Religious liberty being fought on the state level

The amendment was motivated by an ongoing lawsuit against two faith-based organizations that received state funding to provide substance abuse for prison parolees. But the argument that killed the amendment was made by the state's teachers' union, which said the measure would have allowed funding for school vouchers by allowing state funds to go to religious schools.

About 38 states have similar constitutional provisions, commonly called "Blaine Amendments," which explicitly prohibit public funds from going to "sectarian schools."

Lori Windham, general counsel at the Becket Fund for Religious Liberty, said some state legislatures, like Florida, are considering repeals of the amendments.

The amendments — named after former U.S. House Speaker James Blaine who in 1875 unsuccessfully tried to amend the federal Constitution with the same restriction on public funding — were popular in states where anti-Catholic sentiment was strong. The provisions prevented Irish Catholic immigrants from influencing the public school systems, which were largely Protestant at the time.

Despite the unsavory history of the amendments, they have been an effective tool for opponents of school vouchers and secularist groups that want to block government funding to religious organizations providing social services.

De Dora said the secularists' opposition to religious organizations receiving public funding for social services stems from the fact that faith-based groups receive exemptions to rules that other nonprofit groups have to comply with. In particular, faith-based groups are exempt from rules that go against the groups' religious beliefs.

Another issue that could surface in statehouses is laws that allow public school credit for released-time religious education.

Windham said that the Supreme Court in November denied an appeal of a 4th Circuit Court ruling in a South Carolina case that found off-campus religion classes taken during school hours can receive the same credit as off-campus non-religion classes offered in the public school system.

Windham said the Becket Fund has already received several calls from state lawmakers around the country asking whether the ruling opens the door for similar released-time policies in other states.

"This is an area where we could see more battles over religious education and parental and student choice," she said. "Now that we have that case decided, it is possible we will see more of those kinds of laws being passed."