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[...] This Article makes the unremarkable and conservative argument that the transfer of public funds to religious schools under Iowa’s education savings account program violates the Iowa Constitution’s compulsion guarantee.
We start by looking at the Iowa compulsion guarantee, including a review of the Iowa authorities which have construed it, the historical record and setting of its adoption, and the history of its New Jersey antecedent. We then introduce the education savings account mechanism by which Iowa’s religious schools stand to receive more than a third of a billion dollars annually by FY 2027. After that, we consider whether education savings account transfers of public funds to religious schools are constitutional under Iowa’s compulsion guarantee, specifically considering three questions framed by the relevant authorities: first, are the religious schools ministries and are their teachers ministers?; second, do the religious schools teach their students religion?; and third, are the religious schools pervasively religious? We then consider the application of the compulsion guarantee to the education savings account program in light of the Supreme Court’s ruling in Carson v. Makin. We conclude by asking where we go from here.
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William & Mary Bill of Rights Journal Volume 32 (2023-2024) Issue 3 Article 5 3-2024 Tax-Funded Education Savings Account Payments to Religious Schools Violate State Constitution Compulsion Guarantees: the Iowa Example Allan Walker Vestal Follow this and additional works at: https://scholarship.law.wm.edu/wmborj  Part of the Constitutional Law Commons, and the State and Local Government Law Commons Repository Citation Allan Walker Vestal, Tax-Funded Education Savings Account Payments to Religious Schools Violate State Constitution Compulsion Guarantees: the Iowa Example, 32 Wm. & Mary Bill Rts. J. 771 (2024), https://scholarship.law.wm.edu/wmborj/vol32/iss3/5 Copyright c 2024 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj TAX-FUNDED EDUCATION SAVINGS ACCOUNT PAYMENTSTO RELIGIOUS SCHOOLS VIOLATE STATE CONSTITUTIONCOMPULSION GUARANTEES: THE IOWA EXAMPLEAllan Walker Vestal*The right of a man to worship God or even to refuse to worshipGod . . . is as fundamental in a free government like ours as is theright to life, liberty, or the pursuit of happiness. . . . He has no right,however, to ask that the state . . . expend money acquired by publictaxation in training his children religiously. . . . To guard againstthis abuse, most of our states have enacted constitutional and statu-tory provisions forbidding . . . all use or appropriation of publicfunds in support of sectarian institutions. . . . In this state the Con-stitution . . . forbids . . . all taxation for ecclesiastical support.—Justice Silas Weaver for the Courtin Knowlton v. Baumhover1INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772I. IOWA’S COMPULSION GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776A. The Analyses of the Iowa Authorities Which Have Construed theCompulsion Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778B. The Historical Record and Setting of the Iowa Compulsion Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795C. The Origins of the Iowa Compulsion Guarantee . . . . . . . . . . . . . . . . . 801II. IOWA’S EDUCATION SAVINGS ACCOUNT PROGRAM . . . . . . . . . . . . . . . . . . 807A. Do Tax-Funded Education Savings Account Payments to ReligiousSchools Violate the Iowa Compulsion Guarantee? . . . . . . . . . . . . . . . 8111. Are Religious Schools Ministries and Are Their Teachers Ministers? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8122. Do the Religious Schools Teach Their Students Religion?. . . . . . 8213. Are the Religious Schools Pervasively Religious? . . . . . . . . . . . . 8234. Applying the Underlying Rationale. . . . . . . . . . . . . . . . . . . . . . . . 826* Dwight D. Opperman Distinguished Professor of Law Emeritus, Drake University LawSchool. I would like to thank my research assistants NaRayah Runyon and Karlie Reaganfor their work on this piece, Christoph Henkel and Mark Zaiger for their insightfulcomments, and Law School Professor of Law Librarianship Rebecca Lutkenhaus for hercreative assistance. I am grateful for the generous support of the John and Leslie FletcherEndowed Faculty Research Fund.1 166 N.W. 202, 207 (Iowa 1918).771772 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771III. THE CARSON V. MAKIN COMPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 833CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 834APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839A. STATE CONSTITUTION COMPULSION GUARANTEES . . . . . . . . . . . . . . . 839B. ACCREDITED 2022 NON-PUBLIC SCHOOLS IN IOWA . . . . . . . . . . . . . . . 842C. ACCREDITED 2022 NON-PUBLIC NON-RELIGIOUS SCHOOLS IN IOWA . . . 843INTRODUCTIONIn 1905, the school board for the Maple River community in Carroll County,Iowa, rented space for the public school in a building owned by Joseph Kuemper.2For the next decade, the public school operated in the rented building, using publicfunds from the school district.3It was all a sham. The space the school board rented for the public school was thesecond floor of an established Catholic school. The owner of the building, “JosephKuemper,” was really Father Kuemper, the priest of Maple River’s St. FrancisCatholic Church, just next door.4 The sole teacher employed by the school board forthe school, “Miss Martin,” was really Sister Estella of the Sisters of Charity.5 Thecourt described the program of the “public” school:From the beginning and for a period of more than nine years thestudy of the Catholic catechism and the giving of religiousinstruction were part of the daily program of instruction in bothrooms. The walls were hung with pictures of the Holy Virgin, ofChrist crowned with thorns, of the Crucifixion, and others allunmistakably appealing to Catholic sentiment, and the teacherswere invariably arrayed in the striking robes of their order.Every influence of association and environment, and of preceptand example, to say nothing of authority, were thus contrived tokeep those of Catholic parentage loyal to their faith and to biasin the same direction those of non-Catholic parentage.62 Id. at 203. Having secured space for the school, the board sold the old school building.Id.3 Id.4 Id. at 203–04. Today, the Catholic high school serving Carroll County is named inhonor of Father Kuemper. History & Identity, KUEMPER CATH. SCH. SYS., https://kuemper.org/history-identity [https://perma.cc/9MD7-3BVA] (last visited Mar. 4, 2024).5 Knowlton, 166 N.W. at 204. The court cited testimony that Sister Estella divided hersalary with the sister who taught in the other, admittedly religious, classroom in the building.Id. at 206.6 Id. at 204.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 773After almost a decade, with the cooperation of two members of the school board,7a taxpayer, Sheldon Knowlton, brought an action for injunctive relief, asserting:“That the defendant school directors have been, and are now, illegally and wrong-fully . . . appropriating and using the public school funds of such school district in theconduct and maintenance of a private parochial school. . . .”8 The district court foundfor the plaintiff “and entered a decree perpetually enjoining the defendants . . . fromusing or appropriating the moneys of the district to such end. . . .”9On appeal, the Iowa Supreme Court restated the underlying rationale for theconstitutional policy against using public funds to support religious instruction:If there is any one thing which is well settled in the policies andpurposes of the American people as a whole, it is the fixed and un-alterable determination that there shall be an absolute and un-equivocal separation of church and state and that our public schoolsystem, supported by the taxation of the property of all alike—Catholic, Protestant, Jew, Gentile, believer and infidel—shallnot be used directly or indirectly for religious instruction. . . .10The court condemned the use of public funds for religious activities: “In this state,the Constitution (article 1, § 3) forbids . . . all taxation for ecclesiastical support.”11In the context of education, the court was equally clear: “[A parent] has no right . . .to ask that the state . . . expend money acquired by public taxation in training his [orher] children religiously.”12In 2023, Carroll County, Iowa is served by the Kuemper Catholic schools, “apreschool through 12th grade school system . . . [t]he mission [of which] is to pro-vide excellent Catholic education of mind, body, and soul to empower all studentsto achieve to the best of their abilities in fulfillment of God’s call.”13 There are over7 Appellant’s Abstract of Record at 65–66, Knowlton v. Baumhover (Iowa 1915) [here-inafter Knowlton Appellant’s Abstract] (testimony of J.J. Egan) (“The complaining parties[before the school board] were Mr. Ralph, Sheldon Knowlton and Mr. Handley. . . .”).8 Id. at 2–3.9 Knowlton, 166 N.W. at 203. The trial court decree also “command[ed] the board ofdirectors to provide a school building for the use of the subdistrict, and meanwhile, until suchbuilding could be provided, that a suitable room be rented for that purpose elsewhere thanin connection with the parochial school.” Id.10 Id. at 206. The court continued: “So well is this understood, it would be a waste of timefor us at this point to stop for specific reference to authorities or precedents or to the familiarpages of American history bearing thereon.” Id. at 207.11 Id.12 Id.13 Welcome to Kuemper Catholic School, KUEMPER CATH. SCH. SYS., https://kuemper.org/ [https://perma.cc/BJF9-UPHE] (last visited Mar. 4, 2024).774 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771a thousand students in the system.14 Starting in 2023, the Kuemper Catholic schoolswill receive public, tax-generated funds from the State of Iowa under a newly cre-ated education savings account program.15 By FY 2027, when income eligibilitystandards are phased out and enrollments grow without restriction, the KuemperCatholic schools stands to receive almost $11,000,000 in public funds annually.16In Knowlton, the Iowa Supreme Court found that it violated the compulsionguarantee of the Iowa Constitution to use public funds to support the Maple RiverSchool in Carroll County when it operated as a parochial school.17 How can it bethat it would not also violate the Iowa Constitution’s compulsion guarantee to usepublic funds to support the Kuemper Catholic schools in Carrol County? After all,from the perspective of the Iowa Constitution, the religious programs of instructionof the schools are precisely the same, and the compulsion guarantee has not beenmodified since it was drafted in 1844.How can it be? It cannot. This Article makes the unremarkable and conservativeargument that the transfer of public funds to religious schools under Iowa’s educationsavings account program violates the Iowa Constitution’s compulsion guarantee.We start by looking at the Iowa compulsion guarantee, including a review of theIowa authorities which have construed it, the historical record and setting of its adop-tion, and the history of its New Jersey antecedent.18 We then introduce the educationsavings account mechanism by which Iowa’s religious schools stand to receive morethan a third of a billion dollars annually by FY 2027.19 After that, we considerwhether education savings account transfers of public funds to religious schools areconstitutional under Iowa’s compulsion guarantee, specifically considering three14 In 2022, the certified enrollments for the Kuemper system were 778 in the elementaryand middle school and 280 in the high school, for a total of 1,058 students. 2022–2023Nonpublic Schools Certified Enrollment, IOWA DEP’T OF EDUC. [hereinafter IOWA DEP’T OFEDUC., Enrollment], https://educateiowa.gov/documents/2022-2023-nonpublic-schools-certified-enrollment [https://perma.cc/5FQR-QMGK] (last visited Mar. 4, 2024).15 See JENNIFER ACTON, LEGIS. SERV. AGENCY, LSB11174HV, FISCAL NOTE: HF 68—EDUCATION SAVINGS ACCOUNTS 1 (Iowa 2023) [hereinafter FISCAL NOTE], https://www.legis.iowa.gov/docs/publications/FN/1374191.pdf [https://perma.cc/T9E8-WBBV].16 The estimate is $10,735,442, generated by taking an enrollment of 1,312 (the October2022 official enrollment of 1,058 times the Fiscal Note assumption of a 1.24 growth multipleover two years) times a per pupil education savings account payment of $8,183 (the currentstate cost per pupil of $7,598 times an annual increase of 2.50% as assumed in the FiscalNote). See id. at 5 fig.3. The education savings account payment cannot exceed the actualtuition, but as of the 2023–2024 year, Kuemper Catholic School System tuition rates will be$7,750 for kindergarten through 6th grade, $8,300 for 7th and 8th grades, and $8,850 for 9ththrough 12th grades. Tuition Assistance & Tuition Rates, KUEMPER CATH. SCH. SYS., https://kuemper.org/tuition-and-tuition-assistance [https://perma.cc/M4JD-Y6YZ] (last visitedMar. 4, 2024).17 Knowlton v. Baumhover, 166 N.W. 202, 214 (Iowa 1918).18 See discussion infra Section I.C.19 See discussion infra Part II; FISCAL NOTE, supra note 15, at 1, 5 fig.3.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 775questions framed by the relevant authorities: first, are the religious schools minis-tries and are their teachers ministers?; second, do the religious schools teach theirstudents religion?; and third, are the religious schools pervasively religious?20 Wethen consider the application of the compulsion guarantee to the education savingsaccount program in light of the Supreme Court’s ruling in Carson v. Makin.21 Weconclude by asking where we go from here.22Although this discussion focuses on the education savings account program inIowa, the underlying issue is much broader. Twenty-eight states have compulsionguarantees in their state constitutions.23 Of those, five have education savings ac-count programs which pay religious school tuition,24 five have voucher programs forreligious school tuition,25 and seven have favorable tax treatment, either deductionsor credits, for religious school tuition.26 In all, twelve of the twenty-eight compul-sion guarantee states have programs which fund religious schools. The remainingsixteen of the twenty-eight do not have such programs,27 but in many of those states,politicians are pushing for their adoption.2820 See discussion infra Sections II.A.1–II.A.3.21 See discussion infra Part III. See generally Carson v. Makin, 142 S. Ct. 1987 (2022)(holding Maine’s “nonsectarian” requirement for otherwise generally available tuition as-sistance payments violates the Free Exercise Clause).22 See discussion infra Conclusion.23 See infra Appendix A.24 Arkansas (ARK. CODE ANN. §§ 6-18-2501 to -2511 (West 2023)); Indiana (IND. CODE§ 20-51.4-5 (2023)); Iowa (2023 Iowa Acts, House File 68 § 7 (2023)); Tennessee (TENN.CODE ANN. §§ 49-6-2601 to -2612 (West 2023)); and West Virginia (W.VA. CODE ANN.§ 18-8-1(m), § 18-9A-25, § 18-31 (West 2023)).25 Indiana (IND. CODE § 20-51-1-4.7 (2023)); Maryland (EDUC. H.B. 0300, R00A03.05(Md. 2022–23)); Ohio (OHIO REV. CODE ANN. §§ 3310.01 to 17 (West 2023)); Vermont (VT.STAT. ANN. tit. 16, § 822 (West 2023)); and Wisconsin (WIS. STAT. § 118.60 (2023)). SeeOlivia Dance, Maryland Lawmakers Reach Deal on the Future of BOOST Program, FOX 45NEWS (Mar. 31, 2023), https://foxbaltimore.com/news/local/maryland-lawmakers-reach-deal-on-the-future-of-boost-program [https://perma.cc/C296-UURG]; What are School Vouch-ers?, EDCHOICE, https://www.edchoice.org/school-choice/types-of-school-choice/what-are-school-vouchers-2/ [https://perma.cc/8S4D-NJLT] (last visited Mar. 4, 2024).26 Alabama (ALA. CODE § 16-6D-3(4) (2023)); Illinois (35 ILL. COMP. STAT. § 5/201(m)(2023)); Indiana (IND. CODE § 6-3-2-22 (2023)); Iowa (IOWA CODE § 422.12(2)(b) (2023));Minnesota (MINN. STAT. § 290.0132, subdiv. 4, § 290.0674, subdiv. 1 (2022)); Ohio (OHIOREV. CODE ANN. § 5747.75 (West 2023)); and Wisconsin (WIS. STAT. § 71.05(6)(b)49(2023)). See Individual K–12 Tax Credits & Deductions, EDCHOICE, https://www.edchoice.org/school-choice/types-of-school-choice/how-do-k-12-education-tax-credits-deductions-work/ [https://perma.cc/944B-HDEC] (last visited Mar. 4, 2024).27 The sixteen states are Colorado, Connecticut, Delaware, Idaho, Kansas, Kentucky,Michigan, Missouri, Nebraska, New Jersey, New Mexico, Pennsylvania, Rhode Island,South Dakota, Texas, and Virginia. See infra Appendix A.28 See, e.g., Suzanne Perez, Kansas House Passes School Choice Bill, Ties It to Special-Ed Funding and Teacher Pay, NPR (Mar. 15, 2023, 4:04 PM), https://www.kcur.org/2023776 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771With the current majority on the United States Supreme Court seemingly de-termined to give religious schools unprecedented access to public funds, it may bethat we should look to our state constitution religious liberty clauses—especially thecompulsion guarantees—to maintain an appropriate separation between public andsectarian spheres in the realm of education.I. IOWA’S COMPULSION GUARANTEEThe religious liberty provisions of the Iowa Constitution are found in Article 1,Section 3. First is the establishment clause: “The general assembly shall make nolaw respecting an establishment of religion. . . .”29 Second is the free exercise clause:“[O]r prohibiting the free exercise thereof. . . .”30 Last is the compulsion guarantee:“[N]or shall any person be compelled to attend any place of worship, pay tithes,taxes, or other rates for building or repairing places of worship, or the maintenanceof any minister, or ministry.”31 The establishment clause and free exercise clausetrack provisions of the Federal Constitution.32 The third religious liberty guaranteeof the Iowa Constitution, the compulsion guarantee, has no counterpart in the textof the Federal Constitution.It has been argued that the language of the compulsion guarantee is concrete andspecific; that it is neither uncertain nor ambiguous. It follows that construction ofthe provision is unnecessary and the courts should be guided by the ordinary mean-ing of the words. In deciding a compulsion guarantee case, albeit one not involvingschools, two Iowa Supreme Court Justices evaluated the compulsion guarantee inthis respect.33 Justice Uhlenhopp began by taking issue with the construction anal-ysis engaged in by the majority:The difficulty with this process of construction is the languageof the third part of § 3. Sometimes constitutional clauses areabstract and general such as “due process of law,” and historicalantecedents are needed to fill in meaning. . . . Other clauses in-03-15/kansas-house-passes-school-choice-bill-ties-it-to-special-ed-funding-and-teacher-pay[https://perma.cc/YS2L-JXEW] (reporting Kansas House of Representatives passage ofeducation savings account measure).29 IOWA CONST. art. I, § 3.30 Id.31 Id.32 Compare id. (“The general assembly shall make no law respecting an establishmentof religion, or prohibiting the free exercise thereof. . . .”), with U.S. CONST. amend. I (“Con-gress shall make no law respecting an establishment of religion, or prohibiting the freeexercise thereof. . . .”).33 Rudd v. Ray, 248 N.W.2d 125, 133–37 (Iowa 1976) (Uhlenhopp, J., dissenting, withRawlings, J., joining in division II).