dissenting.
1108 This difficult case springs from an important public responsibility-educating children-and from thorny questions surrounding the mechanisms that can be employed to fund that responsibility, What. those funding mechanisms should be and how they should be maintained are questions that should, in most cireumstances, be answered by local school boards.
1] 109 But this case involves an exception to that general rule. that cannot be finally resolved by a local school board is whether a particular funding mechanism that it has chosen violates the federal or state constitution. One of the cirenmstances'
4 110 Colorado Constitution article IX, seetion 7 (section 7) is far more detailed and focused on the issues in this case than is the language of the First Amendment. Section Ts language is unambiguous. In my view, it prohibits public school districts from channeling public money to private religious schools.
{111 I think that the Choice Scholarship Program is a pipeline that violates this direct . and clear constitutional command. I would follow this command, and I would conclude that section 7
- establishes greater protection against the establishment of religion in Colorado's public elementary; middle, and high schools than does the First Amendment's Establishment Clause; |
- does not offend the Establishment Clause, the First Amendment's Free Exercise Clause, or the Fourteenth Amendment's Equal Protection Clause; -
- bars transferring public funds to private religious elementary, middle, and high schools; and
renders the Choice Scholarship Program, created by Douglas County School District RE-1, unconstitutional.
[ 112 Because I would reach these conclu-siong, I respectfully dissent from the majority's resolution of this case. I would, instead, affirm the district court's decision to permanently enjoin the scholarship program.
1113 Although I dissent, I do not impute any improper bias or sinister motive to the local school board. The trial court found that the purpose of the scholarship program was a "well-intentioned effort to assist students ... not sectarian institutions." But the fact that the school board acted with a good heart does not mean that it can choose a solution to the admittedly complex and vexing problems surrounding educating children that violates Colorado's Constitution.
e Principiesfised to Interpret Constitutional Sections
.Our state "constitution derives its force . from the people who ratified it, and their understanding of it must control. This is to be arrived at by construing the language[ 1 used in the instrument according to the sense most obvious to the common understanding."
People v. Rodriguez, 112 P.3d 693, 696 (Colo. 2005) (quoting Alexander v. People, 7 Colo. 155, 167, 2 P. 894, 900 (1884)).
1 114 We give the language of our constitution its “ordmary and common meaning" in order to give "effect to every word and term contained therein, whenever possible." Id. (quoting Bd. of Cnty. Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263, 1273 (Colo.2001)). If the language "is plain, its meaning clear, and no absurdity involved, constitutional provisions must be declared and enforced as written." Id. (quoting In re Great Outdoors Colo. Trust Fund, 913 P.2d 533, 538 (Colo. 1996)). "[Iln doing so, technical rules of construction should not be applied so as to defeat the objectives sought to be accomplished by the provision under consideration." Id. (quoting Cooper Motors v. Bd. of Cnty. Comm'rs, 131 Colo. 78, 83, 279 P.2d 685, 688 (1955)).
T115 If it seems that a section of the Colorado Constitution implies limitations on rights or on the legislature's authority, "It becomes highly important to ascertain, if that may be done, what the framers of the Consti*856tution really had in mind, and actually intended to cover, by the enactment of this provision." Schwartz v. People, 46 Colo. 239, 257, 104 P. 92, 98 (1909). To do so, we read the record of the constitutional convention's proceedings and look to "the attitude of the members of that body, as shown by the record concerning the then[-lexisting laws on that subject." Id.
T116 "Where the analogous federal and state constitutional provisions are textually identical, we have always viewed cases interpreting the federal constitutional provision as persuasive authority." People v. Dunaway, 88 P.3d 619, 630 (Colo.2004). However, such decisions do not bind us. See High Gear & Toke Shop v. Beacom, 689 P.2d 624, 628 n. 1 (Colo.1984) (Tenth Cireuit's interpretation of Colorado statute was not binding on Colorado Supreme Court).
'T117 Our supreme court has interpreted sections of the Colorado Constitution differently than the United States Supreme Court has interpreted similarly worded sections of the federal constitution. For example, our supreme court's holding that a person has a reasonable expectation of privacy in the telephone numbers that he or she dials, which is based on Colorado Constitution article II, section 7, is more restrictive than the federal rule, which is based on the Fourth Amendment. Compare Smith v. Maryland, 442 U.S. 735, 742-45, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), with People v. Sporleder, 666 P.2d 135, 140-42 (Colo.1988). Colorado's rule, which is based on Colorado Constitution article II, section 18, barring retrial after an appellate court reverses a trial court's order of dismissal before a verdict has been rendered, is stricter than the federal rule, which is based on the Fifth Amendment's Double Jeopardy Clause. Compare United States v. Scott, 437 U.S. 82, 98-99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), with Krutka v. Spinuzzi, 153 Colo, 115, 124-27, 384 P.2d 928, 933-35 (1963). '
Another example involves speech." The protections found in the First Amendment apply to the states. Curious Theatre Co. v. Colorado Dep't of Public Health & Environment, 220 P.3d 544, 551 (Colo.2009). These protections trump conflicting state constitutional sections. Id. However, "the First Amendment limits the power of the federal and state governments to abridge individual freedoms, not the power of states to even further restrict governmental impairment of those individual freedoms." Id. The United States Supreme Court has "acknowledged each State's 'sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution"" Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo.1991) (quoting PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct., 2035, 64 L.Ed.2d 741 (1980)). Thus, the First Amendment sets the constitutional minimum level of protection that states must provide, but "a state may, if it so chooses, afford its residents a greater level of protection under its state constitution than that bestowed by the Federal Constitution." Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1053-54 (Colo.2002).
[119 When interpreting Colorado Constitution, article II, section 10, which addresses free speech, our supreme court has repeatedly held that this Colorado constitutional seetion "provides broader free speech protections than the Federal Constitution." Id. at 1054 & n. 18 (collecting cases). Such conclusions have been based on "differences between the language of the First Amendment ... and the language of the Colorado Constitution" and Colorado's "extensive history of affording broader protection under the Colo- _ rado Constitution for expressive rights." Id. at 1054.
{120 However, it is fundamentally important to keep in mind that those courts that
fail to explain important divergences from precedent run the risk of being accused of making policy decisions based on subjective result-oriented reasons. .,.
[Clourts should be hesitant in interpreting identical language in state constitutions differently in their efforts to reach conclusions which differ from the United States Supreme Court. Principled differences between the state and federal constitutions are a necessary and important aspect of our system of federalism. Differences exist and should be applied when appropriate.
*857Sporleder, 666 P.2d at 149-50 (Erickson, J., dissenting); see also People v. Timmons, 690 P.2d 213, 218 (Colo.1984) (Erickson, C.J., dissenting) ("[When provisions of the Colorado Constitution closely parallel the federal constitution, or in areas in which state rules or statutes are enacted pursuant to or closely dovetail federal acts or policies, the decisions of the United States Supreme Court should be approached with deference.... A state court should attempt to carefully set forth reasons why it believes that state law or policy leads to a different result.").
