's Constitution in the first sentence of Article I, § 3, the trial court stated that the only portion of Article I, § 3 that had any relevance to the proceeding was the last sentence. The first sentence states: "There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof." The phrase "or penalizing" is not explicitly stated in the United States Constitution's Free Exercise Clause. To the extent that appellees argue that the additional no-aid language in Florida's Establishment Clause should be read as more restrictive, this additional language in the Free Exercise Clause should also be read as more restrictive. Instead of applying the same legal reasoning to both the Establishment Clause and Free Exercise Clause, the majority ignores this different language and states, without any analysis, that Florida's Free Exercise Clause means the same as the United States Constitution.

The majority suggests that we should ignore the Florida Free Exercise Clause in our de novo interpretation of the Florida Establishment Clause, even though it appears in the same section of the Constitution, because it was not argued to the trial court. We would not ignore authoritative cases and related statutory sections when interpreting statutory and constitutional provisions because they were not cited in the court below. We should not ignore constitutional language that appears in the same section of the Constitution as the provision we are examining, particularly when it is well settled that the Establishment and Free Exercise Clauses are innately intertwined.

A plain reading of the phrase "or penalizing" precludes discriminatory actions against religious organizations. See Merriam-Webster's Collegiate Dictionary 858 (10th ed. 1998) (defining "penalize" as "to put at a serious disadvantage"). Under the majority's legal reasoning that more words in the Florida Constitution necessarily means more restrictions, it follows that there is less "play in the joints" between the Florida Establishment Clause and the Florida Free Exercise Clause than between these clauses in the United States Constitution. If there is less "play in the joints" in the Florida Constitution, then there is less room for the disparate treatment of religious organizations under the Florida Constitution. Therefore, the trial court's discriminatory ruling is contrary to Florida's Free Exercise Clause.

If there is not less play in the joints, the Opportunity Scholarship Program fits within the play permitted by the Florida Constitution. See Johnson, 239 So.2d at 259-60 (reviewing a challenge under the United States and Florida Constitutions, quoting Walz, noting there is "room for play in the joints productive of a benevolent neutrality"). It is beyond dispute that the Opportunity Scholarship Program is productive of a benevolent neutrality. Accordingly, the program is within Florida's constitutional play in the joints and should be upheld.

With less play in the joints than in the Federal Constitution, the United States Supreme Court decisions prohibiting discrimination against religion, not applied in Locke, should be followed as persuasive authority in interpreting Florida's Free Exercise Clause. See Polston, J. dissenting supra at "VI. The Majority's Ruling Discriminates Against Religion in Violation of the Federal Free Exercise Clause."

If one concludes that the Florida Establishment Clause has more weight than the Florida Free Exercise Clause, then one must necessarily erroneously conclude that the Florida Free Exercise Clause has less weight and the required balancing and resulting neutrality is eliminated. There is no legal basis to suggest that Florida's citizens have fewer rights under their Free Exercise Clause such that neutrality is lost. To the contrary, the Florida Supreme Court has consistently required neutrality in protection of religious exercise. For example, in Johnson, the Florida Supreme Court noted that the homes for the aged were owned by non-profit organizations who were properly licensed, and stated that " [t]o exempt all homes complying with the statute, except church-related homes, would indeed be discriminatory and inconsistent with the obvious intent and secular aims of the Legislature." 239 So.2d at 261-62 (emphasis added).

The majority's opinion eliminates the protection for religious organizations against discrimination that the Florida Free Exercise Clause and the Florida Supreme Court's decision in Johnson affords them. If the legislature had written a statute that provided for vouchers but explicitly excluded religious organizations from participating in the program, the statute would be constitutional under the majority's ruling even though Florida's Free Exercise Clause prohibits "penalizing" religion. Similarly, if religious organizations were excluded from property tax and sales tax exemptions although other charitable organizations received those benefits, those exclusions would be constitutionally permissible under the majority's ruling. Florida's Free Exercise Clause is being written out of the Florida Constitution because the prohibition against "penalizing" religion is being ignored.

The Florida Constitution should not be construed in a manner that tips the scales of neutrality in favor of more restrictions and less free exercise of religion. I decline to do so.

Conclusion

I conclude that the trial court erred by granting final summary judgment in favor of appellees because the Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999), does not violate Article I, § 3 of the Florida Constitution. Therefore, I respectfully dissent.

BARFIELD, KAHN, LEWIS, and HAWKES, JJ., concur.