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 777the Bill of Rights contain broad sweeping guarantees whichmake historical background useful to understanding. . . . But thelanguage in the third part of § 3 is of the opposite kind, concreteand specific: no one may be taxed for building or repairingplaces of worship or for maintaining any minister or ministry.34Having dealt with the abstract and general, Justice Uhlenhopp turned to languagethat is uncertain or ambiguous:A constitutional clause may also be uncertain or ambiguous,making the historical setting useful in ascertaining the meaningintended. . . . Here however we have clear, definite, unambigu-ous language: no taxation for building or repairing places ofworship or maintaining any minister or ministry. Hence theprinciple applies that construction is unnecessary and we are tobe guided by the ordinary meaning of the words.35Justice Uhlenhopp’s analysis concluded with an observation that the drafters in-cluded a broad meaning of the term “minister or ministry”:[T]he framers of the third part of § 3 spoke broadly in connec-tion with ministers. The framers did not limit the proscription tocertain kinds or classes of ministers; taxes cannot be used tomaintain “any” minister or ministry. We should not strain to findobscurity or ambiguity when the constitutional language is clear.36Justice Uhlenhopp’s analysis of the wording of the compulsion guarantee isconvincing. Nevertheless, and with the concession that the state-employee prisonchaplains at issue in Rudd v. Ray are perhaps closer to the most common meaningof the term “minister” than are religious school teachers, we turn to three sourceshelpful in understanding the way in which education savings account payments toreligious schools violate the compulsion guarantee: first, the decisions of the Iowaauthorities which have construed the provision; second, the record of the Iowa con-stitutional conventions where the compulsion guarantee was adopted and the historyof the times in which those conventions met; and third, the origin of the languageof the Iowa compulsion guarantee, and the decisions of authorities of the state oforigin. As it turns out, the three sources support the argument that state-fundededucation savings account payments of public funds to religious schools violate thecompulsion guarantee of the Iowa Constitution.34 Id. at 135–36.35 Id. at 136.36 Id. at 137.778 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771A. The Analyses of the Iowa Authorities Which Have Construed the CompulsionGuaranteeThere are only a handful of decisions construing the Iowa compulsion guar-antee. Knowlton v. Baumhover is the only Iowa Supreme Court case analyzing thecompulsion guarantee in the context of the use of public funds for religious schools.37The sequence of events involved in Knowlton was not subtle. The Iowa SupremeCourt described the Catholic school which already was in operation in the commu-nity before the public-school building was sold:A Roman Catholic house of worship known as the “St. FrancisChurch” had been erected . . . and there religious services wereregularly conducted by priests to whom the pastoral charge ofthat parish was from time to time committed. By its side wasalso erected a building in which a parochial school was main-tained. This building was of two stories, each having a school-room. The teachers in these rooms were Catholic Sisters, wearingthe characteristic garb and regalia of their order, who gave dailyinstruction to their pupils not only in branches of secular learning,but also in the Catholic catechism and in elementary principlesof Catholic faith.38Once the public school was operated in leased space within the Catholic school, theKnowlton court described the operation as having religious education at its core:The building as a whole was to all intents and purposes a singleschoolhouse, and the classes taught therein constituted a singleschool of two departments established and maintained for theexpress purpose of giving religious training to its pupils, and atthe same time affording such pupils, as nearly as practicable, theequivalent of a common school education.39The court found that the school, as actually operated, had become a religiousschool operated with public funds:37 166 N.W. 202, 207 (Iowa 1918). The opinion of the court was written by JusticeWeaver, with Justices Ladd, Evans, Gaynor, and Stevens concurring. Justice Salinger dis-sented, with Justice Preston. It should be noted that the dissent went to the means employedby the trial court, not to the underlying question of the legality or constitutionality of usingpublic funds to support a religious school. “It is true both the statute and the Constitutionprohibit the appropriation of public money in aid of any private or sectarian school, but,while that establishes that this must not be done, it does not in the least enlarge the powersof the court of chancery on injunctions.” Id. at 216 (Salinger, J., dissenting).38 Id. at 203.39 Id. at 203–04.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 779In short, it must be said that with the abandonment of the publicschoolhouse and the transfer of the school into the parochialbuilding and its organization and conduct as there perfected theschool ceased to have a public character in the sense contem-plated by our laws, and became, has since been, and now is areligious school, maintained and conducted with a special viewto the promotion of the faith of the church under whose favorand guardianship it was founded.40After nine years of this arrangement, a resident taxpayer filed suit, alleging:that the school so maintained is not a public school within themeaning of the law, but is, in fact, a parochial or religious school,which was established, and has been and still is being conducted,by and in behalf of the religious organization known as theRoman Catholic Church, and that the board of directors and thetreasurer of the district have paid out and expended, and, if notrestrained from so doing, will continue to pay out and expend,the public funds of the district for the benefit and support of thesaid parochial school.41The district court found for the plaintiff “and entered a decree perpetually enjoiningthe defendants . . . from using or appropriating the moneys of the district to suchend . . . .”42It may help explain how the practices in Knowlton escaped challenge for adecade to note the testimony that all the students who attended the public schoolwere Catholics,43 that there were no objections to moving the public school into theSt. Francis School,44 and that Catholics comprised a large majority on the schoolboard.45 The superintendent of schools testified:40 Id. at 206.41 Id. at 203.42 Id. The trial court decree also “command[ed] the board of directors to provide a schoolbuilding for the use of the subdistrict, and meanwhile, until such building could be provided,that a suitable room be rented for that purpose elsewhere than in connection with the paro-chial school.” Id.43 Knowlton Appellant’s Abstract, supra note 7, at 42 (testimony of Vincent O’Brien, a13-year-old student formerly in the upper room) (“Q. Were there any children that went tothat school except those who went to the Catholic church within the last year? A. No.”); id.at 80 (testimony of Charles Irlbeck, former president of the school board) (“Most of thescholars that attended school at Maple River are members of the Catholic church.”).44 Id. at 63 (testimony of Joe Dunck, who was president of the school board in 1905) (“Iknow that the people without any exception favored the plan. I mean the patrons of theschool. They were Catholics.”).45 Id. (testimony of Joe Dunck) (“I think the majority of the members of the school board780 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771The Catholics under the guidance of their pastor prefer to sendtheir children up to and including the 8th grade to a parochialschool. I knew the wishes generally of the people living in thatsub-district. A greater part of them, desired to send their childrento a parochial school.46The public school located in the St. Francis parochial school taught students in thesixth, seventh, and eighth grades.47 Of course, while the demographics of the com-munity and the wishes of the parents to have a religious education for their childrenmay explain the scheme to operate the Maple River public school as a parochialschool, they do not in any sense justify or excuse it.The Knowlton record is replete with examples which fairly indicate the partici-pants in the Maple River scheme knew that they were doing something improper.This consciousness of guilt was suggested in the arrangement under which thepublic school was located in the existing St. Francis Parochial School. The leaseshould have been between the St. Francis Church, which owned the parochial schoolbuilding, and the Maple River school board, which was renting the property. But inthe lease the space for the lessor was left blank.48 The execution on behalf of thelessor was simply “Jos. Kuemper,”49 giving no indication that the lease was with theSt. Francis Church, of which Father Joseph Kuemper was the priest in charge.50were members of the Catholic church. I think the proportion of the school board was aboutone-third Protestants and two thirds Catholic.”).46 Id. at 76 (testimony of W.T. Bohnenkamp).47 Knowlton v. Baumhover, 166 N.W. 202, 205 (Iowa 1918) (citing testimony of thesuperintendent).48 Knowlton Appellant’s Abstract, supra note 7, at 59.49 Id. at 61. It was signed for the school by “J.M. Dunck, Pres. of the Board.” Id.50 Id. at 57 (statement of appellee attorney Sims) (“Let the records show that JosephKuemper, the party named in the resolution read in evidence and with who the school boardin question made their contract for the leasing of the school in question was the priest incharge of the property at Maple River Junction at that time.”). The deceptive reference to the“lease with Jos. Kuemper” was not limited to the lease itself. The school board authorizationfor the lease refers to it as “a lease with Jos. Kempker [sic] for said room . . . .” Id. at 21–22.And the school board approval of the lease refers to it as “the lease made between Jos.Kuemper and the board for the school room . . . .” Id.A second lease, executed nine years later within days of the district court trial inKnowlton, correctly identified the lessor as the church. That lease, dated August 30, 1914,was “between St. Francis Church of Maple River Jct., of Carroll County, Iowa” and “SchoolTownship of Maple River of Carrol County, Iowa.” It was signed for the school by “Rud.Schiver, President,” and “C. J. Dunck, Secretary.” It was signed for the church by “Rev.Aug. Meyer, President” and “J.H. Fleskes, Secretary.” Id. at 17–19. It may speak to thepervasive irregularity of the entire arrangement that J.H. Fleskes, who signed on behalf ofthe St. Francis church, was also “the duly elected, qualified and acting School Treasurer forsaid School District, and, by virtue of his office, charged with the custody of all the public2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 781Other examples suggest consciousness of guilt in the proffering of facially un-believable testimony. For example, members of the school board and school officialstestified that they never visited the school and had no idea that the sisters taught thestudents the catechism.51 Or the officials involved in the scheme who were quiteclear, after it unraveled, that they had always insisted that the public school operat-ing in the St. Francis parochial school be operated according to law.52 Or themember of the school board who testified that he gave the board the name of SisterEstella Martin to be the teacher of the school, but didn’t know how he got her nameexcept that it certainly was not from the priest in charge of the St. Francis church.53school funds of said school district, and holds the same subject to the order of the said Boardof School Directors.” Id. at 2.51 The board members and officers included Peter Beisch, Appellee’s Amendment toAbstract at 6, Knowlton v. Baumhover, 166 N.W. at 202 (Iowa 1915) [hereinafter KnowltonAppellee’s Amendment to Abstract] (testimony of Peter Beisch) (“Q. Did you ever visit theschool? A. I didn’t have anything to do with the school. Q. You didn’t have much interestin the school? A. No sir.”); Joe Dunck, id. at 16 (testimony of C.J. Dunck) (“Q. You neverwas [sic] inside of the school at any time while school was in session? A. No sir.”); J.J. Egan,id. at 12–13 (testimony of J.J. Egan) (“Q. You didn’t take pains to inform yourself about thatbefore, did you? A. No sir, I never did. I never took pains to inform myself as to how theschool was conducted in either of these rooms. Never was in this parochial school build-ing.”); Knowlton Appellant’s Abstract, supra note 7, at 65–66 (testimony of J.J. Egan) (“Inever knew of my own knowledge, whether the Catechism was taught there or not.”); CharlesIrlbeck, id. at 80 (testimony of Charles Irlbeck) (“I had no knowledge at any time that theupper room was run in any other manner than as a public school. Had no knowledge thatthere was any Catechism taught there. I never visited the school.”); W.S. Pape, id. at 82 (testi-mony of W.S. Pape) (“I never visited the school. Never heard this school was being con-ducted as a parochial school. Never heard that the Catechism was being taught there.”); B.B.Lemker, id. at 83 (testimony of B.B. Lemker) (“Never have been in this school room. . . . Idid not know the Catechism was being taught in that school. I never heard of it. I have twochildren attending that school. One in the lower room and one in the upper room. Neverheard from the children anything about teaching the Catechism in either room.”); andRudolph Schroer, id. at 88 (testimony of Rudolph Schroer) (“I was never in the school. Nevervisited either of the rooms.”). W.T. Bohnenkamp, the County Superintendent of Schools,testified: “I did not hear that they had been teaching Catechism in this room until this troublecame up.” Id. at 75 (testimony of W.T. Bohnenkamp).52 Id. at 62 (testimony of Joe Dunck, president of the school board in 1905 when thescheme was instituted) (“The upper room was to be for public school purposes. Personally,I insisted at the time that it be run strictly according to law.”); and id. at 75 (testimony ofW.T. Bohnenkamp, the superintendent of schools) (“[A]fter I came into office and found thecondition I tried to make it a point to see that they lived up to the law as much as I could inregard to the public school matters.”).53 Peter Beish testified that:Q. Who gave you the name of the teacher that was employed by theschool board for the year ending in June, 1914? . . . A. I can’t under-stand that. Q. What is the fact about you and the Catholic priest of782 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771A final example in Knowlton of people rather obviously prevaricating to facili-tate the transfer of public funds to religious schools was the presence of religiousiconography in the St. Francis school room rented for the public school. There wasno dispute that the rented room contained religious iconography,54 and that the nunswho were paid public funds to teach did so in their religious garb.55 Nevertheless,Father August Myers, the St. Francis pastor in 1915, testified: “I have never noticedanything in the room upstairs different from other public schools.”56On appeal, the Iowa Supreme Court restated the underlying rationale for thepolicy against supporting religious schools with public funds:The right of a man to worship God or even to refuse to worshipGod and to entertain such religious views as appeals to his in-dividual conscience without dictation or interference by anyperson or power, civil or ecclesiastical, is as fundamental in afree government like ours as is the right to life, liberty, or thepursuit of happiness. Included in that sacred right is that of theparent to instruct and guide his own children in religious train-ing. He has no right, however, to ask that the state through itsschool system shall employ its power or authority or expendmoney acquired by public taxation in training his childrenreligiously.57Maple River Junction agreeing as to the name of the teacher that shouldbe reported to the board for the school? A. I can’t understand it. Q.What is the fact about you and the Catholic priest who resided inMaple River, and had charge of St. Francis church, talking betweenyourselves as to who the teacher should be for that building? A. Well,we don’t get the teachers, they come. . . . The name came before theboard. I don’t know how it got there. . . . I don’t know how I happenedto suggest the name of Sister Estella Martin.Knowlton Appellee’s Amendment to Abstract, supra note 51, at 4–5.54 Knowlton Appellant’s Abstract, supra note 7, at 23–24 (testimony of W.T. Ralph)(“There was a picture of the Virgin Mary. Also of Christ wearing Thorns and some picturesof the Crucifixion in the library. That was in the north room on the second floor. It is theroom described in this lease.”); id. at 39 (testimony of Anna Myers, a 13-year-old student)(“There were bible pictures on the wall. Christ on the Cross, and the Virgin Mary.”).55 Knowlton v. Baumhover, 166 N.W. 202, 204 (Iowa 1918) (“[T]he teachers wereinvariably arrayed in the striking robes of their order.”).56 Knowlton Appellant’s Abstract, supra note 7, at 71 (testimony of Father August Myers).The superintendent of schools deserves points for being at least somewhat more honest thanFather Myers. Id. at 73 (testimony of W.T. Bohnenkamp) (“I did not observe any differencein the conducting of that school than in any other public school that I was in the habit ofvisiting, except that Sister Stilla was teaching in the garb of a nun.”).57 Knowlton, 166 N.W. at 207 (emphasis added).