More than 100 years ago, Oklahoma added an article to its state Constitution banning religious organizations from using public funds for any purpose, even indirectly. Oklahoma voters will decide on Tuesday whether to keep the article, which supporters say properly separates church and state but opponents say is a remnant of 19th century anti-Catholic bigotry.

Disparaged as one of the so-called “Blaine Amendments” by opponents, the section’s title defines such use of public money as “sectarian.” If approved, State Question (SQ) 790 will remove Section 5 from Article 2, the “Bill of Rights” section of the state Constitution.

According to OklahomaBlaine.org, secular groups used Article 2, Section 5 against religious groups. “The mounting legal fees and promises by secular groups to continue to sue under Blaine prompted the state legislature to propose removing Blaine from the State Constitution,” says the website. In a bipartisan vote, the Oklahoma senate voted 39-5 and the house 65-7 to put SQ 790 on the ballot.

A Conflicting Battle Over Liberty

Speaking to The Stream, a spokesperson for the Oklahoma’s ACLU chapter described SQ 790 as “an affront to principles of religious liberty that have been with us since our nation’s founding and were so fundamental that the founders of our state saw fit to enshrine in our own constitution.” A Becket Fund for Religious Liberty attorney, however, told The Stream that the measure would expand liberty in the state.

Article 2, Section 5 is sweeping. “No public money or property,” it says,

shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

SQ 790 summarizes the article and then notes that Oklahoma courts have interpreted it to require the removal of a Ten Commandments monument from the grounds of the State Capitol. (In the case that led to SQ 790, the state supreme court ordered the removal of a privately-funded Ten Commandments monument from state Capitol grounds. A Satanic group had planned to put their own monument on the grounds until that ruling.) SQ 790 says that if it passes,

the government would still be required to comply with the Establishment Clause of the United States Constitution, which is a similar constitutional provision that prevents the government from endorsing a religion or becoming overly involved with religion.

Religion is the Real Issue

While the ballot measure uses a Ten Commandments monument as an example, both opponents and supporters have focused on the possible funding of religious education by the state.

SQ 790 supporter and Becket Fund for Religious Liberty Senior Attorney Eric Baxter explained to The Stream that public schools had used Article 2, Section 5 to sue parents who used a state scholarship program to send their disabled children to religious schools. While the program itself lets families decide where to send their children, school systems told the families “it was okay to use their scholarships at secular private schools, but not religiously affiliated schools.”

Becket successfully represented one of the families. “Their scholarships were tied up for more than five years … because of the Blaine Amendment,” he said.

Blaine Amendments, according to The Becket Fund, “were passed as a direct result of the nativist, anti-Catholic bigotry that was a recurring theme in American politics during the 19th and early 20th centuries.” Originally intended for the U.S. Constitution by then-House Speaker James Blaine in 1875 with the support of Protestants, the amendment never made it past the Senate. State versions, however, have been enacted in more than half of the states.

In its 2000 Mitchell v. Helms decision, a majority of the U.S. Supreme Court recognized the Amendments’ use of the word “sectarian” — used in the title of Article 2, Section 5 — to express a “doctrine born of bigotry [that] should be buried now.” When it successfully appealed to the Oklahoma Supreme Court for its clients after losing in a lower court, The Becket Fund argued while Blaine Amendment language was not explicitly in the Oklahoma Constitution, similarities made the intentions of Article 2, Section 5 clear.

Maggie Garrett, the Legislative Director for Americans United for Separation of Church and State, told The Stream that the Section is not a Blaine Amendment. “Oklahoma’s Article 2, Section 5 was carefully crafted by Native Americans, community leaders, and faith leaders who wanted [to] protect religion by keeping the government and politics out of it. Many were concerned about government-financed schools that attempted to force Christianity on Native American children.”

The state Supreme Court ruled in favor of Becket’s clients in February 2016, though it left Article 2, Section 5 in place.

Discrimination or Liberation?

In an article for the Tulsa World, the state’s Lieutenant Governor Todd Lamb and U.S. Senator James Lankford (R-OK) backed SQ 790, warning that Article 2, Section 5 “is a discriminatory provision in our Constitution that flies in the face of many of the Oklahoma values we cherish — love of neighbor, reverence for humanity and respect for the right to express religious freedom.”

The two Republicans also warned that it was possible to interpret as illegal “hundreds of millions of state and federal dollars being expended annually for Medicaid patients” at “nonprofit but religious-based hospitals.” Under an extreme interpretation, “church groups” could be banned from using state-funded parks or participating in tutor and foster programs.

However, a spokesperson for the Oklahoma arm of the ACLU, which opposes SQ 790, told The Stream that Lankford’s and Lamb’s concerns were misguided.”Our Constitution is informed by our own unique history and our framers’ efforts at preventing the use of religion as a weapon used by government, while preserving the right of religious liberty for future generations of Oklahomans,” said Allie Shinn.

Garrett agreed with Shinn that Article 2, Section 5 is not anti-religious. “Those arguments can be wholly dismissed,” she told The Stream. She also agreed with Lankford and Lamb, however, saying that “religious-affiliated groups already can and do receive government dollars to perform secular services under the Oklahoma Constitution.” However, “they should abide by the same rules that apply to non-religious groups that receive government funding.”

Closing Arguments on SQ 790

Garrett said that passage of SQ 790 would harm both government and religious groups, because Section 2, Article 5 “guarantees the integrity of churches and the government,” she said. Shinn agreed, arguing that “We have long recognized in this country that allowing religion and government to become one is bad for government and bad for religion. Article 2, Section 5 protects true religious liberty and allows deeply personal matters of faith to be left up to the individual, not the government.”

But The Becket Fund’s Baxter said repeal would increase religious liberty by letting private groups partner with the state “to provide a wide range of services to refugees, the homeless, former convicts, disadvantaged children, and many other vulnerable populations.”

“No one’s rights are violated when the government treats everyone equally,” he said. “Everyone’s rights are at risk when the government discriminates against individuals or organizations because of their religious status.”