121 But, as I explain in some detail below, (1) the language in section 7 is much different from the language of the First Amendment, and, thus, those two constitutional sections are not closely parallel, see Tattered Cover, Inc., 44 P.3d at 1054; (2) prior decisions of the United States Supreme Court and the Colorado Supreme Court have not eliminated those differences as far as the facts of this case are concerned; (8) there are principled differences between the First Amendment and section 7, and recognizing them here is appropriate; and (4) applying section 7 to this case does not violate the Free Exercise, Establishment, or Equal Protection Clauses. -
IIL. Analysis of the Text of the First Amendment and Section 7
A. The Text
1 122 The Colorado Constitution creates an obligation that does not appear anywhere in the United States Constitution. Colorado Constitution article IX, section 2, states:
The general assembly shall ... provide for the establishment and maintenance of a thorough and uniform system of free pub-lie schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously.
See Cary v. Board of Educ., 598 F.2d 535, 543 (10th Cir.1979) ("[The Supreme Court has ruled there is no constitutional right to an education. Whether there is a public education system is left to the states." (citation omitted) (citing San Antonio Indep. Sch. Dist. v. Rodrigues, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1978))).
1123 The United States Constitution does not address the creation of any schools, let alone a "uniform system of free public schools." More specifically, there is no discussion of the duty to create such a system, or what its parameters should be, or what limitations should be placed upon it, in the First Amendment. The First Amendment simply states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
1124 As a result, the United States Constitution does not expressly address the situation that we face here: the intersection of public education, public tax dollars, and private religious schools. However, in my view, the Colorado Constitution specifically addresses that intersection.
€125 Section 7, which is entitled "Aid to private schools, churches, sectarian purpose, forbidden," states:
Neither the general assembly, nor any ... school district ..., shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or 'sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state ... to any church, or for any sectarian purpose.
B. Interpretation of the Text
1126 Giving the language of this section its ordinary and common meaning, and giving effect to every word in it, see Rodriguez, 112 P.3d at 696, I would conclude that this language is clear and unambiguous. I would further conclude that, because the language is plain, its meaning is clear, and there is no absurdity involved, this constitutional section must be "declared and enforced as written." See id. I would not employ technical rules of construction to defeat the clearly stated objectives found in this section, see id. and, because the language is so clear, I do not think it "implies" limitations on the school *858district’s authority, see Schwartz, 46 Colo, at 257,104 P. at 98.
¶ 127 Rather, those limitations are, in my view, patent. Under section 7, school districts cannot “ever make any' appropriation” or “pay from any public fund or moneys whatever, anything ” to “help support or sustain” elementary, middle, or high schools that are “controlled by any church or sectarian denomination whatsoever.” (Emphases supplied.)
¶ 128 Courts in other states have interpreted similar sections in their state constitutions to reach a similar result. In Witters v. State Comm’n for the Blind, 112 Wash.2d 363, 368-70, 771 P.2d 1119, 1121-22 (1989), the Washington Supreme Court considered a section in the Washington Constitution that stated that “[n]o public money ... shall be .,. applied to any religious ... instruction.” Wash. Const, art. 1, § 11. Relying on that section, the court held that a state commission properly denied a student’s request that the state “pay for a religious course of study at a religious school, with a religious career as his goal.” 112 Wash.2d at 368, 771 P.2d at 1121.
¶ 129 In Bush v. Holmes, 886 So.2d 340, 347-61 (Fla.Dist.Ct.App.2004), affd on other grounds, 919 So.2d 392 (Fla.2006), the Florida District Court of Appeal evaluated a section of the Florida Constitution that stated that the revenue of the state or of political subdivisions of the state could not be used “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.” Fla. Const, art. I, § 3. The court held that a state scholarship program that provided vouchers for students to attend religious schools violated this section.
' ¶ 130 In Cain v. Home, 220 Ariz. 77, 83, 202 P.3d 1178, 1185 (2009), the Arizona Supreme Court examined a section in the Arizona Constitution that stated that “[n]o ... appropriation of public money [shall be] made in aid of any ... private or sectarian school.” Ariz. Const, art. IX, § 10. The court concluded that a proposed voucher program that would have provided funds for students to attend religious schools violated this section.
¶ 131 In University of Cmnberlands v. Pennybacker, 308 S.W.3d 668, 679-80 (Ky. 2010), the Kentucky Supreme Court analyzed a section of the Kentucky Constitution that prohibited public funds from being “appropriated to, or used by, or in aid of, any church, sectarian or' denominational school.” Ky. Const. § 189.. The court decided that this section barred the legislature from appropriating money to build a pharmacy school building on the campus of a Baptist college.
¶ 132 I am persuaded by the reasoning in these cases, and I would follow them here.
¶ 133 In doing so, I recognize that the Supreme Courts of Wisconsin and Ohio have reached a different result. Simmons-Harris v. Goff, 86 Ohio St.3d 1, 711 N.E.2d 203 (1999) (interpreting state constitutional section as having the same' meaning as the Establishment Clause); Jackson v. Benson, 218 Wis.2d 835,' 878, 578 N.W.2d 602, 621 (1998) (same). Those eases are distinguishable because the constitutional language that they interpret is substantially different from section 7. The Ohio Constitution section states, “no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.” Ohio Const, art. VI, § 2. The Wisconsin Constitution section states, “nor shall any money be drawn from the treasury for the benefit of religious societies; or religious or theological seminaries.” Wis. Const, art. I, § 18. Further, based on the analysis in this dissent, I disagree with the reasoning in those opinions.
¶ 134 The United States Supreme Court’s decision in Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158- L.Ed.2d 1 (2004), supports my position. There, the Washington legislature created a scholarship program in posh secondary education. But because a section of the Washington Constitution barred the use of public funds for religious instruction, Wash. Const, art. 1, § 11, the legislature stated that the scholarship, could not be employed to gain “a degree in theology.” Id. at 715-16, 124 S.Ct.-1307 (quoting Wash. Rev. Code § 260.80.020(12)©).
■ ¶ 135 Locke held that the prohibition of such use of public funds was constitutional because it
*859imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.
Id. at 720-21, 124 S.Ct. 18307 (citations omitted).
186 Locke recognized that there is "play in the joints" between the Free Exercise and Establishment Clauses, which means that there is room for some "state actions permitted by the Establishment Clause but not required by the Free Exercise Clause." Td. at 718-19, 124 S.Ct. 1807 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 669, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
._ 1187 Although the section of the Washington Constitution that Locke addressed is different from the one at issue here, I am convinced that section 7 fits comfortably into the space created by the "play in the joints" that Locke described. Section 7 does not create civil or criminal penalties; it does not discourage any person professing any faith from participating in political affairs; and it does not require anyone to avoid or renounce the governmental benefit in question, which is a secular education.