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 783The Knowlton court was clear about the absolute ban on the use of public funds forreligious education:At the bar of the court every church or other organization up-holding or promoting any form of religion or religious faith orpractice is a sect, and to each and all alike is denied the right touse the public schools or the public funds for the advancementof religious or sectarian teaching.58The “right to use . . . the public funds for the advancement of religious orsectarian teaching,” clearly rejected in Knowlton on the basis of the compulsionguarantee, is at issue in the education savings account program.It might seem curious that such the elaborate scheme in Knowlton to securepublic funds for a religious school could have been devised by a village priest andwould have been implemented in only one isolated location. In fact, neither supposi-tion is true.There are indications in the Knowlton record that the practice complainedof—leasing a sectarian school to the public school board and hiring its religiousteachers as public school teachers—was not limited to the Maple River school. Thecounty superintendent of public schools testified that in the Roselle Township, justsouth of the Maple River Township, teachers in a public school taught “clothed inthe garb of a Sister of Charity.”59 When the Iowa Supreme Court opinion camedown affirming the trial court in Knowlton, the local newspaper in Carroll opinedthat the decision “will have a direct bearing on other communities in the county, andmay be the means of settling out of court many of the questions that have beeninvolved regarding conditions almost identical in character.”60 And thirty-six yearsbefore Knowlton, the Iowa Supreme Court considered a case from Dubuque County,58 Id. The Iowa Supreme Court upheld the trial court:It has the authority . . . and it is its duty, to enjoin the defendants andtheir successors in office from directly or indirectly making anyappropriation or use of the public funds for the support or in aid of suchparochial school or of any so-called public school maintained orconducted in connection with such parochial school.Id. at 214.59 Knowlton Appellant’s Abstract, supra note 7, at 76 (testimony of W.T. Bohnenkamp)(“Q. Have you in mind any public school building owned by the public wherein any teachersgo clothed in the garb of a Sister of Charity? A. I haven’t this year. I had last year and pre-vious years. Q. Where? A. In Roselle. Q. In a public school building? A. Yes sir.”). Whenasked whether the teacher who was a sister engaged in religious instruction, the superin-tendent’s answer was carefully framed: “Q. Was there any religious instruction conductedin that school by the teacher? A. Not in that building.” Id.60 THE CARROLL TIMES, Jan. 24, 1918, at 5.784 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771the facts of which were similar.61 In that case, the plaintiff alleged that the localschool board “authorized and permitted school to be taught in a private school-houseowned by the bishop of the Catholic church for the diocese of Iowa” and that theboard “permitted the Catholic catechism to be studied, taught, learned, and recitedin the public school of the district.”62Nor was the scheme in Knowlton developed by Father Kuemper in 1905. Thearrangement complained of in Knowlton was almost a textbook example of the“Poughkeepsie Plan,” a scheme developed in Poughkeepsie, New York more thansixty years earlier when Father Patrick E. McSweeney “devise[d] an ingenious solu-tion to the education problem.”63McSweeney arranged for the local school board [in Poughkeepsie,New York] to fund two parish schools, with the informal under-standing that the school board hire qualified Catholics (Sistersof Charity) as instructors. In turn, he promised “[n]o religiousexercise to be held, nor religious instruction given during theschool hours.”64From 1843 to 1898, the board of education was “renting from various churchdenominations and individuals [sic] school buildings and rooms in which to conductthe public schools . . .”65 It was reported that schools were rented from “the Baptist,Methodist, Universalist, and Catholic denominations.”66 Another part of the planwas “the employment as teachers of persons who wear the distinctive dress or garbof a religious order.”67 Seven years before the same arrangement was initiated in61 See Scripture v. Burns, 12 N.W. 760, 761 (Iowa 1882).62 Id. at 761. The “district court dismissed plaintiff’s petition . . . and refused to hearevidence supporting the allegations of the petition to the effect that the Catholic creed wastaught in the school.” Id. The Supreme Court affirmed the district court on the proceduralground that plaintiff had not made the predicate demand required by statute and could notproceed by way of mandamus. Id.63 JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY 120 (2003).This is not to be confused with the contemporaneous “Poughkeepsie plan” in horse racing.Handicap Racing to Save Harness Turf, THE LEXINGTON HERALD, Apr. 4, 1909, at 14 (“[T]hePoughkeepsie plan, namely, all horses not standing for any portion of the money to be sentto the stable after the conclusion of the third heat and end the race at the fifth heat.”).64 MCGREEVY, supra note 63, at 120.65 Religion in the Schools: State Supt. Skinner Finds the “Poughkeepsie Plan” Unlawful.City Must Own Its Houses, Teachers Must Be Required to Discontinue Use of DistinguishingGarbs of Orders, N.Y. TIMES (Dec. 25, 1898), https://timesmachine.nytimes.com/timesmachine/1898/12/25/102130079.pdf [https://perma.cc/LX4K-78EH].66 Id.67 Id.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 785Maple River, the state superintendent of education in New York found thePoughkeepsie Plan unlawful and ordered it to be ended:[T]his union of interests is no longer desirable nor for the bestinterests of the schools of the city. It has been and is a cause ofirritation and discord among the patrons of the schools; is againstthe spirit of our institutions, which call for a complete and totalseverance of Church and State, and is against the letter and spiritof the Constitution. The public school system must be conductedin such a broad and catholic spirit that Jew and Protestant andCatholic alike shall find therein absolutely no cause for com-plaint as to the exercise, directly or indirectly, of any denomina-tional influence. In this respect every school maintained at publicexpense should be free, open, and accessible, without reasonableground for objection from any source whatever.68Fifteen years before Father Kuemper and the Maple River school board acted,the Poughkeepsie Plan was replicated by St. Paul, Minnesota Catholic ArchbishopJohn Ireland, in Faribault and Stillwater, Minnesota. That arrangement was endedin 1894.69The scheme at issue in Knowlton replicated key elements of the PoughkeepsiePlan, although the Maple River execution was severely compromised by the practicebetween 1905 and 1914 of having the teaching sisters recite the catechism in theclassroom during school hours.70Nor were the schemes to gain access to public funding for religious schoolslimited to the Poughkeepsie Plan. Writing in 1941, one commentator noted theubiquitous nature of restrictions on giving public funds to religious schools: “The68 Id. That action was reported in at least one Iowa newspaper. Sisters Cannot Teach,Public School Decision Against Poughkeepsie Plan, THE CEDAR RAPIDS EVENING GAZETTE,Dec. 26, 1898, at 4 (reporting decision of New York State Superintendent of Public In-struction against the Poughkeepsie Plan).69 MCGREEVY, supra note 63, at 120–21. Archbishop Ireland’s advocacy was reportedin at least one Iowa newspaper. Archbishop Ireland’s Mission, THE DAVENPORT DAILYTIMES, Jan. 6, 1892, at 1 (reporting that St. Paul Minnesota Archbishop Ireland was recalledto Rome for consultation with the Pope “regarding the parochial and public school systemsof the United States” and noting that the Archbishop “believes in the adoption of thePoughkeepsie plan”).70 Knowlton v. Baumhover, Opinion at 3 (filed Sept. 21, 1915, withdrawn, Oct. 30, 1915)(Deemer C.J., with Ladd, Gaynor, and Salinger, JJ., concurring) (“The teaching of thecatechism in the school was contrary to law, but the practice was discontinued in the mannerstated and as it was abandoned in apparent good faith there is no need for an injunction tostop the proceeding.”).786 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771constitutions of forty-six of the United States, thirty-seven of them by explicit refer-ence to sectarian institutions, prohibit the appropriation of public money to schoolscontrolled by religious organizations.”71 Despite the state constitutional provisionsforbidding such assistance, the author reported: “[S]cattered across most of thesestates by 1937 were at least 340 Catholic schools supported substantially by directappropriation of public funds.”72The same commentator discussed an Indiana case in which, during the depths ofthe Great Depression, the Vincennes public school authorities took over and operatedthe parochial schools in that city after the Catholic education authorities threatenedto close the schools for financial reasons and send eight hundred students into thepublic school system.73 The public school trustees passed a resolution providing:[T]hat whereas the effects of the depression have brought aboutan economical condition in our city by reason of which an emer-gency exists regarding the operation and maintenance of theparochial schools of Vincennes and whereas the [trustees] are ofthe opinion that the patrons of our parochial schools are entitledto public aid and assistance during these extraordinary times inwhich we are living; therefore, be it resolved by the [trustees]that [they] assume the administrative and instructional obligationfor the school children of the parochial schools . . . .74On the basis of the finding, but without a formal lease and without paying anyrent, the public trustees took over operation of the parochial schools.75 The trusteeshired a cohort of teachers for the parochial schools, all of whom “were Sisters andBrothers in various Catholic orders,” recommended by “various Roman Catholiccolleges.”76 The teachers were paid out of public funds.77 Although the trusteesresolved “that no sectarian instruction shall be permitted during school hours in saidschools,” “[e]ach morning immediately prior to the beginning of the school thepupils of each room were caused to attend at the nearby church where they weregiven religious instructions for thirty minutes by the parish priest.”78 As the trusteesdid not realign the attendance boundaries to take account of the new public schools,71 Note, Catholic Schools and Public Money, 50 YALE L.J. 917, 917 (1941).72 Id.73 Id. at 918–19; State ex rel. Johnson v. Boyd, 28 N.E.2d 256, 260 (Ind. 1940).74 Johnson, 28 N.E.2d at 260 (quoting the July 28, 1933 resolution as amended onAugust 25, 1935).75 Id. at 261–62 (“Throughout the period in question the [public board] ‘has paid theadministrative and instructional obligations’ of all of the schools mentioned from publicschool funds.”).76 Id. at 261.77 Id. at 262.78 Id. at 261.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 787the students who had attended the parochial schools continued to attend the sameschools in their new public guise.79The new public schools maintained the décor of the old parochial schools:In addition to other pictures the school rooms in each of saidbuildings had hanging on the walls, in view of said students, apicture of Jesus, The Holy Family, The Crucifixion, and GeorgeWashington. They also each have an American Flag and a HolyWater fount [sic], in which is kept Holy Water for the use of thepupils. While teaching the teachers wore the characteristic robesof the orders to which they belonged and the sisters always worea rosary and crucifix in view of the pupils.80Based fundamentally on the errors of the district court in not making an “expressfinding that the schools in question were parochial schools during the period from1933 to 1937,”81 and in the district court not making a finding “that these schoolswere directed and controlled through the clerical government of the church exer-cised by and through the Bishop,”82 the Johnson court found no reversible error.83The commentator observed: “Of the nine judicial holdings dealing with themerits of arrangements closely analogous to that in Vincennes . . . eight have founda violation of the state constitution.”84 One of the eight cases cited is Knowlton.8579 Id. at 262.80 Id. at 261.81 Id. at 263.82 Id. at 266.83 Id. at 267.84 Catholic Schools and Public Money, supra note 71, at 924. The note cites State ex rel.Pub. Sch. Dist. No. 6 v. Taylor, 240 N.W. 573, 574 (Neb. 1932) (holding that the state is notrequired to fund school conducted as a religious school, “which is not a common or publicschool within the meaning of the Constitution”); Collins v. Kephart, 117 A. 440, 442 (Pa.1921) (holding that the state cannot fund charitable activities of “any denominational orsectarian institution,” including a sectarian and denominational school); Knowlton v.Baumhover, 166 N.W. 202, 204 (Iowa 1918); Williams v. Stanton Dist., 191 S.W. 507,511–12 (Ky. Ct. App. 1917) (preventing public funds for Presbyterian school leased to publicschool board or teachers from sectarian school employed by the public school system);Atchison, T. & S. F. R. Co. v. City of Atchison, 28 P. 1000, 1001 (Kan. 1892) (invalidatingtaxes levied to support private and sectarian schools); Synod of Dakota v. State, 50 N.W. 632,635 (S.D. 1891) (prohibiting tuition payments to a sectarian school); Hlebanja v. Brewe, 236N.W. 296, 297 (S.D. 1931) (prohibiting tuition payments to sectarian schools); State ex rel.Nevada Orphan Asylum v. Hallock, 16 Nev. 373, 377 (1882) (prohibiting transfer of publicfunds to sectarian orphanage); Jenkins v. Inhabitants of Andover, 103 Mass. 94, 103 (1869)(prohibiting transfer of public funds for school not under public control); Opinion of theJustices, 102 N.E. 464, 465 (Mass. 1913) (holding funds raised by taxation may not be usedto support religious schools).85 Catholic Schools and Public Money, supra note 71, at 924 n.49.788 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771Although not as directly on point as Knowlton, a few other Iowa cases arehelpful in understanding the religious liberty compulsion guarantee. Two early IowaSupreme Court cases dealt with what were termed “occasional and temporary” and“casual” uses of public buildings for religious purposes. Davis v. Boget involved theuse of public school buildings for religious worship services on weekends.86 Theplaintiff raised the compulsion guarantee.87 The court in effect conceded the viola-tion but declined to interfere:[W]e incline to think that the use of a public school building forSabbath schools, religious meetings, debating clubs, temperancemeetings and the like, and which, of necessity, must be occasionaland temporary, is not so palpably a violation of the fundamentallaw as to justify the courts in interfering.88Since the religious groups were responsible for any damages, the Davis court con-cluded, “the amount of taxes any one would be compelled to pay by reason of suchuse would never amount to any appreciable sum.”89 In contrast, the education savingsaccount program will cost Iowa taxpayers a third of a billion dollars in public fundsannually when fully implemented, beyond any question a palpable violation.90Six years after Davis, the Iowa Supreme Court again considered the compulsionguarantee in Moore v. Monroe.91 Moore involved a challenge to the practice of86 Davis v. Boget, 50 Iowa 11, 12–13 (1878).87 Id. at 15 (“It is argued that the permanent use of a public schoolhouse for religiousworship is indirectly compelling the taxpayer to pay taxes for the building or repairing ofplaces of worship.”). The Davis court relied upon Townsend v. Hagan, 35 Iowa 194 (1872)in the first division of its opinion, as to the authority of the electors, but the compulsionguarantee challenge was not raised in Townsend. See Davis, 50 Iowa at 2–3.88 Id. at 15 (emphasis added).89 Id. at 15–16.90 See infra note 221.91 20 N.W. 475, 475 (Iowa 1884). In 1882, after Davis but before Moore, the IowaSupreme Court considered a case, the facts of which were similar in some respects toKnowlton: Scripture v. Burns, 12 N.W. 760 (1882). In Scripture, the plaintiff alleged that thelocal school board “authorized and permitted school to be taught in a private school-houseowned by the bishop of the Catholic church for the diocese of Iowa . . .” and that the board“permitted the Catholic catechism to be studied, taught, learned, and recited in the publicschool of the district . . . .” Id. at 761. The “district court dismissed plaintiff’s petition . . . andrefused to hear evidence supporting the allegations of the petition to the effect that theCatholic creed was taught in the school.” Id. The Supreme Court affirmed the district courton the procedural ground that plaintiff had not made the predicate demand required by statuteand could not proceed by way of mandamus. The plaintiff’s claims were apparently onlystatutory in nature, the constitutional compulsion guarantee was not mentioned. In dictum,the Supreme Court allowed that school boards have the authority to rent space in which toconduct school:2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 789public school teachers using class time to read from the Bible, recite the Lord’sprayer, and sing religious songs.92 The plaintiff parent alleged a violation of thecompulsion guarantee.93 Once again, the court in effect conceded the violation94 butdeclined to interfere:The object of the provision, we think, is not to prevent the casualuse of a public building as a place for offering prayer, or doingother acts of religious worship, but to prevent the enactment ofa law whereby any person can be compelled to pay taxes forbuilding or repairing any place designed to be used distinctivelyas a place of worship. The object, we think, was to prevent animproper burden.95In contrast, the education savings account program will support activities which arepervasively religious, not in any sense casual.96The Iowa compulsion guarantee was also construed in the context of religiouseducation in a 1969 opinion of the Iowa Attorney General.97 At issue was proposedlegislation to give tuition grants of public funds to students at private—includingreligious—colleges and universities. The letter requesting the opinion gave someinsight into the structure of the proposal:It cannot be doubted that the directors of a school-district may, in aproper case, or when the public school-house is out of repair, or in-sufficient, and in other cases then the best interest of the school wouldbe subserved thereby, cause the school to be taught in a rented houseinstead of the public-school building.Id. The Scripture court did not indicate whether it would be proper to rent such space fromthe Catholic bishop and teach