Indiana’s constitution unequivocally establishes a right for Hoosiers to have guns.

In language that seems equally precise, the state constitution prohibits tax money from going to churches. Yet parochial schools would undoubtedly get students – and state money – under a controversial proposal to offer vouchers for students to attend private schools.

While the U.S. Supreme Court has ruled vouchers do not violate the U.S. Constitution, many state constitutions have additional restrictions.

“I think it’s clearly unconstitutional,” William P. McLauchlan, an associate professor of political science at Purdue University, said of the voucher proposal. He is the author of several books about Indiana’s constitution, including an upcoming release from Oxford University Press as part of a series on state constitutions.

Other legal experts aren’t so certain, and still others flatly disagree. A voucher law would almost certainly end up in the hands of the Indiana Supreme Court.

There, the five Indiana justices ought to kill the law.

Public tax money for schools should not go to churches, and that includes church schools, which often operate as a ministry of the church.

But the experience in Indiana and other states suggests a court decision could go either way.

Earlier this year, tea party followers and other conservatives made a push for members of Congress to read the U.S. Constitution. Some insisted that every law must have a clear constitutional foundation.

If such a move took place in Indiana, many conservatives would be happy to find a state constitution that not only accommodates but practically invites new laws to expand gun rights.

But they might not be so happy about what the constitution says about sending public money to church schools.

Church and state

In some ways, Indiana’s 1851 constitution is an extraordinarily populist document. It starts with the bill of rights – Article 1 – and lists not 10 but 37 rights of Hoosiers.

Five of them address religion and the separation of church and state, a phrase that appears nowhere in the constitution but accurately sums up Indiana’s language. Among other elements, the constitution bans any law that would prohibit, require, regulate or give preference to any particular religion.

Indiana isn’t alone. The majority of state constitutions have such language, dubbed “Blaine Amendments” after 19th-century congressman James Blaine of Maine, who unsuccessfully sought a similar amendment to the U.S. constitution. The motivation was at least partly political: Blaine was a Republican, many Catholics at the time were Democrats, and Catholics were seeking funding for their schools. After failing on a federal level, many states adopted such language.

In the Indiana Supreme Court’s most relevant ruling, the 2003 decision in Embry v. O’Bannon, the justices noted the historical background behind some of the religion-related constitutional language.

While that decision acknowledges Protestants concerned about the number of Catholic immigrants in the 1820s and 1830s led the movement for “common” schools, it also questions whether that was much of a factor when Indiana’s state constitution was adopted – nearly 25 years before Blaine pushed his proposed amendment.

In the Embry ruling, the state court upheld a program that allows public money to pay for public school teachers to teach certain courses in parochial schools. Supporters say that ruling goes far to allow vouchers, but the court specifically ruled the limited program “does not provide any substantial benefit to the participating parochial schools.” Vouchers would clearly be more substantial.

While the decision was unanimous, two justices took issue with a part of the opinion that questions whether Article 1, Section 6 of the constitution would apply to parochial schools.

It “seems quite a stretch to conclude that a parochial school is not a ‘religious institution’ within the meaning of that constitutional provision,” wrote Justice Theodore Boehm, who retired last fall. “No one claims that the church-affiliated schools involved in this litigation provide a purely sectarian curriculum. Rather, although they raise their pupils in different faiths, each of these schools teaches its own single religious or theological doctrine as creed. That in my view plainly renders each of them a ‘religious institution.’ …

“(P)ublic support for education of parochial pupils in subjects not offered by parochial schools seems perfectly appropriate to me. It is an entirely different question, however, whether all citizens of the state can be compelled to pay for religious education with tax dollars.”

The court “majority would implicitly leave the door open to public funding of sectarian schools,” Boehm concludes. “The Constitution stands squarely against that proposition.”

Justice Frank Sullivan, who remains on the court, agreed with Boehm.

“We’re talking about giving taxpayer money, allowing people to spend my money and yours,” notes McLauchlan, the Purdue expert. “I think the proposal on vouchers is fundamentally flawed.”

Gov. Mitch Daniels is confident vouchers are permissible under the state constitution. That view has backing of a study by Indianapolis attorney Peter Rust-hoven – a longtime Republican and Daniels backer, whose study was commissioned by a pro-voucher group – and the Institute for Justice, a pro-school choice libertarian group that has defended voucher programs.

Other rulings

The U.S. Supreme Court ruled in 2002 that vouchers for religious schools are permissible under broad circumstances and do not violate the First Amendment prohibition on government establishment of religion. The record on how state constitutions treat private school vouchers is mixed.

The Wisconsin Supreme Court, for example, upheld its voucher law because the money went to parents to pay for tuition, not directly to the religious schools – reasoning that was also part of the 2002 U.S. Supreme Court ruling, which involved Ohio schools. “The Indiana constitutional provision, to some extent, is very similar to language in the Wisconsin constitution, and the Wisconsin Supreme Court has upheld vouchers,” said Daniel Conkle, an Indiana University law professor who also teaches religious studies.

Indeed, the argument that voucher money benefits parents who choose the school is a key legal principle that voucher supporters use in legal cases.

The Maine Supreme Court, however, ruled that though the voucher subsidy may be indirect, it still results in public money going to churches. “Although the school is chosen by the parents, not the State, choice alone cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion,” that court ruled.

The Florida Supreme Court also struck down a voucher program because it interfered with the state’s constitutional requirement for uniform and free public schools – a requirement Indiana’s constitution also demands.

Diverting money from public to religious schools “not only reduces money available to the free schools, but also funds private schools that are not ‘uniform’ when compared with each other or the public system,” the Florida court ruled in an upset to the education agenda of Jeb Bush, then Florida’s governor.

Florida maintains a different program that gives tax credits to corporations with scholarship organizations, which then awards scholarships to private schools. Indiana has a similar program.

Courts decide

Constitutional freedoms are rarely absolute. Just as there is no legal protection for yelling “fire” in a crowded theater (First Amendment), governments can outlaw machine guns and bar convicted felons from having weapons, despite the Second Amendment.

Still, the best laws and best constitutional language are those that are clear.

While people on either side of the gun debate have long argued whether the Second Amendment gives the right to bear arms to individuals or state militias, Indiana’s constitution unequivocally gives individual Hoosiers the right to have a gun. Few Indiana gun laws are challenged for constitutional reasons, said Bryan Ciyou, an Indianapolis lawyer who has handled numerous gun cases and has written a reference book on Indiana gun laws.

“Indiana has left it wide open to the legislature” to decide how to regulate guns, he said. In some years, lawmakers are more restrictive. “Right now, you’re seeing the openness trend,” he noted.

That includes proposals in this year’s General Assembly to allow handgun owners to carry their weapons more places even if they lack a permit; to eliminate the power of cities and counties to ban guns in certain buildings and places; to loosen some restrictions on having guns in cars parked at schools; and to prohibit businesses from even asking employees whether they have guns in their cars.

Proponents of those measures can find support in Indiana’s undeniable constitutional right “to bear arms, for the defense of themselves.”

But for voucher proponents to succeed under constitutional grounds, they will have to persuade courts that vouchers do not “benefit … any religious or theological institution.”