1138 Other courts have reached similar conclusions when evaluating state constitutional sections or statutes that prohibit funding religious schools. Wirzburger v. Galvin, 412 F.3d 271, 280-81 (ist Cir.2005) (Massachusetts constitutional section barring popular initiatives that would channel public financial support to religiously afffifiated schools was constitutional under Locke); Eulitt v. Maine, 386 F.3d 344, 354 (ist Cir. 2004) ("[Locke | confirms that the Free Exercise Clause's protection of religious beliefs and practices from direct government encroachment does not translate into an affirmative requirement that public entities fund religious activity simply because they choose to fund secular equivalents of such sctivity.... The fact that the state cannot interfere with a parent's fundamental right to choose religious education for his or her child does not mean that the state must fund that choice."); University of Cumberlands, 308 S.W.3d at 679-80 ("Locke ... firmly supports our conclusion that the Kentucky Constitution, does not contravene the Free Exercise Clause when it prohibits appropriations of public tax monies to religious schools."); Anderson v. Town of Durham, 895 A.2d 944, 958-59 (Me.2006) (statute's prohibition of funding religious schools "does not burden or imhibit religion in a constitutionally signifi-eant manner"); Bush, 886 So.2d at 363-66 ("[Llike the Washington provision in Locke, the Florida no-aid provision is an expression of a substantial state interest of prohibiting the use of tax funds 'directly or indirectly' to aid religious institutions."); cf. Chittenden Town Sch. Dist. v. Dep't of Educ., 169 Vt. 310, 343-44, 738 A.2d 539, 563 (1999) (pre-Locke case; tuition reimbursement plan to parochial schools was unconstitutional under Vermont Constitution section that prohibited the use of public funds to pay for religious worship; the state constitutional section did not violate the Free Exercise Clause).
1 189 Applying this authority, I would conclude that section 7 does not violate the Establishment Clause. Rather, it permissibly sets forth a different, more restrictive non-establishment standard. This is because there are "strong state antiestablishment interests in prohibitions on the support of religious establishments," University of Cumberlands, 308 S.W.3d at 680, such as private elementary, middle, or high schools "controlled by any church or sectarian denomination." Section 7; see Bush, 886 So.2d at 357-61.
C. Americans United, Zelman, and Colorado Christian University
1140 There are three cases at the core of the contention that the express language of section 7 does not control the outcome here. I do-not believe that these cases dictate such a conclusion, and I -think that there are strong and principled reasons for distinguishing them, I address them in the following order:; Americans United for Separation of Church and State Fund v. State, 648 P.2d 1072 (Colo,1982); Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir.2008).
*8601. Americans United
a. Interpretation of Section 7
T141 The supreme court observed in Americans United that, when "interpreting the Colorado Constitution ... we cannot erode or undermine any paramount right flowing from the First Amendment." Americans United, 648 P.2d at 1078. I read this statement as being no more than the important, but unremarkable, recognition that see-tions of a state constitution cannot eliminate the protections of the First Amendment. See Curious Theatre Co., 220 P.3d at 551.
[142 However, once that principle is understood and followed, the supreme court also made clear that the boundaries of seetion 7 are not the same as those of the First Amendment. Rather, the court stated the opposite. It recognized that, although seetion 7 "address[es] interests not dissimilar in kind to those embodied" in the Free Exercise and Establishment Clauses, "First Amendment jurisprudence" is not "necessarily determinative of state constitutional claims," although such jurisprudence "cannot be totally divorced from the resolution of these claims." Americans United, 648 P.2d at 1078. Thus, "resolution of issues under [seetion 7] ultimately requires analysis of the text and purpose of that section." Conrad v. City & Cnty. of Denver, 656 P.2d 662, 667, 671 (Colo.1982) (emphasis supplied) (describing the court's analysis of the scope of the Preference Clause of Colo. Const. art. II, § 4, which addresses religious freedom); see also Conrad v. City & Cnty. of Denver, 724 P.2d 1309, 1316 (Colo.1986) ("[UJnder certain cireamstances we could find a violation of the Preference Clause [of Colo. Const. art. II, § 4], where, under the same or similar factual cireumstances, the United States Supreme Court had declined to find a violation of the Establishment Clause.").
143 As I see it, the text and purpose of section 7 are significantly different from the text and purpose of the Establishment Clause.
b. - Universities and Colleges vs. Elementary, Middle, and High Schools
T144 Our supreme court held in Americans United that a statutory scheme for the distribution of grants to private and sectarian colleges was, as pertinent here, constitutional under section 7.
T 145 However, the supreme court carefully qualified this holding, stating that it was based on "significant differences between the religious aspects of church-affiliated institutions of higher education, on the one hand, and parochial elementary and secondary schools on the other." Americans United, 648 P.2d at 1079. The court quoted Tilton v. Richardson, 403 U.S. 672, 685-86, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (plurality opinion), as the rationale for this distinction.
The "affirmative if not dominant policy" of the instruction in pre-college church schools is "to assure future adherents to a particular faith by having control of their total education at any early age" .... There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination.... The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations. Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom and seek to evoke free and critical responses from their students.
Americans United, 648 P.2d at 1079.
"[ 146 The supreme court repeated this distinction when specifically addressing the constitutionality of the statute under section 7.
[The financial assistance is available only to students attending institutions of higher education. Because as a general rule religious indoctrination is not a substantial purpose of sectarian colleges and universities, there is less risk of religion intruding into the secular educational function of the institution than there is at the level of parochial elementary and secondary education.
Id. at 1084.
J 147 The distinction between colleges and universities, on the one hand, and elementa*861ry, middle, and high schools, on the other hand, in cases involving the establishment of religion has been reinforced in contexts analogous to the one at issue here. For example, in Santa Fe Independent School District v. Dos, 530 U.S. 290, 120 S.Ct. 2266, 147 LEd.2d 295 (2000), the United States Supreme Court held that school-sanctioned prayers at a public high school football game were unconstitutional under the Establish ment Clause. The Court observed that "adolescents are often susceptible to pressure from their peers toward[ ] conformity, and that the influence is strongest in matters of social convention." Id. at 311-12, 120 S.Ct. 2266 (quoting Lee v. Weisman, 505 U.S. 577, 593, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992)).
11 148 In Tanford v. Brand, 104 F.3d 982, 985-86 (7th Cir.1997), the Seventh Circuit Court of Appeals held that a short, nonsectarian prayer and benediction offered at a university graduation ceremony did not violate the Establishment Clause. The court's rationale was, at least in part, based on its observation that university students are more mature than younger students, and they are thus less likely to compromise their principles. See also Widmar v. Vincent, 454 U.S. 263, 274 n. 14, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) ("[University students] are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion."); Chaudhuri v. Tennessee, 180 F.3d 232, 289 (6th Cir.1997) ("Theh[ United States] Supreme Court has always considered the age of the audience an important factor in the analysis [of Establishment Clause casesl."); cf. Morse v. Frederick, 551 U.S. 393, 410, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) ("The [Free Speech Clause of the] First Amendment does not require schools to tolerate at school events student expression that contributes to [the dangers of illegal drug use)."); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) ("[Elducators do not offend [the Free Speech Clause of] the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so 'long as their actions are reasonably related to legitimate pedagogical concerns.").