sectarian creed in the rented space.92 Moore, 20 N.W. at 475.93 Id. In its opinion, the court noted that:The plaintiff’s position is that, by the use of the school-house as a placefor reading the Bible, repeating the Lord’s prayer, and singing religioussongs, it is made a place of worship; and so . . . he, as a taxpayer, iscompelled to pay taxes for building a repairing a place of worship.Id. at 475–76.94 Id. at 476 (“For the purposes of the opinion it may be conceded that the teachers do notintend to wholly exclude the idea of worship. It would follow from such concession that theschool-house is, in some sense, for the time being, made a place of worship.”).95 Id. at 476. The court again conceded the theoretical validity of the plaintiff’s position:“It is, perhaps, not to be denied that the principle, carried out to its extreme logical results,might be sufficient to sustain the appellant’s position . . . .” Id.96 See discussion infra Section II.A.3.97 OFF. OF THE IOWA ATT’Y GEN., THIRTY-EIGHTH BIENNIAL REPORT OF THE ATTORNEYGENERAL FOR THE BIENNIAL PERIOD ENDING DECEMBER 31, 1970, at 139–40 (1970) [here-inafter HILL OPINION] (responding to state senator Hon. Eugene M. Hill). The Hill Opinionwas signed by Attorney General Richard C. Turner, a Republican.790 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771Obviously proposing a policy of appropriating directly to theprivate colleges and universities would be unconstitutional. Conse-quently, the proponents of Senate File 295 have chosen the his-torically traditional route of those seeking state support for privatechurch related schools, and are terming the aid to be granted aidto the student and not to the colleges and universities.98The Attorney General first observed that “it is commonly known and understoodthat a large percentage of the private schools and colleges in Iowa were founded bya church and are largely church supported and controlled.”99 He noted that thedefinition of “accredited private institution” in the proposed legislation—the schoolsthe students of which would have been eligible for public-funded tuition grants—“includes religious colleges as well as non-sectarian colleges.”100As to the question of direct appropriations to religious schools, the AttorneyGeneral opined: “There is no question but that a law appropriating funds directly,to religious colleges in direct support thereof, would violate Iowa’s constitutionalprohibition against making a law respecting an establishment of religion. This is theclear requirement of the holding of the Iowa Supreme Court in Knowlton vs.Baumhover . . . .”101The opinion then turns to the question of indirect appropriations of public fundsto religious schools. Noting Everson v. Board of Education,102 a 1947 United StatesSupreme Court parochial school transportation case, the Attorney General notes theSupreme Court’s contention that the Catholic schools received no state funds. Quot-ing the Everson majority: “The State contributes no money to the schools. It doesnot support them. Its legislation, as applied, does no more than provide a generalprogram to help parents get their children, regardless of their religion, safely andexpeditiously to and from accredited schools.”103“In short,” the Attorney General states, “it was the bus company, and not theschools, that got the money.”104 But that was not the situation before him with thetuition grant scheme:98 Id. (emphasis added).99 Id. at 140.100 Id.101 Id. at 141. The Attorney General’s reference to state constitution’s “prohibition againstmaking a law respecting an establishment of religion” is imprecise, since Knowlton is castin terms of the compulsion prohibition, not in terms of the establishment clause, of the stateconstitution. Knowlton v. Baumhover, 166 N.W. 202, 206 (Iowa 1918). The AttorneyGeneral says of Knowlton: “Although Knowlton vs. Baumhover was decided in 1918, it isstill the leading Iowa Supreme Court case on the subject of use of public funds for privateschools . . . .” HILL OPINION, supra note 97, at 142.102 Everson v. Bd. of Educ. of Ewing TP., 330 U.S. 1 (1947).103 HILL OPINION, supra note 97, at 143 (quoting Everson, 330 U.S. 1).104 Id.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 791The situation contemplated by this bill is entirely different. Hereit is not a bus company but the colleges that will get the money;the grants are related to the tuition; it is contemplated that thestudent will pay it to the college; and provisions are made for theState’s recovery of the tuition grants from the college, not fromthe student, if the student should drop out of college and becomeentitled to a refund. So the students act only as conduits throughwhom the public funds will flow to the treasuries of thecolleges.105The Attorney General dismissed the indirect path by which the money would getfrom the state treasury to the religious schools:[The tuition grant bill] does not directly support sectarianschools or colleges. Under this proposed new Iowa law, thefunds would be paid directly to students who have enrolled inthe private colleges and not directly to the colleges. But . . . it isstrictly a tuition grant. It is granted for no other purpose thanpaying tuition or reimbursing the student therefor. The collegegets the money.106Arguing that his conclusion was supported by Everson, the Attorney General said:“however indirectly accomplished, public funds may not be granted to privatecolleges.”107The Attorney General opined that the proposed indirect tuition transfers toreligious colleges would violate Article I, Section 3, Clause 3 of the Iowa Constitu-tion:The legislature may not by means of statutory enactment doindirectly that which it is prohibited from doing directly, byconstitutional provision. If this provision can stand against theprohibition of our constitution then expedients can be devisedand circumlocutions discovered by ingenious and imaginativeminds to avoid the same prohibition as it relates to our commonschools and high schools and ultimately there will be little or nodifference to the taxpayers between the burden of supporting a105 Id.106 Id.107 Id. (“[I]t is clear that the famous Everson decision is not authority in support of thetheory of the proposed bill. On the contrary, the careful precision of the majority opinionimpels us to the view that, however indirectly accomplished, public funds may not be grantedto private colleges.”).792 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771public school and the burden of supporting a private school. Forsurely there is presently little or no difference between the State’shanding public funds directly to a private school and handingthem to a pupil to do so.108Given the clear and compelling analysis of Knowlton and the Attorney General’sopinion, it is remarkable that one of the few times the Iowa Supreme Court hasconstrued the compulsion guarantee, albeit in a case not involving schools, it got thematter completely wrong.109 In the 1976 case of Rudd v. Ray, the Iowa Court heldthat, notwithstanding the compulsion guarantee, it is permissible for the State ofIowa to use public funds to provide dedicated chapels and state-employee chaplainsin the state’s prisons.110 In coming to this remarkable conclusion, the Rudd majorityconflated the compulsion guarantee with the establishment clause of the Iowa con-stitution.111 The Rudd majority asserted:Like similar provisions included in the constitution of all sisterstates Art. I, § 3 has a common origin and parallel history withthe First Amendment to the United States Constitution. All suchprovisions were aimed at disestablishment of state churches or,in cases of later western states such as Iowa, at preventing theestablishment of state churches.112The Rudd majority did concede that the language of the Iowa constitution isdifferent than that of the Federal Constitution in that Iowa includes both languagethat exactly tracks the Establishment Clause and, in addition, the compulsion guar-antee. But, they asserted, the difference in language did not suggest that the framersof the state constitution intended anything other than a redundant guarantee againsta state church:To the extent our provision differs from the First Amendment tothe United States Constitution we think our framers were merelyaddressing the evils incident to the state church. The framersaddressed and provided a defense against the evils incident to astate church, forced taxation to support the same, and the pay-ment of ministers from taxation.113108 Id. at 144.109 This discussion is based on the analysis of Rudd in Allan W. Vestal, Faithfully En-forcing the Religious Liberty Guarantees of the Northwest Territory States, 34 B.Y.U. J. PUB.L. 403, 426–31 (2020) [hereinafter Vestal, Faithfully Enforcing].110 248 N.W.2d 125, 128 (Iowa 1976).111 IOWA CONST. art. I, § 3.112 Rudd, 248 N.W.2d at 130.113 Id. at 132. But see Griswold Coll. v. State, 46 Iowa 275, 282 (1877). In Griswold, the2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 793The Rudd majority conflated the compulsion guarantee and the EstablishmentClause, ignoring the plain meaning of the former and the unambiguous history ofthe latter. The history of state constitution religious liberty adoptions between 1789and the drafting of the Iowa compulsion guarantee in 1844 helps us to understandthe error of the Rudd majority.The Rudd majority was grossly misleading in its presentation of the history ofstate constitutional adoptions of provisions paralleling the Federal EstablishmentClause. The majority speaks of “provisions . . . aimed at disestablishment of statechurches or, in cases of later western states such as Iowa, at preventing the establish-ment of state churches.”114 “[S]imilar provisions,” the Rudd majority asserts, wereincluded in the constitution of all the “sister states . . .”115 This is simply not true.Following the adoption of the First Amendment, fifteen states were admitted tothe Union prior to Iowa in 1846. Fourteen of those fifteen states adopted free-exercise provisions modeled on the Free Exercise Clause of the First Amendment.116In contrast, only one—Alabama in 1819—tracked the Establishment Clause of theFirst Amendment.117 Consistent with the analysis that establishment had been super-seded by issues of compulsion and preference, eleven of the fifteen states admittedbetween 1789 and 1846 had compulsion guarantees118 and eleven had preferenceguarantees.119 Fourteen of the fifteen had a compulsion guarantee, a preference guar-antee, or both.120Iowa Supreme Court considered whether a house constructed by an Episcopal college for oneof its professors was exempt from taxation. The Court reversed the trial court determinationthat the house was taxable. Id. In doing so, the court addressed the argument that exemptingchurch property from taxation was a violation of Article 1, Section 3, Clause 3, the compul-sion guarantee:The argument is, that exemption from taxation of church property is thesame thing as compelling contribution to churches to the extent of theexemption. We think the constitutional prohibition extends only to thelevying of tithes, taxes, or other rates for church purposes, and that itdoes not include the exemption from taxation of such church propertyas the legislature may think proper.Id. In its analysis, the court implicitly both rejected the later Rudd analysis subsuming thecompulsion guarantee under the establishment clause and confirmed that educational ac-tivities were within the scope of the compulsion guarantee’s coverage.114 Rudd, 248 N.W.2d at 130.115 Id.116 Vestal, Faithfully Enforcing, supra note 109, at 428 n.126.117 ALA. CONST. art. I, § 7 (1819) (“There shall be no establishment of religion by law . . . .”).118 Vestal, Faithfully Enforcing, supra note 109, at 428 n.128.119 Id. at 428 n.129. Preference guarantees protect against the state favoring one religion overanother. Id. at 422–24. For example, the Wisconsin constitutional provision reads, “nor shall . . .any preference be given by law to any religious establishments or modes of worship . . . .”WIS. CONST. art. I, § 18.120 The fourteen states are: Alabama, Arkansas, Florida, Illinois, Indiana, Kentucky, Maine,Minnesota, Mississippi, Missouri, Ohio, Tennessee, Texas, and Vermont.794 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771“Following the admission of Iowa to the Union in 1846, the admission of thenext fifteen states extended to Wyoming in 1890. All fifteen of those states adoptedfree-exercise provisions.”121 “Not one of the fifteen tracked the EstablishmentClause of the First Amendment.”122 Nevertheless, nine of the fifteen had compulsionguarantees123 and thirteen had preference guarantees.124 Thirteen of the fifteen hada compulsion guarantee, a preference guarantee, or both.125 “The admission of thelast six states following Wyoming in 1890 present[] a somewhat different picture,”but understandably so.126 Once again, free-exercise provisions were common, withfive of the six states adopting them. But in a change from the pattern followingadoption of the First Amendment, half of the new states tracked the EstablishmentClause.127 The reasons for the three Establishment Clause exceptions are clear. Utahin 1895 was unusual because of its history with the Church of Jesus Christ of Latter-day Saints. By the time Alaska and Hawaii became states in 1959, EstablishmentClause jurisprudence had ceased to be dormant. Among the final six states, onlyNew Mexico had either a compulsion or preference provision; it had both.The assertion of the Rudd majority that establishment language was included inthe constitutions of all the states is wrong: only four states have an establishmentclause, so framed, in their initial constitutions.The majority opinion in Rudd was based on an egregious misunderstanding ofAmerican religious and political history. The Federal Establishment Clause and theIowa compulsion guarantee were drafted at very different times, responding to verydifferent conditions. Treating the Iowa compulsion guarantee as a mere restatementof the Establishment Clause is simply wrong.128The error of the Rudd majority was avoidable because by 1976, when the errorwas made, the Iowa Supreme Court had already correctly discussed the compulsionguarantee as a religious liberty protection distinct from the establishment clause inGriswold,129 Davis,130 and Moore.131 The Rudd error was particularly egregious121 Vestal, Faithfully Enforcing, supra note 109, at 428–29.122 Id. at 429.123 Id.124 Id.125 The thirteen states are: California, Colorado, Idaho, Kansas, Minnesota, Montana,Nebraska, Nevada, North Dakota, South Dakota, West Virginia, Wisconsin, and Wyoming.See Vestal, Faithfully Enforcing, supra note 109, at 429 n.132.126 See id. at 429.127 UTAH CONST. art. I, § 4 (“The State shall make no law respecting an establishment ofreligion . . . .”); ALASKA CONST. art. I, § 4 (“No law shall be made respecting anestablishment of religion . . . .”); HAW. CONST. art. I, § 4 (amended 1978) (“No law shall beenacted respecting an establishment of religion . . . .”).128 Vestal, Faithfully Enforcing, supra note 109, at 429–30.129 See generally Griswold Coll. v. State, 46 Iowa 275 (1877).130 See generally Davis v. Boget, 50 Iowa 11 (1878).131 See generally Moore v. Monroe, 20 N.W. 475 (Iowa 1884).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 795because the Iowa Supreme Court had correctly interpreted the state’s compulsionguarantee at length six decades earlier, in Knowlton.132 It is, perhaps, indicative ofthe intellectual weakness of the Rudd majority opinion that it didn’t even address thesubstance of Knowlton.133The analyses of the Iowa authorities that have carefully construed it confirm thatthe compulsion guarantee of Article 1, Section 3, Clause 3 is distinct from the es-tablishment provision of the first clause. Further, the Knowlton decision makes itclear that the use of tax-generated public funds for religious schools is a violationof the compulsion guarantee.134B. The Historical Record and Setting of the Iowa Compulsion GuaranteeWhen considering the compulsion guarantee, it is helpful to look at the historyof the Iowa constitutional conventions where it was drafted, and the historical con-text in which the adoption of the compulsion guarantee took place.The Iowa compulsion guarantee was included in the first constitution drafted forthe state in 1844.135 The historical record is quite spare as to what the draftersintended. There are no available contemporaneous statements of the constitutionalconvention delegates,136 and the reports of the debates include many topics related132 Vestal, Faithfully Enforcing, supra note 109, at 430.133 The majority opinion cites Knowlton only once, for the proposition that “[w]e haveconsidered Art. I § 3, in very few cases,” and contains no substantive analysis of the case.See Rudd v. Ray, 248 N.W.2d 125, 132 (Iowa 1976). In contrast, in his persuasive dissent,Justice Uhlenhopp cited Knowlton as a main case on the compulsion guarantee and relied onits substance: “In the Knowlton case this court stated broadly, ‘In this state the Constitution(article I § 3) forbids the establishment by law of any religion or interference with the freeexercise thereof and all taxation for ecclesiastical support.’” See id. at 135 (Uhlenhopp, J.,dissenting) (citing Knowlton v. Baumhauer, 166 N.W. 202, 207 (Iowa 1918)).134 See Knowlton, 166 N.W. at 214.135 Allan W. Vestal, “In the Name of Heaven, Don’t Force Men to Hear Prayers”:Religious Liberty and the Constitutions of Iowa, 66 DRAKE L. REV. 355, 431–33 (2018)[hereinafter Vestal, In the Name of Heaven]. The constitution of 1844 was drafted inconnection with the Iowa Territory’s first ill-fated attempt at statehood. Id. at 394. A conflictwith Congress about the boundaries of the new state resulted in the rejection of the initialproposal by the voters on two occasions. Id. at 394–95. Iowa gained statehood in 1846 whenthe drafters and voters accepted the congressional preference on boundaries. Id. at 396. Theconstitution of 1844 became the basis for the successful constitution of 1846, and the com-pulsion guarantee language is identical. Compare IOWA CONST. art. II, § 3 (1844), with IOWACONST. art. I, § 3 (1846).136 Vestal, In the Name of Heaven, supra note 135, at 433; see FRAGMENTS OF THEDEBATES OF THE IOWA CONSTITUTIONAL CONVENTIONS OF 1844 AND 1846 ALONG WITHPRESS COMMENTS AND OTHER MATERIALS ON THE CONSTITUTIONS OF 1844 AND 1846, at 9(Benjamin F. Shambaugh ed., 1900) [hereinafter SHAMBAUGH, FRAGMENTS].796 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771to the bill of rights, but no debates of the compulsion guarantee itself.137 The com-pulsion guarantee was not the subject of discussion during either the constitutionalconvention of 1846 or the gathering in 1857, when the current constitution wasadopted.138However, there are episodes from the constitutional conventions that aid in ourunderstanding of the intention behind the compulsion guarantee. Professor BenjaminF. Shambaugh, the esteemed early 20th-century Iowa historian set the context forone episode from the 1844 constitutional convention:[T]he pioneers of Iowa were not always puritan in observing theforms of religion. Their liberal attitude and their fearless couragein expressing views on so delicate a subject were displayed in aninteresting debate in the Convention on a resolution offered byMr. Sells to the effect “that the Convention be opened everymorning by prayer to Almighty God.”139After initial attempts at compromise—having a prayer before the conventioncame to order and “providing a room for those who did not wish to hear prayers”—the issue was joined.140 It is telling that the delegates discarded the language ofestablishment for the words of voluntarism: voluntary, force, and compulsion.141 Onedelegate framed his opposition to official prayer in terms of violating the naturalrights of the members:Mr. Kirkpatrick said that he, too, believed in a “superintendingProvidence” that “guided and controlled our actions.” He was afirm believer in Christianity, but he “did not wish to enforceprayer upon the Convention.” Prayer, he argued was a moral pre-cept which could not be enforced without violating or infringingthe “natural rights” of the members to worship God each in hisown way. If “we can enforce this moral obligation, then we have137 Vestal, In the Name of Heaven, supra note 135, at 433; see SHAMBAUGH, FRAGMENTS,supra note 136, at 9.138 Vestal, In the Name of Heaven, supra note 135, at 437–38; see BENJAMIN F.SHAMBAUGH, HISTORY OF THE CONSTITUTIONS OF IOWA 299–300 (1902) (regarding the 1846convention) [hereinafter SHAMBAUGH, HISTORY OF THE CONSTITUTIONS]; 1 W. BLAIR LORD,THE DEBATES OF THE CONSTITUTIONAL CONVENTION; OF THE STATE OF IOWA, ASSEMBLEDAT IOWA CITY 101 (Luse, Lane & Co. 1857).139 SHAMBAUGH, HISTORY OF THE CONSTITUTIONS, supra note 138, at 186; BENJAMIN F.SHAMBAUGH, THE CONSTITUTIONS OF IOWA 124–25 (1934) [hereinafter SHAMBAUGH,CONSTITUTIONS OF IOWA]; SHAMBAUGH, FRAGMENTS, supra note 136, at 10.140 Vestal, In the Name of Heaven, supra note 135, at 381–82.141 See id. at 383–84.