2. Zelman
1149 Zelman held that an Ohio scholarship program that provided public money as scholarships to students who elected to attend religiously affiliated private schools did not violate the Establishment Clause. The majority reasoned that the program was neutral toward religion; that private parental choice, not school district choice, routed the scholarship money to the religiously affiliated private schools; and that all schools in the district, public and private, could participate in the program. Zelman, 536 U.S. at 662-63, 122 S.Ct. 2460. f
" 150 Zelman does not control the outcome here because it only analyzed the program under the Establishment Clause. It obviously did not mention section 7, and it did not address the effect that specific language, such as that found in section 7, would have on its analysis. For these reasons, Zelman is neither dispositive of, nor persuasively helpful in, figuring out how section 7 should be read.
Further, Zelman did not hold that the Ohio scholarship program was mandated by the Establishment Clause. Rather, the , Supreme Court concluded that the Establish ment Clause did not prohibit the program. Thus, Zeiman leaves open the question © whether a state constitutional section can prohibit such a program.
1152 Moreover, I think that the Choice Scholarship Program suffers from fundamental defects that the programs examined in Zelman and Americans United did not display.
1158 For example, parental choice is restricted. "[OJnce a pupil has been accepted into a qualified school under [the] program, the parents ... have no choice; they must endorse the check to the qualified school." Cain, 220 Ariz. at 83, 202 P.3d at 1184.
1154 Second, focusing on parental choice does not, as a matter of state constitutional law, sufficiently ameliorate other problems associated with the program. As Justice Breyer pointed out in his dissent in Zelman, 536 U.S. at 728, 122 S.Ct. 2460, such focus does not consider the interests of those tax*862payers who do not want to pay for the religious education of children. And it says nothing about the interests of the adherents of minority religions who are too few to build their own schools.
(155 Third, students who participate in the program must be accepted by two schools, the private school and the Choice Scholarship School, which the school district describes as a charter school. Even though charter schools must be "public, nonsectarian, nonreligious, non-home-based school[s] which operate[ ] within a public school district," § 22-80.5-104(1), C.R.8.2012, the manner in which the Choice Scholarship School is operated demonstrates that the school district is significantly entangled with private religious schools. Although students in the program attend private schools, they are counted as part of the school district's enrollment for purposes of receiving "per pupil" revenue from the state. Not every school in the school district participates in the program. The school district actively recruited some of the private religious schools that participate in the program, and some schools in the program are not in the district.
3. Colorado Christian University
156 Colorado Christian University involved the same statutory scholarship program that our supreme court analyzed in Americans United. Relying on precedent from the United States Supreme Court, our supreme court concluded in Americans United that one of the reasons that the statute did not violate the Establishment Clause was because it permitted students attending "see-tarian" schools to obtain scholarships, but it denied scholarships to students attending "pervasively sectarian" schools. Americans United, 648 P.2d at 1079-81, 1083-84.
T157 The Tenth Cireuit held that the distinction between "sectarian" and "pervasively sectarian" schools violated the Establishment Clause by "expressly discriminat[ing] among religions" in a manner that involved "unconstitutionally intrusive scrutiny of religious belief and practice." Colorado Christian University, 534 F.3d at 1250.
We are not bound by the Tenth Circuit's décision. Carter v. Brighton Ford, Inc, 251 P.3d 1179, 1182 (Colo. App.2010). More importantly, I respectfully submit that the distinction between sectarian and pervasively sectarian is a red herring in this case. The fulcrum on which the holding in Colorado Christion University balanced was discrimination among religions, based on a distinction between sectarian and pervasively sectarian schools. Colorado Christian University, 534 F.3d at 1257-60. My reading of section 7 is that it denies funding to all private religious schools, and that, as a result, (1) there is no possible discrimination resulting in some private religious schools receiving funding and others not, see id. at 1258; and (2) there is no requirement for government to engage in the sort of "intrusive serutiny" into the particulars of "religious belief and practice," see id. at 1261-66.
159 In my view, section 7 does not focus on differences among religious doctrines, but on whether the controlling entity is any church or sectarian denomination. Indeed, I think that the Tenth Cireuit agrees with this analysis. Colorado Christian University recognizes that section 7 "makes no distinetion among religious institutions on the basis of the pervasiveness of their sectarianism." Id. at 1268. As a result, the "exclusionary provisions of the statute," which were based on the distinction between sectarian and pervasively sectarian institutions, are "a square peg with respect to the ... round hole" of section 7. Id.
. £160 It is easy enough, in my view, to determine whether the controlling entity is any church or sectarian denomination. This analysis does not require making the intrusive inquiries into the particulars of religious belief and practice that are necessary to determine whether an institution is sectarian or pervasively sectarian. Rather, it focuses on much broader, much less intrusive questions. For example, how does the entity refer to itself? Does it define its school, or the students who attend the school, in terms of religion? See Mitchell v. Helms, 530 U.S. 793, 845, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (O'Connor, J., concurring). Does it put its school to religious uses, such as teaching religious doctrine and engaging in religious indoctrination? See Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406, *863424-25 (8th Cir.2007). Does it claim that the school is exempt from property taxation under Colorado Constitution article X, section 57 See Maurer v. Young Life, 779 P.2d 1317, 1333 n. 21 (Colo.1989) ("Avoiding a narrow construction of property tax exemptions based upon religious use ... serves the important purpose of avoiding any detailed governmental inquiry into or resultant endorse ment of religion that would be prohibited by the [Elstablishment [Clause. ..."). The inquiry would simply "consider( ] the character of the [school's] owner and ... the uses of the [school's] propert{[y]." Id. at 1331.
1] 161 I would, therefore, conclude that Colorado Christian University is simply inappo-site.
III. Section T's Origins
162 One of the contentions here is that section 7 was brewed in a cauldron of anti-Catholie prejudice that was bubbling throughout the United States at the time that Colorado's constitutional convention was held. The principal basis for this contention is the controversy surrounding the so-called Blaine Amendment, a proposed, but ultimately defeated, amendment to the United States Constitution. But before I explain the Blaine Amendment, I must put it in context. And to put it in context, I must provide a short history of public schools in our country.
A. Public Schools in the Nineteenth Century
{163 The concept. of nonsectarian public schools, called "common schools" when they were originally introduced, was a product of early nineteenth century American leaders who thought that "the education of children was indispensable for the stability and ultimate success of the new republic." Steven K. Green, The Insignificance of the Blaine Amendment, 2008 BY.U. L.Rev. 295, 301 (2008). Because "[plublic schools were seen as indispensable for inculcating the civic, moral, and religious virtues upon which the republic depended," there was a consensus for about the first half of the nineteenth century that the public school curriculum should contain a religious component. Id.
164 This component was primarily Protestant, but, as the nineteenth century unfolded, "in order to ensure that the schools were accessible to children of all faiths, the curriculum would deemphasize religious doctrine out of respect for liberty of conscience and the theological differences of various denominations." Id. at 302-03. The concept of "nonsectarian" public schools was designed to defuse "conflict among Protestant sects and to attract children excluded from the Protestant denominational schools." Id. at 304.