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 797a right . . . to make every member of this Convention go uponhis knees five times a day.” Mr. Kirkpatrick cared nothing forprecedent. “This was a day of improvement. Let those who be-lieved so much in prayer, pray at home.” After all “public prayerwas too ostentatious.”142Another delegate framed his opposition in terms of compulsion and violation of therights of man:Mr. Bailey . . . . thought that “people were becoming moreliberal in [their religious] sentiment. No man could say that heever opposed another on account of religion; he respected menwho were sincerely religious; but he wanted to have his ownopinions.” Mr. Bailey feared that members might be compelled,under the resolution, “to hear what they were opposed to. Thiswas contrary to the inalienable rights of man. If members did notfeel disposed to come, it took away their happiness, contrary tothe Declaration of Independence and the principle laid down byThomas Jefferson, the Apostle of Liberty.”143One delegate opposed the resolution for official prayer “because he thought thatit was inconsistent with the principle of religious freedom as set forth in the Bill ofRights.”144 Another announced his opposition simply: “[i]n the name of Heaven . . .don’t force men to hear prayers.”145 In the end, the 1844 convention rejected theproposal for official prayer by a vote of forty-four to twenty-six.146Another episode, which occurred during the 1857 convention, also gives an in-dication of the thinking of the conventions as to matters of religion and helps relateto the religious landscape of the age. One of the delegates proposed changing thewording of the establishment clause.147 The draft provided: “the general assemblyshall make no law respecting an establishment of religion.”148 The proposal was tochange “an establishment of religion” to “the establishment of religion.”149142 SHAMBAUGH, CONSTITUTIONS OF IOWA, supra note 139, at 125–26.143 Id. at 127–28 (alteration in original).144 Id. at 128.145 Id. at 129.146 Vestal, In the Name of Heaven, supra note 135, at 393. The vote, forty-four to twenty-six,was technically to indefinitely postpone consideration of the resolution; it was, however,never brought back for consideration. SHAMBAUGH, CONSTITUTIONS OF IOWA, supra note139, at 129.147 Vestal, In the Name of Heaven, supra note 135, at 438.148 Id.149 Id.798 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771One of the other delegates explained: “As the section stands now, it is equivalentto saying that there shall be no law for the establishment of any religion. If it waschanged so as to read ‘the establishment of religion,’ it might seem that it referredto the establishment of some particular religion.”150 The broader, “an establishmentof religion,” language was retained.151A great deal can be learned as to the drafters’ rationale behind the compulsionguarantee by reviewing the history of the times during which the drafters met andacted. The tripartite religious liberty treatment of Iowa’s Constitution—containingan establishment clause, a free exercise clause, and a compulsion guarantee—is ex-plained by the religious landscape of the nation in 1844 when the drafters first met.By that time, the nation was approaching the end of the Second Great Awakening,the Protestant religious revival which began in 1790 and lasted for the next sixtyyears.152 Religion was no longer narrow and hierarchical; it had become individualand democratic. Charles Eliot Norton, editor of the North American Review ex-plained it:The relation between God and the soul is original for every man.His religion must be his own. No two men think of God alike.No man or men can tell me what I must think of him. If I ampure of heart, I see him, and know him;—& creeds are but fic-tions that have nothing to do with the truth.153As a result of the Second Great Awakening, religion in the United States becamevoluntary and democratic. If every American could speak with God and know hisor her own religious truth, if each person’s understanding was as valid as every otherperson’s, then there was no basis upon which any civil authority could legitimatelydiscriminate among them. Nor could any civil authority legitimately force a citizento participate in, or give support to, a religious program other than his or her own.154150 W. BLAIR LORD, supra note 138, at 1007; Vestal, In the Name of Heaven, supra note135, at 438.151 IOWA CONST. art. 1, § 3 (“The general assembly shall make no law respecting anestablishment of religion.”).152 See Vestal, In the Name of Heaven, supra note 135, at 371–72.153 Id. at 372–73; JAMES TURNER, WITHOUT GOD, WITHOUT CREED: THE ORIGINS OFUNBELIEF IN AMERICA 133 (quoting Charles Eliot Norton, “editor of the nation’s mostrespected magazine, the North American Review,” as he “spelled out his basic principle ofbelief for a Midwestern minister” in 1865).154 See generally A COSMOPOLITE, A REVIEW OF THE PROSECUTION AGAINST ABNERKNEELAND, FOR BLASPHEMY (Boston 1835). A pamphleteer wrote at the time of the blas-phemy trial of Abner Kneeland, the last man imprisoned in the United States for that crimeof conscience, describing the spirit of his contemporaries:[T]he public . . . [he said] are a new race of young people, ardent,generous, liberal, moral people; and though we would not say that a2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 799The voluntary and democratic character of religion in the United States was re-flected in an evolution in the status of religious denominations as established officialstate churches. By 1819, only one of the original thirteen colonies, Massachusetts,still had an established church.155 It lingered, in greatly weakened form until 1836.156Thus, by the time the drafters convened to write Iowa’s first constitution in 1844,no state in the Union had an established church.157As Alexis de Tocqueville wrote in 1835, the separation of church and state wascomplete.158 The disestablishment of American churches had been accomplished andthe establishment issue was dead:I found that all of these men differed among themselves only onthe details; but all attributed the peaceful dominion that religionexercises in their country principally to the complete separationof Church and State. I am not afraid to assert that, during myvisit in America, I did not meet a single man, priest or layman,who did not agree on this point.159Thus, when Iowa was admitted to the Union, it was simply not within the contem-plation of state constitution drafters that a state might establish an official church.Through the Second Great Awakening, the drafters of the initial constitutionsof newly admitted states drafted “new types of provisions to address the religiousliberty problems their new state governments might realistically encounter.”160Might the state use public funds to support religious activities, not of a singleestablished state church, but of any church or churches? Might the state treat somechurches differently than others, not in the sense of establishing a single statechurch, but rather by treating some churches more favorably than others?majority of them are indifferent to the truths of the christian religion,or unbelievers in its dogmas, we do state it as our decided opinion, thata vast majority are disposed to have perfect freedom of thought and ofdiscussion. . . . [W]hen coercion and the power of the law, are calledin support or to spread opinions, then will be seen the rising up of theliberal spirit of the age. This is the prevalent, existing feeling. . . .Id. at 31.155 Two, Pennsylvania and Rhode Island, never had established state churches. Ten weredisestablished by 1819: Delaware (1776), New Jersey (1776), North Carolina (1776), NewYork (1777), Virginia (1776–79), Maryland (1785), South Carolina (1790), Georgia (1798),Connecticut (1818), and New Hampshire (1819). Vestal, Faithfully Enforcing, supra note109, at 410, 411 n.41.156 Id. at 411.157 Among the states other than the original thirteen, Vermont disestablished in 1807 andthe remaining states entered the union without established state churches. Id. at 411 n.41.158 Id. at 411.159 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 480 (Eduardo Nolla ed., JamesT. Schleifer, trans., Liberty Fund 2012) (1835).160 Vestal, Faithfully Enforcing, supra note 109, at 412.800 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771These drafters developed nuanced clauses in response to the situation in whichthey found themselves in the 19th century. Through the middle of the century, whenIowa was admitted, they adopted two types of “post-establishment religious libertyguarantees.”161 Compulsion guarantees protected against citizens being compelledto participate in or support religious activities through taxes or otherwise. Preferenceguarantees protected against the state favoring one religion over another.162 In theIowa constitutions of 1844, 1846, and 1857, the drafters included a compulsionguarantee but not a preference guarantee.There are indications in history as to how Iowans of the 19th century interpretedthe compulsion guarantee. For example, in his 1876 inaugural address, Iowa Gover-nor Samuel J. Kirkwood, a Republican, spoke of the prospect of using state fundsto support religious schools:Fears have of late been freely expressed in certain states, and tosome extent in our own, that it is a settled purpose with some todivert the school-fund from its legitimate object, and use it, atleast partially, for the maintenance of private and sectarianschools, and thus eventually to destroy the school system. I hopethis is a groundless fear, or, that if such purpose has been enter-tained, it will be abandoned.163Governor Kirkwood continued, making what is presumably a reference to the Con-stitutional religious liberty protection of the compulsion guarantee: “Persistence init will certainly place those engaged in it in direct hostility to the settled and cher-ished policy of the state . . . .”The historical record and setting confirm that the compulsion guarantee ofArticle 1, Section 3, Clause 3 is religious liberty protection, assuring that citizens arenot required to support religious practices in which they do not believe. Reflectingthe voluntary and democratic ethos of the period, the compulsion guarantee was notmotivated by an antipathy towards religion or any particular religions. Rather, it wasmotivated by a desire to protect individual autonomy in matters of faith.164 It wasnot, in short, a Blaine Amendment. Iowa never adopted that type of anti-Catholicprovision. Indeed, when the Iowa compulsion guarantee was drafted, in 1844, JamesG. Blaine, after whom the odious amendments are named, was a mere boy of 14.165161 Id.162 Later, in the last quarter of the nineteenth century, many states adopted a third type ofstate constitutional religious provision, the Blaine Amendments. These provisions grew outof anti-Catholic bias and were an attempt to preclude the use of state funds to supportCatholic schools. Iowa did not adopt a Blaine Amendment. Id. at 424–26.163 Inaugural Address of Samuel J. Kirkwood, Governor of Iowa Delivered Before the TwoHouses of the General Assembly January 13, 1876, at 10 (Des Moines, R.P. Clarkson 1876).164 See Vestal, Faithfully Enforcing, supra note 109, at 409.165 See id. at 424.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 801C. The Origins of the Iowa Compulsion GuaranteeFinally, when considering the compulsion guarantee, it is helpful to look atwhere the language of the provision came from and how that language has beeninterpreted by the courts of the state of origin.The specific wording of the Iowa compulsion guarantee is important. Twenty-eight states have compulsion guarantees.166 Their wording divides them into twogroups. The first, larger group are those that speak merely in terms of “supporting”religious activities. For example, South Dakota’s compulsion guarantee provides:“No person shall be compelled to attend or support any ministry or place of worshipagainst his consent . . . .”167 Similarly, Minnesota provides: “nor shall any man becompelled to attend, erect or support any place of worship, or to maintain anyreligious or ecclesiastical ministry, against his consent . . . .”168 Twenty-four of thetwenty-eight states with compulsion guarantees can be characterized as such“support guarantees.”169The remaining four of the twenty-eight compulsion guarantee states can be charac-terized as having “taxation guarantees.” These guarantees speak specifically in termsof not compelling citizens to pay taxes to support religious activities. For example,Michigan’s compulsion guarantee states: “No person shall be compelled . . . againsthis consent, to contribute to the erection or support of any place of religious worship,or to pay tithes, taxes or other rates for the support of any minister of the gospel orteacher of religion.”170 Alabama,171 Iowa,172 Michigan,173 and New Jersey174 currently166  See infra Appendix A.167  S.D. CONST. art. VI, § 3.168  MINN. CONST. art. I, § 16.169 ARK. CONST. art. II, § 24; COLO. CONST. art. II, § 4; CONN. CONST. art. VII; DEL.CONST. art. I, § 1.; ILL. CONST. art. I, § 3; IND. CONST. art. I, § 4; KAN. CONST., BILL OFRIGHTS § 7; KY. CONST. § 5; MD. CONST., DECLARATION OF RIGHTS art. 36; MINN. CONST.art. I, § 16; MO. CONST. art. I, § 6; NEB. CONST. art. I, § 4; N.M. CONST. art. II, § 11; OHIOCONST. art. I, § 7; PA. CONST. art. I, § 3; R.I. CONST. art. I, § 3; S.D. CONST. art. VI, § 3;TENN. CONST. art. I, § 3; TEX. CONST. art. I, § 6; VT. CONST. ch. I, art. 3; VA. CONST. art. I,§ 16; W. VA. CONST. art. III, § 15; WIS. CONST. art. I, § 18.170 MICH. CONST. art. I, § 4.171 ALA. CONST. art. I, § 3 (“[T]hat no one shall be compelled by law . . . to pay any tithes,taxes, or other rate for building or repairing any place of worship, or for maintaining anyminister or ministry . . .”).172 IOWA CONST. art. I, § 3 (“[N]or shall any person be compelled to . . . pay tithes, taxes,or other rates for building or repairing places of worship, or the maintenance of any minister,or ministry.”).173 MICH CONST. art. I, § 4 (“No person shall be compelled . . . against his consent, tocontribute to the erection or support of any place of religious worship, or to pay tithes, taxesor other rates for the support of any minister of the gospel or teacher of religion.”).174 N.J. CONST. art. I, § 3 (“[N]or shall any person be obliged to pay tithes, taxes, or other802 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771have constitutions that use the “tithes, taxes or any other rates” formulation.175 Thefirst constitution to use the formulation was New Jersey in 1776.176 By the time Iowajoined the Union in 1846, Georgia (1798),177 Alabama (1819),178 and Michigan(1835)179 adopted the formulation, and New Jersey passed a second constitution(1844)180 retaining it. Following Iowa in 1844, “tithes, taxes or any other rates”formulations were readopted by Michigan (1850),181 Iowa (1857),182 Alabama(1861),183 Alabama (1865),184 Alabama (1901),185 Michigan (1908/1909),186 NewJersey (1947),187 Michigan (1963),188 and Alabama (2022).189rates for building or repairing any church or churches, place or places of worship, or for themaintenance of any minister or ministry, contrary to what he believes to be right or hasdeliberately and voluntarily engaged to perform.”).175 Georgia used the formulation in its constitution of 1798. GA. CONST. art. IV, § 10 (1798)(“[N]or shall he ever be obliged to pay tithes, taxes, or any other rate, for the . . . maintenanceof any minister or ministry . . . .”). Subsequent Georgia constitutions omitted the formulation,starting with the constitution of 1861. GA. CONST. art. I, § 7 (1861).Three other states have compulsion guarantees that use some similar terminology. Idahohas language prohibiting compulsion to pay tithes, but not taxes. IDAHO CONST. art. I, § 4(“No person shall be required to . . . pay tithes against his consent . . . .”). Virginia and WestVirginia have constitutional provisions which preclude the legislature from authorizingreligious societies or state subdivisions from passing taxes for the support of any ministry.VA. CONST. art. I, § 16 (“And the General Assembly shall not . . . pass any law requiring orauthorizing any religious society, or the people of any district within this Commonwealth,to levy on themselves or others, any tax . . . for the support of any church or ministry . . . .”);W. VA. CONST. art. III, § 15 (“[A]nd the Legislature shall not . . . pass any law requiring orauthorizing any religious society, or the people of any district within this state, to levy onthemselves, or others, any tax . . . for the support of any church or ministry . . . .”).176 N.J. CONST. art. XVIII (1776).177 GA. CONST. art. IV, § 10 (1798).178 ALA. CONST. art. I, § 3 (1819).179 MICH. CONST. art. I, § 4 (1835).180 N.J. CONST. art. I, § 3 (1844).181 MICH. CONST. art. IV, § 24 (1850).182 IOWA CONST. art. I, § 3 (1857).183 ALA. CONST. art. I, § 3 (1861).184 ALA. CONST. art. I, § 4 (1865).185 ALA. CONST. art. I, § 3 (1901).186 MICH. CONST. art. II, § 3 (1909).187 N.J. CONST. art. I, § 3.188 MICH. CONST. art. I, § 4.189 The language and numbering were unchanged in the Alabama constitution adopted in2022. ALA. CONST. art. I, § 3 (2022), https://www.legislature.state.al.us/pdf/lsa/proposed-constitution/2022-constitution-statewide.pdf [https://perma.cc/CW9K-6E2H]; see Taylor Lane& C.P. Bailey, Alabama 2022 Constitution and Amendments Now in Effect, NEWS COURIER(Nov. 30, 2022), https://www.enewscourier.com/news/local_news/alabama-2022-constitution-and-amendments-now-in-effect/article_18afc294-7018-11ed-ab07-af95f7b57102.html[https://perma.cc/MKZ2-CKS3].2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 803While it certainly is not to say that the support guarantee formulation is insuffi-cient to bar tax-financed education savings account payments to religious schools,the taxation guarantee formulation provides a more targeted defense against suchtax-financed payments.How, then, was it that the Iowa drafters came to adopt the stronger taxationguarantee formulation? The contemporaneous sources from the Iowa constitutionalconvention of 1844 do not answer the question. It might be speculated that a drafteroriginally from New Jersey, probably a lawyer familiar with the 1776 formulation,caused the adoption. This theory is not plausible: there was only one member of theconvention whose native state was New Jersey, Andrew Hooten.190 He was a farmer,not a lawyer, and was not a member of the standing committee on the bill of rights.191Another possibility is that the New Jersey language was used because the NewJersey constitution of 1844 had just been ratified and it was in the news. Althoughthe timing works, it seems implausible that the retention without change of a clausefrom the 1776 New Jersey constitution to its 1844 constitution would be at all news-worthy in Iowa.192 The most plausible theory is that the Iowa convention adopted theNew Jersey formulation because it was substantively preferable to the alternatives.This would be consistent with the other actions the 1844 convention took withrespect to matters of religion: rejecting compulsory public prayer and rejectingdiscrimination based on religious belief.193Given the origins of the Iowa taxation guarantee in the New Jersey provision,it is helpful to see how New Jersey courts have interpreted the provision. The formu-lation traces back to the initial New Jersey constitution, adopted in 1776.194 The NewJersey Supreme Court said that the constitution “rejected the establishment of andcompelled support for religion in two clauses. The first clause contains an expressguarantee of the right to freedom from compelled support.”195 The compulsionguarantee read:190 Vestal, In the Name of Heaven, supra note 135, at 436 n.517.191 Id.192 The 1844 New Jersey constitutional convention adjourned on June 29, 1844, and thenew constitution was ratified on August 13, 1844. PROCEEDINGS OF THE NEW JERSEY STATECONSTITUTIONAL CONVENTION OF 1844, at lxv (1942). The 1844 Iowa constitutional con-vention convened on the first Monday in October. J.A. Swisher, Constitution Making in1844, 25 PALIMPSEST 311, 313 (1944). The convention approved the 1844 constitution onNovember 1, 1844. Iowa Constitution—Conventions, IOWA LEGIS., https://www.legis.iowa.gov/law/statutory/constitution/constConventions# [https://perma.cc/8PBR-E4YT]; see Vestal,In the Name of Heaven, supra note 135, at 436.193 See Vestal, In the Name of Heaven, supra note 135, at 380 (regarding official prayer);id. at 429 (regarding witness competence based on religious belief).194 Freedom From Religion Found. v. Morris Cnty. Bd. of Chosen Freeholders, 181 A.3d992, 998 (N.J. 2018).195 Id.804 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771That no Person shall ever within this Colony be deprived of theinestimable Privilege or worshipping Almighty God in a Manneragreeable to the Dictates of his own Conscience; nor under anyPretence [sic] whatsoever compelled to attend any Place ofWorship, contrary to his own Faith and Judgment; nor shall anyPerson within this Colony ever be obliged to pay Tithes, Taxes,or any other Rates, for the Purpose of building or repairing anyChurch or Churches, Place or Places of Worship, or for theMaintenance of any Minister or Ministry, contrary to what hebelieves to be right, or has deliberately or voluntarily engagedhimself to perform.196The second clause “contains language similar to the federal Establishment Clause. . . .”197 The New Jersey Supreme Court found: “The two clauses, in combination,reveal that . . . the freedom from being compelled to fund religious institutionsthrough taxation . . . was a grant of personal liberty . . . .”198The New Jersey constitution of 1776 was notable: “[O]f the twelve states thatadopted constitutions from 1776 to 1780, none included a compelled support clauseas precise and clear as [New Jersey’s].”199 Indeed, the less robust formulations of thePennsylvania constitution of 1776 and the Vermont constitution of 1777 are quitesimilar to the contemporary support-style compulsion guarantees. Having a formalstate constitutional prohibition on the use of tax funds to support religion was commonin the early days of the Republic: “Most States that sought to avoid an establishmentof religion around the time of the founding placed in their constitutions formal pro-hibitions against using tax funds to support the ministry.”200 However, in part basedon its specific treatment of taxation, the New Jersey Supreme Court observed that NewJersey’s compulsion guarantee “stands out as particularly specific for its time.”201196 Id. (quoting N.J. CONST. art. XVIII (1776)).197 Id. at 999. The second clause reads:That there shall be no Establishment of any one religious Sect in thisProvince in Preference to another, and that no Protestant Inhabitant ofthis Colony shall be denied the Enjoyment of any civil Right merely onAccount of his religious Principles, but that all Persons, professing aBelief in the Faith of any Protestant Sect who shall demean themselvespeaceably under the Government as hereby established, shall becapable of being elected into any Office of Profit or Trust, or being aMember of either Branch of the Legislature, & shall fully & freely enjoyevery Privilege & Immunity enjoyed by other their Fellow-Subjects.Id.198 Id.199 Id.200 Id. at 1000 (quoting Locke v. Davey, 540 U.S. 712, 723 (2004)).201 Id. at 999–1000.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 805The New Jersey constitutions of 1844202 and 1947,203 which remain in effect, madeno substantive changes in the compulsion guarantee.The ways in which the New Jersey Supreme Court has analyzed and applied thecompulsion guarantee are instructive. In Freedom From Religion Foundation v.Morris County Board of Chosen Freeholders, the court addressed the constitutionalityunder the compulsion guarantee of the award of state-funded historic preservationgrants to churches. Having traced the history and meaning of the compulsion guar-antee as outlined above, the court faced the issue of whether such grants to churchesviolated the compulsion guarantee—the “Religious Aid Clause” in the nomenclatureadopted by the court204:The first step in our analysis is to determine whether the historicpreservation grants awarded to repair twelve churches violatedthe Religious Aid Clause of the State Constitution. In light of theplain language of the clause, the question answers itself. . . . [F]ormore than 240 years, the Religious Aid Clause has banned theuse of public funds to build or repair any place of worship. . . .We . . . find that the County’s grants ran afoul of the State Consti-tution’s Religious Aid Clause.205202 N.J. CONST. art. I, § 3 (1844) read that:No person shall be deprived of the inestimable privilege of worship-ping Almighty God in a manner agreeable to the dictates of his ownconscience; nor under any pretence [sic] whatever be compelled toattend any place of worship contrary to his faith and judgment; norshall any person be obliged to pay tithes, taxes, or other rates forbuilding or repairing any church or churches, place or places ofworship, or for the maintenance of any minister or ministry, contraryto what he believes to be right, or has deliberately and voluntarilyengaged to perform.Id. (emphasis added).203 N.J. CONST. art. I, § 3 (1947). The current compulsion guarantee clause says that:No person shall be deprived of the inestimable privilege of worship-ping Almighty God in a manner agreeable to the dictates of his ownconscience; nor under any pretense whatever be compelled to attendany place of worship contrary to his faith and judgment; nor shall anyperson be obliged to pay tithes, taxes, or other rates for building orrepairing any church or churches, place or places of worship, or forthe maintenance of any minister or ministry, contrary to what hebelieves to be right or has deliberately and voluntarily engaged toperform.Id. (emphasis added).204 The court refers to the New Jersey compulsion guarantee as the “Religious AidClause.” Morris Cnty., 181 A.3d at 994.205 Id. at 1004, 1006. The second part of the Morris County analysis was the question ofwhether the New Jersey compulsion guarantee was at odds with the Federal Free Exercise806 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771The Morris County court spoke of the interest the drafters sought to advance inenacting the compulsion guarantee:As the history . . . reveals, the interest the [Religious Aid] Clauseseeks to advance “is scarcely novel.” The Religious Aid Clausereflects a substantial concern of the State’s founders in 1776: toensure that taxpayer funds would not be used to build or repairhouses of worship, or to maintain any ministry. That choicereversed the approval of established religion . . . it also divergedfrom the practice of other states that allowed established religionat the time.206The Morris County court was clear about the importance of the public policy choicewhich was expressed in the New Jersey compulsion guarantee: “New Jersey’santiestablishment interest in not using public funds to build or repair churches ormaintain any ministry ‘lay at the historic core of the Religion Clauses.’ . . . NewJersey’s historic and substantial interest against the establishment of, and compelledsupport for, religion is indeed ‘of the highest order.’”207 The court was equally clearthat the public policy which motivated the compulsion guarantee was not animustowards religion: “[T]he antiestablishment interest New Jersey expressed in 1776did not reflect animus toward any religion. The Religious Aid Clause was enactedbefore the Federal Constitution; it is not a Blaine Amendment. No history of dis-crimination taints the provision.”208Two weeks after Morris County, the New Jersey Supreme Court again addressedthe New Jersey compulsion guarantee, this time in the context of awarding public-funded grants “to a yeshiva and to a theological seminary as part of a state programto subsidize facility and infrastructure projects for higher education institutions inNew Jersey.”209 Although the Hendricks court did not come to a final determinationof the matter—it was remanded for development of the record—the decision doesprovide some insight into the New Jersey compulsion guarantee.210Clause. See id. at 1006–12. The court found “that the application of the Religious Aid Clausein this case does not violate the Free Exercise Clause.” Id. at 1012. The Morris County courtspoke four years before the Supreme Court decision in Carson. See Carson v. Makin, 142S. Ct. 1987, 1987 (2022).206 181 A.3d at 1011.207 Id. at 1012 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.2012, 2023 (2017)).208 Id.209 ACLU of N.J. v. Hendricks, 183 A.3d 931, 933 (N.J. 2018).210 In addition to the claim based on Article I, Paragraph 3 of the New Jersey Constitution(the Religious Aid Clause or compulsion guarantee), plaintiffs also made claims based onArticle 1, Paragraph 4 (the Establishment Clause), and Article VIII, Section 3, Paragraph 32024] TAX FUNDS FOR RELIGIOUS SCHOOLS 807In remanding the matter for development of the record, the Hendricks courtindicated three questions to be addressed:(1) the sectarian nature of these institutions of higher education;(2) whether, in the setting of the curriculum and training programsof these particular institutions, the grant funds will necessarilybe used in the “maintenance of any minister or ministry”; and(3) the adequacy of promised restrictions, or other curbs, againstsectarian use of the grant proceeds at present and into the future.211The New Jersey taxation formulation was special in terms of both its timing andits content. As to the timing of the provision, one commentator noted:New Jersey is special with regard to the First Amendment be-cause during the adoption of the state Constitution in 1776, thestate included a Religious Aid Clause. . . . During the adoptionof the Constitution, the Religious Aid Clause was out of theordinary. At the time, no other state had adopted a provision thatclearly refuted the funding of establishments.212New Jersey was also special because of the content of its compulsion guarantee: “Themeaning of the Religious Aid Clause was intended to reveal that: ‘. . . the freedomfrom being compelled to fund religious institutions through taxation . . . was a grantof personal liberty. . . .’”213 It seems clear that “from the onset, New Jersey alwayshad an interest in denying public funds to support religious advancement.”214The origins of the compulsion guarantee, and the history of its application in thestate from which it arose, confirm that the compulsion guarantee is a religiousliberty protection designed to preclude the use of tax-generated funds for religiouspurposes.II. IOWA’S EDUCATION SAVINGS ACCOUNT PROGRAMOn January 24, 2023, Iowa Governor Kim Reynolds signed legislation underwhich public funds will be given to private schools.215 Technically, the legislation(the Donation Clause). Id. at 938. The lower court reached only the compulsion guaranteeclaim. See id.211 Id. at 943.212 Sean Pryzbylkowski, Trinity Lutheran Has Diminished the Concept of Separation ofChurch and State, 20 RUTGERS J.L. & RELIGION 346, 358–59 (2020).213 Id. at 358.214 Id. at 359.215 See H.F. 68, 90th Gen. Assemb., Reg. Sess. (Iowa 2023), https://www.legis.iowa.gov808 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771will permit the transfer of public funds to both religious and non-religious privateschools.216 But of the 183 accredited non-public schools in Iowa, all but seven havea religious or spiritual affiliation.217 The secular schools enroll just under 2% of thetotal accredited private school enrollment in the state.218 Since there is no compul-sion guarantee conflict with transferring state funds to non-religious private schools,this discussion focuses on religious private school participation in the tuitionfunding program, returning to the non-religious private schools when we address theholding of Carson v. Makin.219/legislation/BillBook?ga=90&ba=HF+68 [https://perma.cc/V7PF-SJAH]. The legislation wasthe subject of a fiscal note from the Fiscal Services Division of the Legislative ServicesAgency. See FISCAL NOTE, supra note 15.216 See Stephen Gruber-Miller & Samantha Hernandez, 62% of Iowans Oppose GovernorKim Reynolds’ Private School Scholarships Law, Iowa Poll Finds, DES MOINES REG. (Mar. 19,2023, 6:00 AM), https://www.desmoinesregister.com/story/news/politics/iowa-poll/2023/03/19/iowa-poll-kim-reynolds-private-school-accounts-opposed-by-majority/69989541007/[https://perma.cc/88NP-GWBZ].217 The Des Moines Register classified six schools as not having a “religious or spiritualaffiliation.” Id. We have made one adjustment in this regard. The six schools identified bythe newspaper were: Bergman Academy in Des Moines (https://www.bergmanacademy.org/[https://perma.cc/Z5BV-QS5S]), Jordahl Academy in Union (https://jordahlacademy.org/[https://perma.cc/74AJ-N7LA]), Montessori School of Marion (https://www.montessorischoolofmarion.org/ [https://perma.cc/V6YU-RMJ6]), Rivermont Collegiate of Bettendorf(https://www.rivermontcollegiate.org/ [https://perma.cc/5K6E-JUKJ]), Summit Schools ofCedar Rapids (https://summitschools.org/ [https://perma.cc/9GHB-C2HT]), and WillowwindSchool of Iowa City (http://www.willowwind.org/ [https://perma.cc/F2JA-69S7]). E-mailfrom Tim Webber, Data Visualization Specialist, Des Moines Reg., to NaRayah Runyon,Drake Univ. L. Sch. (June 26, 2023, 9:00 AM) (on file with author). The newspaper did notinclude the Maharishi School of Fairfield (https://maharishischool.org/ [https://perma.cc/6FD3-AKSJ]), presumably because it has a spiritual, if not religious, affiliation. See infraAppendix B; infra Appendix C. It is not clear how the Iowa Supreme Court would classifysuch a school for purposes of the compulsion guarantee. To err on the side of understatingthe religious character of the accredited non-public schools involved in the education savingsaccount program, we include the Maharishi School in the group of secular schools.Interestingly, only fifty-eight of Iowa’s ninety-nine counties have accredited non-publicschools. FISCAL NOTE, supra note 15, at 2.218 See IOWA DEP’T OF EDUC., Enrollment, supra note 14; infra Appendix C. The sevensecular schools in our calculation enroll a total of just 671 students, with the indicated2022–2023 certified enrollments: Bergman Academy (308), Jordahl Academy (2), MaharishiSchool (126), Montessori School of Marion (9), Rivermont Collegiate (79), Summit Schools(78), and Willowwind School (69). IOWA DEP’T OF EDUC., Enrollment, supra note 14. Thecumulative enrollment of 671 is just 1.99% of the total 2022–2023 certified enrollment forIowa non-public schools of 33,692. Id.219 See discussion infra Conclusion. See generally Carson v. Makin, 142 S. Ct. 1987(2022).