£165 At the beginning of the nineteenth century, there was little conflict between Catholics and Protestants over the religious component of public school curriculums. The American Catholic population was relatively small,. Id. However, as increasing numbers of Catholic and Jewish immigrants came to this country, attributes of the religious component of the public school eurrieu-lum became controversial. "[TJhe Protestant prayer, Bible reading, hymn singing, and catechism found in books such as The McGuffey Reader became offensive to Catholics and the small number of American Jews." Id. The King James Version of the Bible was read in the common schools, which affronted Catholics. Noah Feldman, Non-Sectarianism Reconsidered, 18 J.L. & Pol. 65, §4-85 (2002). >
166 Catholics asked that the Bible not be read in public schools. Protestant nativists replied that Catholies wanted schools to be "irreligious." Id. at 86. There were significant expressions of anti-Catholic sentiment and some anti-Catholic violence. Id. This already troublesome situation was exacerbated by the emergence of the anti-Catholic "Know-Nothing" movement in the 1850s. Meir Katz, The State of Bloines A Closer Look at the Blaine Amendments and Their Modern Application, 12 Engage: J. Federalist Soc'y Prac. Groups 111, 112 (2011); see also Zelman, 536 U.S. at 720-21, 122 S.Ct. 2460 (Breyer, J., dissenting) (describing conflicts between Catholics and Protestants).
£167 Partly in reaction to these expressions and this violence, Catholics established their own schools, which were "profoundly sectarian and exclusionary." Feldman, 18 J.L, & Pol., at 86, 88-91, The Catholic Church argued that, if public tax money was to be allocated to public schools that read a - *864Protestant Bible and taught Protestant principles, then Catholic schools should also be funded with public tax money. Katz, 12 Engage: J. Federalist Soc'y Prac. Groups at 112.
«[ 168 There were also people who believed that no religious schools should be funded with public money. This "no-funding" concept
arose out of several complementary rationales. Foremost, public school officials sought to prevent the division of school funds in order to secure the financial stability of the nascent common schools. In the early nineteenth century, public commitment to a system of public education did not come naturally and had to be earned. Competing educational options stood in the way of gaining this public commitment. Closely related, public officials viewed the no-funding principle as a means to standardize education and to ensure financial accountability.
Green, 2008 BY.U. LRev. at 810 (footnote omitted).
T 169 A de-emphasis of the Protestant religious component in public schools began with reformers like Horace Mann. He encouraged a "shift from instruction in nondenominational Protestantism toward an emphasis on universal religious values." Green, 2008 B.Y.U. L.Rev. at 305. Although Mann believed that schools should teach the basics of Christianity, he thought that schools should go no further "out of respect for freedom of conscience." Id. Mann's reforming instincts were not motivated by anti-Catholicism. Rather, he thought that, because Catholics and Protestants were Christians, both groups should participate in public schools instead of building their own school systems. Id. at 806-07.
T170 A second reform movement began after the Civil War. It "sought to make public education not simply nondenominationally religions but truly nonsectarian, in that only universally acknowledged moral principles would be taught and religious devotion eliminated." Id. at 307 (emphasis in original). One way in which this goal would be accomplished would be by eliminating the reading of the Bible from public schools. Id. at 807-09. .
171 Thus, "educational leaders and public officials increasingly came to identify the no-funding principle with principles of religious non-establishment." Id. at 310. And these leaders and officials saw several ways in which funding religious schools would violate the concept of non-establishment: such funding would "violate[ ] rights of conscience to force one person to pay for another's religious instruction; ... would bring about religious dissension over the competition for funds; and ... would result in ecclesiastical control over public monies." Id.
4 172 In summary,
[tlhe Nation's rapidly developing religious heterogeneity, the tide of Jacksonian democracy, and growing urbanization soon led to widespread demands throughout the States for secular public education. At the same time strong opposition developed to the use of the States' taxing powers to support private sectarian schools. Although the controversy over religious exercises in the public schools continued into [the Twentieth Century], the opponents of subsidy to sectarian schools had largely won their fight by 1900. In fact, after 1840, no efforts of sectarian schools to obtain a share of public school funds sue-ceeded. Between 1840 and 1875, 19 States added provisions to their constitutions prohibiting the use of public school funds to aid sectarian schools, and by 1900, 16 more States had added similar provisions. In fact, no State admitted to the Union after 1858, except West Virginia, omitted such provision from its first constitution.
Lemon v. Kurtzman, 403 U.S. 602, 646-47, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971) (Brennan, J., concurring in part and dissenting in part) (citations and footnote omitted).
1 173 With this understanding of the context, I turn to the controversy surrounding the proposed Blaine Amendment.
B. The Blaine Amendment
174 By 1875, many members of the Republican Party thought their party was in political trouble. The nation had tired of the failures associated with Reconstruction and with the corruption in President Grant's administration. Democrats had gained control *865of the House of Representatives in 1874, and it appeared that a Democrat might win the White House in 1876, with the assistance of the reconstructed, and strongly Democratic, southern states. Republicans "needed an issue," and they found it in the controversy over the funding of public schools. Green, 2008 B.Y.U. L.Rev. at 321-22.
1 175 In September 1875, President Grant, a Republican, gave a speech in which he stated that church and state should be kept "forever separate" and that "not one dollar" should be "appropriated in support of sectarian schools." Feldman, 18 J.L. & Pol. at 98 (quoting Army of the Tennessee-A Speech by Gen. Grant, N.Y. Daily Tribune, Oct. 1, 1875, at 1).
1176 The President followed this speech with an address to Congress in which he proposed a constitutional amendment that would require "each of the several States to establish and forever maintain free public schools adequate to the education of all the children." Katz, 12 Engage: J. Federalist Socy Prac. Groups at 112 (quoting 4 Cong. Ree. 175 (1875). This amendment would have also barred the use of "any school funds, or school taxes ... for the benefit or in aid ... of any religious sect or denomination." Id.
1177 James G. Blaine, the Republican Speaker of the House of Representatives, sponsored the amendment that the President had proposed. His amendment was easily approved by the House of Representatives, but it died in the Senate, where it failed to muster the necessary two-thirds majority. Id.
T178 The amendment was attacked as being anti-Catholic, and some of its supporters made unambiguously anti-Catholic statements. For example, at least one senator argued that the amendment was necessary because the Catholic Church discouraged liberty of conscience. Another senator countered that the amendment was motivated by religious bias against Catholics. Id. A plurality of the United States Supreme Court has stated that consideration of the Blaine Amendment "arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that 'sectarian' was code for 'Catholie'" Mitchell, 530 U.S. at 828, 120 S.Ct. 2530,
179 Some commentators argue that anti-Catholic prejudice, which undoubtedly existed and which undoubtedly still exists in the minds of some people, was the sole, or at least the primary, motivating factor for the Blaine Amendment. E.g., Katz, 12 Engage: J. Federalist Soc'y Prac. Groups at 111-12; Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Seope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol'y 551, 565-78 (2008); Joseph P. Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv, J.L. & Pub. Pol'y 657, 659 (1998).