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 809Of the 176 accredited religious private schools in Iowa for the 2022–2023 schoolyear, 61% are Catholic schools, and 39% are non-Catholic Christian schools.220There are no accredited non-Christian religious schools in the state.The amount of the public funds which will be given to religious schools is nottrivial; the official estimate is that, after four years, the Students First Act will resultin a transfer of $341,100,000 annually from the state’s general fund to recipientschools.221The new program provides for the creation of “education savings account[s]”to finance the tuition obligations of parents who choose to send their children toreligious primary and secondary schools.222 However, the term “education savingsaccount” is fundamentally misleading. While the term conjures up images of dedi-cated parents sacrificing to save money from modest household budgets to financetheir children’s education, the reality is that the education savings accounts arewholly supported with public funds.223220 See infra Appendix B (107 Catholic and 69 non-Catholic Christian schools). TheCatholic schools had a cumulative enrollment of 22,713, or 67% of the total. See infra Ap-pendix B. The non-Catholic Christian schools enrolled 10,308, or 31%. See infra AppendixB. Although there are wide variations within all three groups, the average Catholic schoolenrolled 212 students, the average non-Catholic Christian school enrolled 149, and theaverage non-religious school enrolled 96. See infra Appendix B; infra Appendix C. TheCatholic schools range in enrollment between 32 and 1,318, the non-Catholic Christianschools between 12 and 663, and the non-religious schools between 2 and 308. See infraAppendix B; infra Appendix C.221 FISCAL NOTE, supra note 15. The actual figure may greatly exceed the estimates. Asthe initial period for enrollment in the education savings account program drew to a close,applications for 25,500 students had been received, exceeding the official 14,000 estimateby over 80%. See Tom Barton, ESA Signups Double Expectations, THE COURIER (July 3,2023), https://wcfcourier.com/esa-signups-double-expectations/article_18c84ff7-8a73-5a1e-b1d0-d172b06d9cf9.html [https://perma.cc/5FL3-LKZ9]. At that rate, the initial year costfor the program will exceed the budgeted $107.4 million by $87.9 million, bringing the totalcost to $195.3 million. See id. As the allocation is a “standing unlimited appropriation,” thefull amount will be funded, even from state reserve funds if necessary. Id. By August 8,2023, with the number not finalized, the state had approved 18,600 applications for partici-pation in the education savings account program. Caleb McCullough, Iowa OKs 18,600Private School Education Savings Accounts, THE GAZETTE (Aug. 9, 2023, 7:51 AM), https://www.thegazette.com/state-government/iowa-oks-18600-private-school-education-savings-accounts/# [https://perma.cc/4EPN-ZMEF].222 IOWA CODE § 257.11B (2023) (“Education Savings Account Program”); see, e.g., PressRelease, Kim Reynolds, Governor, Iowa, Gov. Reynolds Signs Students First Act into Law(Jan. 24, 2023), https://governor.iowa.gov/press-release/2023-01-24/gov-reynolds-signs-students-first-act-law [https://perma.cc/3LHD-3CJD].223 IOWA CODE § 257.11B. These state-funded education savings accounts should not beconfused with Coverdell Education Savings Account, which is a taxpayer-funded savingsaccount for qualified education expenses created under Federal law. See Topic No. 310,Coverdell Education Savings Accounts, IRS, https://www.irs.gov/taxtopics/tc310# [https://perma.cc/DJ6F-4FRP] (last visited Mar. 4, 2024). Contributions to a Coverdell Education810 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771In fact, the education savings accounts are nothing but a ledger entry within thestate treasury.224 The new program establishes an “education savings account fund . . .in the state treasury under the control of the department of education consisting ofmoneys appropriated to the department of education for the purpose of providingeducation savings account payments. . . .”225 Per student allocations of general reve-nues to the education savings account fund are to “be equal to the regular programstate cost per pupil for the same school budget year.”226The term “education savings account” is also misleading to the extent that it sug-gests broad parental discretion in determining how the “savings” are to be expended.In fact, the use of education savings account payments is strictly controlled by the state:Education savings account payments shall be made available toparents and guardians . . . for the payment of qualified educa-tional expenses. . . . Parents and guardians shall first use educa-tional savings account payments for all qualified educationexpenses that are tuition and fees for which the parent or guardianis responsible for payment at the pupil’s nonpublic school. . . .227After the religious school is paid its tuition, any remaining funds in the educationsavings account can only be used “for other qualified educational expenses” asdefined in the statute.228 Unused funds in a student’s education savings account carryover from year to year for so long as the student is eligible for the program, andultimately revert to the state general fund.229Finally, the term “education savings account” is also misleading to the extentthat it suggests parental involvement making payments of qualified expenses. In fact,the state has entered a contract with a third party which will transmit payments fromthe education savings accounts.230 Tuition payments to schools will be made directlySavings Account are not deductible, and distributions are not Federally taxable to the extentof the beneficiary’s qualified educational expenses. Id.224 Indeed, the statute uses the term “education savings account payment” to describe thetransfer of state funds to the education savings account. IOWA CODE § 257.11B.2.a.(1)(“[T]he following pupils who attend a nonpublic school for that school budget year shall beeligible to receive an education savings account payment . . . .”).225 IOWA CODE § 257.11B.5.226 Id. § 257.11B.4.227 Id. § 257.11B.2.b.228 Id. “Qualified educational expenses” are defined, beyond tuition and fees, as including,among others, textbooks, curriculum fees, software, course of study materials, and stan-dardized test fees. Id. § 257.11B.1.b.(1) “Qualified educational expenses” exclude trans-portation costs, food and refreshments, clothing, and disposable materials (paper, notebooks,pencils, pens, and art supplies). Id. § 257.11B.1.b(2).229 Id. § 257.11B.6.c.230 Erin Murphy, N.Y. Firm Will Be Paid $4.3 Million to Operate Iowa’s New PrivateSchool Funding Program, THE GAZETTE (May 26, 2023, 11:18 AM), https://www.thegazette2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 811to the school through electronic funds transfers.231 Payments for non-tuition qualifiededucational expenses will also be made exclusively through the third-party vendor.232The new Iowa legislation provides for the transfer of tax-generated state fundsto religious schools.233 In the next section we shall consider whether the educationsavings account transfers to religious schools are allowed under the compulsionguarantee of the Iowa Constitution.A. Do Tax-Funded Education Savings Account Payments to Religious SchoolsViolate the Iowa Compulsion Guarantee?Against what constitutional standard should the education savings account pro-gram be judged? Article 1, Section 3, Clause 3 of the Iowa Constitution provides inrelevant measure: “nor shall any person be compelled to . . . pay . . . taxes . . . for . . .the maintenance of any minister, or ministry.”234 Thus, one way to frame the ques-tion is: are religious schoolteachers ministers; are religious schools ministries? In.com/state-government/new-york-company-to-be-paid-4-3-million-to-operate-iowas-new-private-school-funding-program/ [https://perma.cc/SXG5-LG6R].231 See Odyssey Training Webinar PowerPoint for Accredited Nonpublic Schools, IOWADEP’T EDUC., https://educateiowa.gov/documents/odyssey-training-webinar-powerpoint-accredited-nonpublic-schools [https://perma.cc/K955-PN5G] (last visited Mar. 4, 2024). “Odys-sey utilizes Stripe as our secure payment processor. Each participating school must submitbanking information, including routing and account numbers. . . . Payments to participatingschools will be sent via ACH to the bank account provided.” Id. at 30 (emphasis omitted).“School inputs tuition and fee amounts for students . . . When input is completed, click‘Generate Invoice[.’] This invoice will be submitted to the state for review and payment.”Id. at 34. “Once the invoice from the state is approved, the funding will be sent to the school.Funds are sent directly to the bank account submitted as part of the school registrationprocess.” Id. at 35.232 Murphy, supra note 230 (“[The vendor] will host a marketplace that will serve as theonly eligible place for Iowa families to spend ESA funding on those other eligible expenses.Any purchases made outside [the vendor’s] marketplace will not be eligible for reimburse-ment, a company official said this week during a webinar.”).233 Like Iowa, the education savings account programs of the other states which havecompulsion guarantees—Arkansas (ARK. CODE ANN. §§ 6-18-2501 to -2511 (West 2023)),Indiana (IND. CODE §§ 20-51.4-4-2, 20-51.4-5-1 (2023)), Tennessee (TENN. CODE ANN.§§ 49-6-2601 to -2612 (West 2023)), and West Virginia (W. VA. CODE ANN. §§ 18-31-1 to -13(West 2023))—provide state general-revenue funds for private school, including religiousschool, tuition.234 IOWA CONST. art. I, § 3. Article 1, Section 3, Clause 3 also provides that “[N]or shall anyperson be compelled to . . . pay . . . taxes . . . for building or repairing places of worship. . . .”Id. art. I, § 3, cl. 3. Since tuition paid to religious schools—and state funds paying suchtuition—go to build and repair the religious school buildings, a finding that such religiousschools are ministries, and some of their teachers are ministers, would seem to also make thefinding that state funds are being used to build and repair places of worship. Rather thanmake the redundant argument, I simply note that such building and repair is another reasonthe education savings account program violates the compulsion guarantee.812 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771Knowlton, the Iowa Supreme Court framed the compulsion guarantee question intwo additional ways. First, does the program at issue “expend money acquired bypublic taxation in training . . . children religiously”?235 Second, does the programconstitute the “use or appropriation of public funds in support of sectarian institu-tions”?; is it “taxation for ecclesiastical support”?236 In other words, is the recipientschool pervasively religious?The following discussion considers whether, by giving public funds to religiousschools, the education savings account program violates the compulsion guarantee,framed in three ways: (1) are the religious schools ministries and are their teachersministers; (2) do the religious schools teach their students religion; and (3) are thereligious schools pervasively religious? We look to three sources to help answerthose questions: first, the Knowlton decision of the Iowa Supreme Court directly onpoint;237 second, the Our Lady of Guadalupe School v. Morrisey-Berru decision ofthe United States Supreme Court on a related question;238 and finally, the publicrepresentations of the Iowa religious schools themselves.1. Are Religious Schools Ministries and Are Their Teachers Ministers?In Knowlton, the Iowa Supreme Court considered a public school which func-tioned as the equivalent of a parochial school:In short, so far as its immediate management and control wereconcerned, the manner of imparting instruction, both secular andreligious, and the influence and leadership exercised over theminds of the pupils, it was a thoroughly and completely religiousparochial school as it could well have been had it continued inname as well as in practice the school of the parish under thespecial charge and supervision of the church, its clergy and re-ligious orders.239235 Knowlton v. Baumhover, 166 N.W. 202, 203 (Iowa 1918). Is the school “establishedand maintained for the express purpose of giving religious training to its pupils”? Id.236 Id. at 206. Is the school “a religious school, maintained and conducted with a specialview to the promotion of the faith of the church under whose favor and guardianship it wasfounded”? Id. at 206.237 Id. at 214 (“[The court] has the authority . . . and . . . duty to enjoin the defendants . . .from directly or indirectly making any appropriation or use of public funds for . . . supportor in aid of such parochial school. . . .”).238 140 S. Ct. 2049, 2063–66 (2020) (determining when schools and their employees aresufficiently involved in religious education to qualify for the ministerial exemption in TitleVII employment discrimination protections).239 Knowlton, 166 N.W. at 204. Interestingly, a 1912 book lists the Maple River schoolcorrectly as a Catholic school: “St. Francis, Maple River, enrollment 70, two rooms, eight2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 813The court observed:[T]he school ceased to have a public character in the sensecontemplated by our laws, and became, has since been, and nowis a religious school, maintained and conducted with a specialview to the promotion of the faith of the church under whosefavor and guardianship it was founded.240That the Knowlton court found it a violation of Article 1, Section 3, Clause 3,of the Iowa Constitution to fund the religious school at issue must mean that it foundthe school to be a “ministry” within the meaning of the compulsion guarantee.241 Ifthat school was a ministry, there is no argument that the religious private schools tobe funded under the education savings account program are not ministries as well.That teachers in religious schools are ministers was confirmed by the analysisof the United States Supreme Court in the 2002 case of Our Lady of GuadalupeSchool.242 The case involved the “ministerial exception”243 as to certain employmentclaims of employees of religious institutions announced in Hosanna-Tabor Evangel-ical Lutheran Church & School v. EEOC.244 Writing for the Court, in an opinionjoined by all but Justices Sotomayor and Ginsburg, Justice Alito expanded thecoverage of the ministerial exception.245 Reversing the Ninth Circuit, Justice Alitoexplained which employees of religious schools are ministers.246grades . . .” 1 PAUL MACLEAN, HISTORY OF CARROLL COUNTY IOWA: A RECORD OF SET-TLEMENT, ORGANIZATION, PROGRESS AND ACHIEVEMENT 22 (1912).240 Knowlton, 166 N.W. at 206.241 Id. at 206–07.242 See 140 S. Ct. at 2066.243 Merriam-Webster dictionary defines “ministerial” in three ways. Ministerial, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/ministerial [https://perma.cc/5F7N-U73A] (last visited Mar. 4, 2024). The first is “of, relating to, or charac-teristic of a minister or the ministry.” Id. The second is:Being or having the characteristics of an act or duty prescribed by lawas part of the duties of an administrative office [or] relating to or beingan act done after ascertaining the existence of a specified state of factsin obedience to a legal order without exercise of personal judgment ordiscretion.Id.The third is “acting or active as an agent.” Id. It goes without saying that Justice Alito’sanalysis of the ministerial exception in Our Lady of Guadalupe School is the first: of, relatingto, or characteristic of a minister or the ministry.244 See 565 U.S. 171, 188 (2012).245 See Our Lady of Guadalupe Sch., 140 S. Ct. at 2066–68 (holding that the Hosanna-Taborfactors should be interpreted broadly so as to not distort the ministerial exemption analysis).246 See id. at 2067–69 (explaining that the Ninth Circuit’s analysis of the ministerialexemption was interpreted too rigidly and required reversal).814 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771The case involved two teachers at Catholic primary schools in the Archdioceseof Los Angeles, Agnes Morrissey-Berru and Kristen Biel, both of whom were foundto be within the ministerial class.247 Morrissey-Berru was a lay fifth and sixth gradeteacher.248 Justice Alito noted that “[l]ike most elementary school teachers, shetaught all subjects, and since [Our Lady of Guadalupe School] is a Catholic schoolthe curriculum included religion.”249 “As a result, she was her students’ religionteacher.”250 Justice Alito noted:Under the prescribed curriculum, she was expected to teachstudents, among other things “to learn and express belief thatJesus is the son of God and the Word made flesh”; to “identifythe ways” the church “carries on the mission of Jesus”; to “lo-cate, read and understand stories from the Bible”; to “know thenames, meanings, signs and symbols of each of the seven sacra-ments”; and to be able to “explain the communion of saints.”She tested her students on that curriculum in a yearly exam.251She “was expected to attend faculty prayer services,” and required to “partici-pate in ‘[s]chool liturgical activities, as requested.’”252 As to her students:Morrissey-Berru prepared her students for participation in theMass and for communion and confession. She also occasionallyselected and prepared students to read at Mass. And she wasexpected to take her students to Mass once a week and on certainfeast days . . . and to take them to confession and to pray theStations of the Cross.253She also prayed with her students:Her class began or ended every day with a Hail Mary. She ledthe students in prayer at other times, such as when a familymember was ill. And she taught them to recite the Apostle’s247 See id. at 2066.248 See id. at 2078.249 Id. at 2056.250 Id. The Court notes that “[l]ike all teachers in the Archdiocese of Los Angeles,Morrissey-Berru was ‘considered a catechist,’ i.e., ‘a teacher of religio[n].’” Id. at 2057.Further, “[c]atechists are ‘responsible for the faith formation of the students in their chargeeach day.’” Id.251 Id.252 Id. at 2056.253 Id. at 2057.