[ 180 However, other commentators take a more nuanced view, arguing that there was much more going on with the Blaine Amendment than anti-Catholic bigotry. For example, one professor argues that the Blaine Amendment arose as "part of a larger controversy over the responsibility and role of government in public education"; that this "larger controversy" involved people of all faiths, who struggled over whether public education should be "secular, nonsectarian, or more religious"; and that "[ildentifying a singular motive for the Blaine Amendment is impossible." Steven K. Green, "Bad History": The Lure of History in Establishment Clause Adjudication, 81 Notre Dame L.Rev. 1717, 1748 (2006); see also, eg., Steven K. Green, "Blaming Blaine": Understanding the Blaine Amendment and the "No-Funding" Principle, 2 First Amend. L.Rev. 107, 113-14 (2008); Jill Goldenziel, Blaine's Name in Vain? State Constitutions, School Choice, and Charitable Choice, 88 Den. U.L.Rev. 57, 64 (2005) ("Blaine maintained that he was not anti-Catholic, and no evidence suggests that he had any personal animosity toward Catholics, Blaine's mother was Catholic and his daughters were educated in Catholic schools. Publicly, Blaine maintained that the amendment was merely meant to settle the 'School Question, the day's most heated political issue."); Feldman, 18 J.L. & Pol. at 115 ("Certainly no attempt to make sense of the legacy of non-sectarianism ought to ignore the strains of anti-Ca*866tholicism that run through its reception. But one of [the author's purposes] has been to consider another, parallel legacy of nonsec-tarianism-particularly, the aspiration to imparting shared moral values through the identification of common foundational commitments."). i
[ 181 And there were those who supported the Blaine Amendment because they thought it would defuse the conflict between Protestants and Catholics over school funding that had been simmering for decades. For example, the Democratic New York Tribune observed that .
[tlhinking men of all parties see much more to deplore than to rejoice over, in the virulent outbreak of discussions concerning the churches and the schools, and welcome any means of removing the dangerous question from politics as speedily as possible, .
Green, 2008 B.Y.U. L.Rev. at 328 (citing N.Y. Trib., Dec. 15, 1875, at 4). The Republican New York Times expressed similar sentiments. Id. (citing N.Y. times, Dee. 15, 1875, at 6). ~ +
C. Colorado's Constitutional Convention
{182 In 1875, Congress passed an enabling act that, in section 1, authorized inhabitants of the Territory of Colorado to "form ... a state government ... which, when formed, shall be admitted into the Union." Proceedings of the Constitutional Convention 9 (Smith-Brooks Press, State Printers 1907). As pertinent here, the enabling act required that the drafters of Colorado's Constitution
provide by an ordinance irrevocable without the consent of the United States and the people of [the State of Colorado] ... [that perfect toleration of religious sentiment shall be secured, and no inhabitant of [the State of Colorado] shall ever be molested in person or property, on account of his or her mode of religious worship.
Id. at 10. The constitutional convention passed such an ordinance on the first day that it met. Id. at 15.
{183 The constitutional convention in which the Colorado Constitution was drafted was in session intermittently between December 20, 1875, and March 15, 1876. Id. at 15, 709, 716-17. There were thirty-nine delegates, twenty-four Republicans and fifteen Democrats. Dale A. Oesterle and Richard B. Collins, The Colorado State Constitution: A Reference Guide 6 (Greenwood Press 2002).
{184 As relevant here, the delegates engaged in three "heated" debates over religious matters. Id. at 7. Should property owned by religious institutions be taxed? Should God be mentioned in the constitution's preamble? Should public school funds be allocated to private religious schools?
185 The issue of taxation of churches eventually resulted in a moderate compromise: "unless the legislature acted to the contrary, lots with buildings used solely for religious worship, for schools, and for charitable purposes, as well as cemeteries not used for profit, [won] tax immunity." Donald W. Hensel, Religion and the Writing of the Colorado Constitution, 80 Church History: Studies in Christianity and Culture, Issue 8, 849, 352 (Sept.1961). The compromise was embedded in Colorado Constitution, article X, section 5.
~€186 The issue of mentioning God in the Preamble also resulted in a compromise, with Catholics and Protestants cooperating. Hen-sel at 356, 858. As a result, the Preamble refers to the "Supreme Ruler of the Universe."
[187 Turning to the issue of funding religious schools with public money, early in the: constitutional convention, on January 5, 1876, a resolution was referred to the Committee on Education, which contained the concepts, cand almost all the language, that became section 7. Proceedings of the Constitutional Convention at 48. >
1 188 Throughout the convention, members of the public presented proposals to the delegates in the form of petitions. Some of these petitions requested a complete separation of church and state in public schools. Id. at 83-84, 277, 278. Groups of Protestant churches submitted petitions that made various requests, including that public schools remain "nonsectarian"; that the Bible should be read to students; or that the Bible should neither be "excluded from nor forced into" public schools. Id. at 87, 118, 261.
*867Catholie Bishop Joseph Machebeuf twice addressed the convention in writing. The first petition that he submitted suggested that, if the state constitution denied Catholic schools public funds, Colorado's Catholics would feel "bound in conscience" to oppose the constitution's ratification. Id. at 285.
11190 According to one commentator, Bishop Machebeuf "opened the door to anti-Cath-olice fulminations by sending [this] rather tactlessly-worded resolution." Hensel at 858.
It was not convention action but Bishop Machebeuf's participation which evidently publicized the issue throughout the territory. Had it not been for his demands, an editor asserted, the delegates would have ignored the question.
Id. at 854.
T191 Bishop Machebeuf's second written presentation sought to mollify the delegates. He wrote of anti-Catholic prejudice, and he apologized for any "threats and aggressive tone" that the delegates may have perceived in his first submission. Proceedings of the Constitutional Convention at 330-82. However, he did not back away from his argument that Colorado's Constitution should not prohibit the state from funding Catholic schools. Id.
€192 Bishop Machebeuf's written comments expressed a sincere, important, and strong commitment to opposing anti-Catholic bigotry. However, there is evidence that suggests that he was also motivated by financial considerations.
Since the enabling act set aside two see-tions in every township to support the public schools, one-eighteenth of the territory's public lands was at stake. By this same act such land could not be sold for less than $2.50 an acre. Even with much of the public land depleted by 'sale, the value of 'the school lands was at least $5,000,000, an unusually tempting prize.
Hensel at 353.
1193 There was immediate and strong re- ' action to the Bishop's comments. One commentator expressed the opinion that Bishop Machebeuf "imperiled the constitution's ratification with his intimidations." Id; at 854. An editor of a Denver newspaper "wondered what would happen if the Baptists, Methodists, or Jews threatened to defeat the constitution unless it allowed their dogmas to be taught at public expense." Id. ©
1194 A motion to strike the entire text of what was to become section 7 failed, three votes in favor, twenty-four votes against. The language was then approved, twenty-five votes in favor, three votes against. Proceedings of the Constitutional Conventwn at 357-58.
195 The delegates did not insert language in the constitution that directly ad- . dressed the reading. of the Bible in public schools. However, they
rejected the assumption that Bible-reading was indispensable evidence that the schools were moral institutions. A citizen put it simply:; the Bible could take care of itself and need no "legislation to bolster it up." Another observer applauded the decision to "let religion be taught in the family circle, in the church, and in the Sunday school."
Hensel at 856.
.. 1196 When the delegates finished their work in March 1876, they had
decided that parochial schools could not share in the public school fund, and that « public schools could not teach sectarian religious dogma. On these two issues alone the convention refused to compromise contending factions, The Protestant majority saw to that. To strengthen the separation of church and state, Coloradans had to pay an initial price of animosity to avoid later and more corrosive bitterness.
Id.
1197 The ratification vote was held on July 1, 1876. Two days before the vote, “Cathohcs conducted a pro-constitution rally in Denver." Donald Wayne Hensel, A History of the Colorado Constitution in the Nime-teenth Century, at 224 (unpublished doctoral thesis, University of Colorado 1957).
1 198 The final vote tally was 19,505 votes: 15443 Coloradoans voted for ratification; 4,062 voted against it. Elmer Herbert Meyer, The Constitution of Colorado, The Towa Journal 271 (State Historical Society of Towa, Apr. 1904), available at wuww.archive.org/ stream/publicarchivesof0Opaxsrich/public archivesof0Opaxsrich_djvu.txt. On August 1, *8681876, President Grant issued a proclamation stating that "the admission of the State of Colorado into the union is now complete." Proceedings of the Constitutional Convention at 785.
199 Section 7 was not, and is not, unique. Although different commentators produce different figures, the constitutions of between thirty-five and forty states contain similar sections limiting or prohibiting funding of religious schools. Green, 2008 B.Y.U. L.Rev. at 327. Of these sections, seventeen were in place before the controversy over the Blaine Amendment erupted. These could have "easily served as models for the post-Blaine provisions." Id. at 828; see also Blaine's Name in Vain?: State Constitutions, School Choice, and Charitable Choice, 88 Den. U.L.Rev. at 66-70. The delegates to Colorado's constitutional convention were aware of at least some of these other sections. Hensel at 854.
IV. Free Exercise Clause and Equal Protection Attacks on Section 7°
T200 Some of the parties supporting the sehool district's position contend that section 7 was a product of anti-Catholic prejudice. Citing cases such as Romer v. Evans, 517 U.S. 620, 633-43, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), and Church of Lukumi Babalu Aye, Inc. v. City of Higleah, 508 U.S. 520, 540, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), they argue that this constitutional amendment imposes a disadvantage on religion that was "born of animosity toward the class of persons affected." Romer, 517 U.S. at 634, 116 S.Ct. 1620. They submit that section 7 violates the Free Exercise and the Equal Protection Clauses because its drafters, either overtly or covertly, wrote section 7 with the reprehensible intent of "oppress[ing]l a religion [and] its practices." Church of Lukumi Babalu Aye, 508 U.S. at 547, 113 S.Ct. 2217. They urge that we should foeus on the "historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmak-ing body." Id. at 540, 118 S.Ct. 2217.
1201 I respectfully disagree with these arguments for two reasons. First, when the language of constitutional sections is clear, as is the case with section 7, I question the appropriateness of proceeding further analytically.. Second, I do not read the historical record in Colorado as clearly supporting the thesis that section 7 was the direct, ineluctable, and sole product of anti-Catholic animosity.
4 202 It is well-established law in Colorado that, if the language of a constitutional seetion is clear and unambiguous, we do not resort to other modes of interpretation to determine its meaning. See Rodrigues, 112 P.3d at 696. And I cannot read the plain language of section 7 as espousing a narrowly anti-Catholic view. Rather, I read the language as having a different, and broader, seope: it applies to all religious institutions. As our supreme court observed in People ex rel. Vollmar v. Stanley, 81 Colo. 276, 287, 255 P. 610, 615 (1927), overruled by Conrad, 656 P.2d at 670 n. 6,
[slectarian meant, to the members of the [constitutional] convention and to the electors who voted for and against the «Constitution, "pertaining to some one of the various religious sects," and the purpose of ... section 7 was to forestall public support of institutions controlled by such sects.
1203 Section 7 refers to "amy church or sectarian society"; to "amy school [or] academy ... controlled by any church or sectarian denomination whatsoever"; and to "any church, or for any sectarian purpose." (Emphasis supplied.) Even assuming, for the purposes of argument, that the use of the word. "sectarian" refers either to the teachings of the various Protestant sects, see Green, 2008 B.Y.U. L.Rev. at 304, or that it is code for "anti-Catholic," see Mitchell, 530 U.S. at 828, 120 S.Ct. 2530, section 7 accompanies the word "sectarian" with much broader words: , "denomination," "church," "any," and "whatsoever." And section 's prohibition of distributions to all religious schools controlled by churches or sectarian denominations is categorical. A school dis-triet cannot "ever" make an appropriation; it cannot pay from "any public fund or money's whatever, [or] anything in aid."
*869{204 And, if we are to look to the statements, events, and history behind these constitutional sections to determine whether they were the products of anti-Catholic animus, see Church of Lukumi Babalu Aye, 508 U.S. at 540, 113 S.Ct. 2217, to what do we look, and upon whose intent do we focus? This is a difficult, perhaps impossible, task in a context like the one we face here. See id. at 558, 118 S.Ct., 2217 (Scalia, J., concurring) ("[It is virtually impossible to determine the singular 'motive' of a collective legislative body, and this Court has a long tradition of refraining from such inquiries." (citations omitted)).
205 Are we concerned with the intent of the delegates at the convention? At least as far as I can tell, the historical record of Colorado's constitutional convention does not contain their speeches or their verbatim or summarized comments about the substance of section 7. If we do not know their thoughts, at least as expressed by their words, how can we tar all, or many, or a few, of them with the brush of religious bias?
1 206 Or are we to determine the intent of the voters who ratified the Colorado Constitution? -What was their understanding of section 7? See Rodrigues, 112 P.3d at 696. Did all 15,4483 Coloradans who voted for ratification think that section 7 discriminated against Catholics, and did they wish to achieve such discrimination? Did all 4,062 Coloradans who voted against ratification oppose it because they understood section 7 to be the product of bigotry? We do not know.
1207 And even if a historical inquiry is necessary to determine whether section 7 was produced by "animosity toward the class of persons affected," see Romer, 517 U.S. at 634, 116 S.Ct. 1620, I think that the historical record indicates that many forces were at work during our constitutional convention.
€208 Although the congressional debate about the Blaine Amendment occurred essentially contemporaneously with our constitutional convention, that debate concerned much more than religious bigotry. How can Republican political interests best be preserved against growing Democratic power? How should public schools be funded? Should the evolution of public schools toward becoming entirely secular continue? Is it important to have public schools that teach common values? Is it important to keep public schools free of religious control and churches free of government control? See Lemon, 403 U.S. at 646-47, 91 S.Ct. 2125 (Brennan, J., concurring in part and dissenting in part); "Bad History": The Lure of History in Establishment Clause Adjudication, 81 Notre Dame L.Rev. at 1748; "Blam ing Blaine": Understanding the Blaine Amendment and the "No-Funding" Principle, 2 First Amend. L.Rev. at 118-14; Feld-man, 18 J.L. & Pol. at 115.
1209 It is undeniable that anti-Catholic prejudice existed in Colorado at the time of our constitutional convention, and that there was friction between Catholics and Protestants. See Proceedings of the Constitutional Convention at 3830-32 (written address of Bishop Machebeuf)}; The Colorado State Constitution: A Reference Guide at 7T. However, the following factors convinee me that it is not clear that such bias was the sole motivation, or even the primary driving force, behind the drafting and ratifying of section 7.
210 The congressional enabling act that authorized the citizens of Colorado to proceed to become a state expressly required that any state constitution contain an ordinance stating that "perfect toleration of religious sentiment shall be secured, and no inhabitant of [the State of Colorado] shall ever be molested in person or property, on account of his or her mode of religious worship." Proceedings of the Constitutional Convention at 10.
$211 A proposal containing the language that became section 7 was submitted by a subcommittee to the convention's delegates before the records of the convention refer to any dispute about its subject matter. See id. at 48. Section Ts language is substantially the same as the language contained in the initial proposal.
[212 The various petitions concerning the issue of funding religious schools espoused substantially different views. These included petitions from Protestants, Catholics, and those who expressed a desire for secular schools. See The Colorado State Constitution: A Reference Guide at 7.
*8701 218 The language of section 7 applies to all religious institutions, not only the Catholic Church. It uses words such as "sectarian," "church," "denomination," "any," and "whatsoever,."
[ 214 The delegates decided against taxing all church property. They did not vote for taxing Catholic Church property.
215 Although there had historically been conflict between Catholics and Protestants over which version of the Bible should be read in public schools, see Feldman, 18 J.L. & Pol. at 84-85, the delegates did not mandate that the King James Version should be read in public schools, see Hensel at 356.
1216 There is evidence to suggest that Bishop Machebeuf fanned the flames of the dispute between Catholics and Protestants in the course of the convention; the dispute might well not have arisen had he not attempted to "intimidate" the delegates; and, although he was rightfully concerned about religious bias against Catholics, he was also motivated by a desire to gain access to the public school fund. The Colorado State Constitution: A Reference Guide at T;, Hensel at 353-54. Further, shortly before the ratification vote, at least some Catholics participated in a rally in support of the constitution's ratification. Hensel, A History of the Colorado Constitution in the Nineteenth Century, at 224.
[217 One commentator has expressed the opinion that, although there had been disagreements between Catholics and Protestants, the outcome of such friction was eventually salutary. "To strengthen the separation of church and state, Coloradans had to pay an initial price of animosity to avoid later and more corrosive bitterness." Hensel at 356; see also Green, 2008 B.Y.U. L.Rev. at 328 (quoting comments from New York City newspaper editors making the same point about the Blaine Amendment).
' 218 Section 7 was passed during a time of educational reform, in which "educational leaders and public officials increasingly came to identify the no-funding principle with principles of religious nonestablishment." Green, 2008 B.Y.U. L.Rev. at 807-09.
219 Although the numbers may vary depending on who is doing the counting, see id. at 827, many other state? constitutions contain sections similar to section 7. A goodly portion of these preceded the controversy over the Blaine Amendment. It is difficult to believe that so many states, for over more than one hundred years, see Lemon, 403 U.S. at 646-47, 91 S.Ct. 2125 (Brennan, J., concurring in part and dissenting in part), would deliberately enshrine anti-Catholic prejudice in their constitutions. See University of Cumberlands, 308 S.W.3d at 681-82 (Ken-tuecky constitutional section was not an anti-Catholic "Blaine amendment"); Bush, 886 So.2d at 351 n. 9 ("[Tlhere is no evidence of religious bigotry relating to Florida's no-aid provision."); Blaine's Name in Vain?: State Constitutions, School Choice, and Charitable Choice, 83 Den. U.L.Rev. at 98 ("Analyzing the history of eight so-called Blaine Amendments [including section 7] does not reveal them to be legislatively enacted bigotry.").
220 As a result, I would reject the arguments that section 7 violates either the Free Exercise or Equal Protection Clauses. See Wirzburger, 412 F.3d at 275-85 (Massachusetts constitutional section does not violate Free Exercise or Equal Protection Clauses); Eulitt, 386 F.3d at 353-56 (Maine statute does not violate Free Exercise or Equal Protection Clauses); University of Cumberlands, 308 S.W.3d at 679-82 (Kentucky constitutional section does not violate Free Exercise or Equal Protection Clauses); Anderson, 895 A.2d at 959-61 (Maine statute does not violate Free Exercise or Equal Protection Clauses); Bush, 886 So.2d at 362-66 (Florida constitutional section does not violate the Free Exercise Clause); Witters, 112 Wash 2d at 370-73, 771 P.2d at 1122-23 (Washington constitutional section does not violate Free Exercise or Equal Protection Clauses).
V. Conclusion
€ 221 Lest anyone believe that the position I espouse here is a "legalistic swipe at religion," see University of Cumberlands, 308 S.W.3d at 686 (Cunningham, J., concurring), I respectfully submit that the history of religious oppression and conflict throughout the course of our grand American experiment, see id. is a cautionary tale that should never be forgotten. "[Olur fundamental belief as a *871nation that religion and state should co-exist in harmony with each other, but along distinct and separate tracks" allows religion "to breathe free of the enervating drag of government regulation, taxation and control," 4d. at 687.
«[ 222 This religious freedom is, in my view, an admirable product of "the constitutional division of church and state" that has allowed
[rleligious schools [to bel free to exist and function in accordance to their own moral and theological dogma. This includes the right to restrict their memberships and their campus academia to strict, sometimes even unpopular, religious views and activities. When state involvement and support: begins to be part of their operations, this freedom goes away.
Id. at 688. Applying section 7 as written in this case would reduce the problems associated with funding private elementary, middle, and high schools that are controlled by any church or sectarian denomination "whatsoever," while carefully protecting the right of Colorado's citizens to exercise their religious conscience in their homes, churches, synagogues, temples, and private religious schools.
1223 We have, in the years since this nation was founded, become breathtakingly diverse in a religious sense. At least fifty-five major religious groups and subgroups now have roots 'here, and some of these groups contain sects that express enormously different beliefs. Zelman, 536 U.S. at 723, 122 S.Ct. 2460 (Breyer, J., dissenting). It is this diversity, I respectfully suggest, that most starkly points out the great risks in the school district program at issue here.
Behool voucher programs finance the religious education of the young,. And, if widely adopted, they may well provide billions of dollars that will do so. Why will different religions not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? Why will they not want to examine the implementation of the programs that provide this money-to determine, for example, whether implementation has biased a program toward or against particular sects, or whether recipient religious schools are adequately fulfilling a program's criteria? If so, just how is the State to resolve the resulting controversies . without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension?
Td. at 723-24, 1292 S.Ct. 2400.