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 815Creed and the Nicene Creed, as well as prayers for specific pur-poses, such as in connection with the sacrament of confession.254Her employment agreement “stated that the school’s mission was ‘to developand promote a Catholic School Faith Community,’ and it informed Morrissey-Berruthat ‘[a]ll [her] duties and responsibilities as a Teache[r were to] be performedwithin this overriding commitment.’”255 The “agreement made clear that teacherswere expected to ‘model and promote’ Catholic ‘faith and morals.’”256 She wasevaluated consistent with those expectations:The school reviewed Morrissey-Berru’s performance under re-ligious standards. The “Classroom Observation Report” evalu-ated whether Catholic values were “infused through all subjectareas” and whether there were religious signs and displays in theclassroom. Morrissey-Berru testified that she tried to instruct herstudents “in a manner consistent with the teachings of the Church,”and she said that she was “committed to teaching children Cath-olic values” and providing a “faith-based education.” And theschool principal confirmed that Morrissey-Berru was expectedto do those things.257Morrissey-Berru did not have the formal title of “minister” and did not have exten-sive formal religious training.258 The Court found her to have been within theministerial exception.259Biel was a lay first and fifth grade teacher. Justice Alito noted that she also“taught all subjects, including religion.”260 Biel’s employment agreement was, ac-cording to Justice Alito, “in pertinent part nearly identical to Morrissey-Berru’s.”261Biel’s responsibilities under the faculty handbook resembled those of Morrissey-Berru.262 Justice Alito noted that “[l]ike Morrissey-Berru, Biel instructed her254 Id.255 Id. at 2056.256 Id. The Court notes that she could have been terminated “for ‘conduct that bringsdiscredit upon the School or the Roman Catholic Church.’” Id. at 2057.257 Id.258 Id. at 2058.259 Id. at 2066.260 Id. at 2058.261 Id. (“The agreement set out the same religious mission; required teachers to serve thatmission; imposed commitments regarding religious instruction, worship, and personal model-ing of the faith; and explained that teachers’ performance would be reviewed on those bases.”).262 Id. at 2058–59.Biel’s agreement also required compliance with the St. James faculty handbook, whichresembles the OLG handbook. The St. James handbook defines “religious development” as816 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771students in the tenets of Catholicism,”263 and she worshipped with her students.264Like Morrissey-Berru, Biehl was evaluated consistent with those expectations.265Biel did not have the formal title of “minister” and did not have extensiveformal religious training.266 The Court found that she fit within the ministerialexception.267What is relevant to the ministerial finding under Our Lady of GuadalupeSchool? As Justice Alito explained, the title of minister is neither necessary norsufficient for the finding.268 Indeed, Justice Alito credited the title that they shared:“both Morrissey-Berru and Biel had titles. They were Catholic elementary schoolthe school’s first goal and provides that teachers must “mode[l] the faith life,” “exemplif[y]the teachings of Jesus Christ,” “integrat[e] Catholic thought and principles into secular sub-jects,” and “prepar[e] students to receive the sacraments.” Id. (citations omitted).263 Id. at 2059.She was required to teach religion for 200 minutes each week, andadministered a test on religion every week. She used a religion text-book selected by the school’s principal, a Catholic nun. The religiouscurriculum covered “the norms and doctrines of the Catholic Faithincluding . . . the sacraments of the Catholic Church, social teachingsaccording to the Catholic Church, morality, the history of Catholicsaints, [and] Catholic prayers.”Id. (citations omitted).264 Id. The Court found that:Biel worshipped with her students. At St. James, teachers are responsiblefor “prepar[ing] their students to be active participants at Mass, withparticular emphasis on Mass responses,” and Biel taught her studentsabout “Catholic practices like the Eucharist and confession.” At monthlyMasses, she prayed with her students. Her students participated in theliturgy on some occasions by presenting the gifts (bringing bread andwine to the priest). Teachers at St. James were “required to pray withtheir students every day,”and Biel observed this requirement by open-ing and closing each school day with prayer, including the Lord’s Prayeror a Hail Mary.Id. (alteration in original).265 Id. The Court wrote:As at OLG, teachers at St. James are evaluated on their fulfillment ofthe school’s religious mission. St. James used the same classroomobservation standards as OLG and thus examined whether teachers“infus[ed]” Catholic values in all their teaching and included religiousdisplays in their classrooms. The school’s principal, a Catholic nun,evaluated Biel on these measures.Id. (alteration in original).266 Id. at 2066.267 Id.268 Id. at 2063–64 (“Simply giving an employee the title of ‘minister’ is not enough tojustify the exception. And by the same token, since many religious traditions do not use thetitle ‘minister,’ it cannot be a necessary requirement.”).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 817teachers, which meant that they were their students’ primary teachers of religion.The concept of a teacher of religion is loaded with religious significance. The term‘rabbi’ means teacher, and Jesus was frequently called rabbi.”269Additionally, a given level of formal academic preparation is neither necessarynor sufficient. While a level of formal academic preparation may be relevant,270especially with respect to elementary school teachers, it is not dispositive:[I]nsisting in every case on rigid academic requirements couldhave a distorting effect. This is certainly true with respect toteachers. Teaching children in an elementary school does notdemand the same formal religious education as teaching theol-ogy to divinity students. Elementary school teachers often teachsecular subjects in which they have little if any special training.In addition, religious traditions may differ in the degree of for-mal religious training thought to be needed in order to teach.271Justice Alito nicely summarized the question of ministerial status: “Whatmatters, at bottom, is what an employee does.”272 He spoke of “a recognition thateducating young people in their faith, inculcating its teachings, and training themto live their faith are responsibilities that lie at the very core of the mission of a privatereligious school,”273 and quoted with approval from his own Hosanna-Tabor con-currence “that the [ministerial] exception should include ‘any “employee” who . . .serves as a . . . teacher of its faith.’”274269 Id. at 2067.270 Id. at 2064. Justice Alito wrote:[T]he academic requirements of a position may show that the churchin question regards the position as having an important responsibility inelucidating or teaching the tenets of the faith. Presumably the purposeof such requirements is to make sure that the person holding the positionunderstands the faith and can explain it accurately and effectively.Id.271 Id. Justice Alito’s discussion on this point concludes: “In short, these circumstances,while instructive in Hosanna-Tabor, are not inflexible requirements and may have far lesssignificance in some cases.” Id. Later, Justice Alito helpfully repeats the point: “The signifi-cance of formal training must be evaluated in light of the age of the students taught and thejudgment of a religious institution regarding the need for formal training.” Id. at 2067–68.272 Id. at 2064.273 Id.274 Id. (quoting Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S.171, 199 (2012) (Alito, J., concurring)). Justice Alito nicely documents the importance ofreligious education to different faiths, “show[ing] the close connection that religious insti-tutions draw between their central purpose and educating the young in the faith,” withinCatholicism, Protestantism, Judaism, Islam, The Church of Jesus Christ of Latter-day Saints,Seventh-day Adventism, and others within “the rich diversity of religious education in thiscountry . . . .” Id. at 2064–66.818 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771Justice Alito’s conclusion was straightforward:[I]t is apparent that Morrissey-Berru and Biel qualify for the[ministerial] exemption. . . . [T]hey both performed vital reli-gious duties. Educating and forming students in the Catholicfaith lay at the core of the mission of the schools where theytaught, and their employment agreements and faculty handbooksspecified in no uncertain terms that they were expected to helpthe schools carry out this mission and that their work would beevaluated to ensure that they were fulfilling that responsibility.As elementary school teachers responsible for providing instruc-tion in all subjects, including religion, they were the members ofthe school staff who were entrusted most directly with the re-sponsibility of educating their students in the faith. And not onlywere they obligated to provide instruction about the Catholicfaith, but they were also expected to guide their students, byword and deed, toward the goal of living their lives in accor-dance with the faith. They prayed with their students, attendedMass with the students, and prepared the children for their par-ticipation in other religious activities.275In his concurrence, which Justice Gorsuch joined, Justice Thomas distilled theholding: “I agree with the Court that Morrissey-Berru’s and Biel’s positions fallwithin the ‘ministerial exception,’ because, as Catholic school teachers, they arecharged with ‘carry[ing] out [the religious] mission’ of the parish schools.”276In Our Lady of Guadalupe School, Justice Alito found that “[e]ducating andforming students in the Catholic faith lay at the core of the mission of the schoolswhere they taught. . . .”277 In determining whether the Iowa education savings ac-count program violates the compulsion guarantee of the Iowa Constitution, it shouldbe asked whether Iowa’s religious schools proclaim an equivalent mission. JusticeAlito was undoubtedly correct to caution that the use or omission of the term“minister” is not dispositive. Nevertheless, it is instructive that a significant numberof the religious schools that stand to receive public funds under the education savingsaccount program describe themselves as “ministries” and their teachers as “minis-ters.” For example, Kuemper Catholic School speaks of “the ministry of Catholiceducation . . . .”278 Other schools say they are part of the “teaching ministry of the275 Id. at 2066.276 Id. at 2069 (Thomas, J., concurring) (alterations in original).277 Id. at 2066.278 John Steffes, Who We Are, KUEMPER CATH. SCH., https://www.kuemper.org/who-we-are [https://perma.cc/G36L-9W28] (last visited Mar. 4, 2024).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 819Church,”279 “the teaching ministry of the Parish,”280 “ministries of the diocese,”281“the educational ministry of the Catholic Church,”282 “[t]he ministries of the parishand the school,”283 or simply refer to “[our] ministries.”284 Some speak of their schoolas part “the ministry of Christian education,”285 or as being a “ministry” of a specificchurch.286 Reference is made to “[o]ur ministry-minded faculty.”287 Two schoolspresent themselves as having “a Christ-centered educational program that ministersto the needs of the whole child . . . .”288 The regional organization of eight Lutheran279 School, BURLINGTON NOTRE DAME SCH., https://www.burlingtonnotredame.com/page/school [https://perma.cc/Q94D-J63Z] (last visited Mar. 4, 2024) (“Burlington Notre Dame,Inc. is dedicated to fulfilling the teaching ministry of the Church by promoting Catholicvalues and assisting students in reaching their full personal potential through Christ-centeredacademic and co-curricular programs.”).280 About, PRINCE OF PEACE CATH. SCH., https://www.prince.pvt.k12.ia.us/about [https://perma.cc/EU5X-B3YL] (last visited Mar. 4, 2024) (“We, the Jesus Christ Prince of PeaceCatholic Education System, serve to facilitate the teaching ministry of the Parish. Our pur-pose is to provide educational programs which promote Gospel values and Catholic Traditionin the context of a changing world.”).281 Wills/Bequests/Planned Giving, SPALDING CATH. SCH., https://www.spaldingcatholic.org/cms/one.aspx?portalId=247020&pageId=305054 [https://perma.cc/XL4S-98QN] (lastvisited Mar. 4, 2024) (“Catholic Schools, Parishes and other ministries of the diocese. . . .”).282 SETON CATH. SCH., https://setonschool.org/ [https://perma.cc/CP2J-W62B] (last visitedMar. 4, 2024) (“The Goal of Catholic education at Seton Catholic School is the fulfillmentof the educational ministry of the Catholic Church and has as its primary objective the on-going formation and the development of each individual’s God-given gifts.”).283 Ms. Sara Stevenson Rooney, CHRIST THE KING CATH. SCH., https://cksdesmoines.com/people/ms-sara-stevenson-rooney [https://perma.cc/J83Z-ZMTD] (last visited Mar. 4, 2024)(“The ministries of the parish and the school really align with Catholic social teaching . . . .”).284 Ministries, ST. PAUL’S LUTHERAN CHURCH & SCH., https://www.stpaulswaverly.org/ministries [https://perma.cc/E8N5-ST9D] (last visited Mar. 4, 2024) (“Ministries: From birthto old age, we strive to grow in our faith and knowledge. St. Paul’s gives children, individuals,and families the resources they need to grow in faith at home, school, and church. Our minis-tries build relationships that foster growth.”) (discussing various programs at St. Paul’sLutheran Church & School).285 BRUIT, HILLCREST ACAD., https://www.hillcrestravens.org/alumni/bruit/ [https://perma.cc/3DFF-RGC4] (last visited Mar. 4, 2024) (discussing “the ministry of Christian educationand the mission of Hillcrest Academy”).286 E.g., CEDAR VALLEY CHRISTIAN SCH., FAM. HANDBOOK 4 (2022), https://www.cedarvalleychristianschool.org/editoruploads/files/FamilyHandbook-22-23__Updated_6-8-22.pdf[https://perma.cc/RV6L-UZXR] (“Cedar Valley Christian School is a ministry of Cedar ValleyBible Church and as such follows its doctrinal statement.”); School Policies, ST. PAUL’SLUTHERAN CHURCH & SCH., https://stpaulslutheranchurch.snappages.site/school-policies[https://perma.cc/MQ7T-L2SD] (last visited Mar. 4, 2024) (“St. Paul’s Lutheran School isa ministry of St. Paul’s Lutheran Church . . . .”).287 Admissions, MARSHALLTOWN CHRISTIAN SCH., https://mcsiowa.org/admissions/[https://perma.cc/6997-ZPBY] (last visited Mar. 4, 2024).288 Home, TRINITY LUTHERAN SCH., https://www.tlsboone.us [https://perma.cc/H83T-2MZX] (last visited Mar. 4, 2024) (“The mission of Trinity Lutheran School, in partnershipwith parents and our LCMS congregation, is to provide a Christ-centered educational820 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771schools lists education as one of its “ministry areas.”289 Other schools characterizethemselves as being “an educational support ministry for families in the faith com-munity,”290 “this important ministry,”291 “this ministry,”292 “a school ministry,”293 orsimply “the ministry.”294Of course, the ministerial test under which the Iowa education savings accountprogram will be judged does not require that every teacher at a religious schoolsatisfy the test. The program does not differentiate among school employees; trans-fers of state funds to religious schools provide undifferentiated support of the entirereligious enterprise.295 As Justice Alito observed in Our Lady of Guadalupe School,program that ministers to the needs of the whole child in nurturing them to live in service toGod and man.”); Our Story, ZION-ST. JOHN LUTHERAN SCH., https://zsjpaullina.org/our-story.php [https://perma.cc/X4X8-88JH] (last visited Mar. 4, 2024) (“The mission of Zion-St. John Lutheran School, in partnership with parents and the congregations, is to provide aChrist-centered educational program which ministers to the needs of the ‘whole child’ innurturing the student to live in service to God and man.”).289 Elementary Education, IOWA DIST. W. THE LUTHERAN CHURCH–MO. SYNOD, http://www.idwlcms.org/elementary-education.php [https://perma.cc/KCP9-APDF] (last visitedMar. 4, 2024) (“Ministry Areas” includes “Education,” which includes “Elementary Educa-tion,” containing links to eight schools: Trinity Lutheran School (Boone), Clarinda LutheranSchool (Clarinda), Unity Ridge Lutheran School (Denison), Mt. Olive Lutheran School (DesMoines), St. Paul Lutheran School (Fort Dodge), Zion-St. John Lutheran School (Paullina),St. Paul’s Lutheran School (Sioux City), and Iowa Great Lakes Lutheran School (Spencer)).290 Our Mission, GRAND VIEW CHRISTIAN SCH., https://www.grandviewchristianschool.org/about/mission.cfm [https://perma.cc/VRB2-FEH4] (last visited Mar. 4, 2024) (“GrandView Christian School functions as an educational support ministry for families in the faithcommunity.”).291 Candice Vos, True Knowledge, SULLY CHRISTIAN SCH. (Apr. 30, 2021), https://sullychristian.org/news/true-knowledge/ [https://perma.cc/NY65-LFRS] (“As we work daily toraise up the next generation of young Christians, please continue to uphold us in prayer andsupport us in this important ministry!”).292 Parent/Student Handbook, SIOUX CTR. CHRISTIAN SCH. 29 (2016), https://www.siouxcenterchristian.com/editoruploads/files/Parent-Student%20Handbook(1).pdf [https://perma.cc/E9AG-4UDM] (“We need to continue to have this ministry meet our present needs, butalso to prepare for the future.”).293 School, TRINITY LUTHERAN CHURCH SCH., https://www.trinitydavenport.org/school[https://perma.cc/L2HF-JXMJ] (last visited Mar. 4, 2024).294 Employment, SIOUX CTR. CHRISTIAN SCH., https://www.siouxcenterchristian.com/connectwithus/employment.cfm [https://perma.cc/Q7CC-4B2K] (last visited Mar. 4, 2024)(“If you feel called to be a part of the ministry here at SCCS, we look forward to discussingwith you what God is doing through Sioux Center Christian School.”).295 Nor, in all candor, could it. A program transferring state funds to religious schools forthe purpose of supporting, for example, physical education teachers would also run afoul ofthe compulsion guarantee of the Iowa Constitution in at least two ways. First, it is not at allclear that physical education teachers do not perform a ministerial function. After all, theteachers in Morrissey-Berru were required to ensure that “Catholic values were ‘infusedthrough all subject areas,’” and to “‘integrat[e] Catholic thought and principles into secularsubjects . . . .’” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2057, 20592024] TAX FUNDS FOR RELIGIOUS SCHOOLS 821“The religious education and formation of students is the very reason for theexistence of most private religious schools . . . .”296 If Iowa’s religious schools are,therefore, ministries within the meaning of the compulsion guarantee of the IowaConstitution, the transfer of public funds to them is unconstitutional.2. Do the Religious Schools Teach Their Students Religion?Do religious schools teach their students religion? As Justice Alito noted in OurLady of Guadalupe School, the answer is obvious: “[S]ince [Our Lady of GuadalupeSchool] is a Catholic school, the curriculum included religion.”297A few examples illustrate the importance of religious education in the activitiesof the Iowa religious schools298:• The Morning Star Academy in Bettendorf announces: “A comprehen-sive and foundational core of Bible, English, Math, Science, and Historyis essential and non-negotiable.”299• Christ the King School in Des Moines says of its “Faith Based Curricu-lum”: “The religious formation of children is the primary reason for theexistence of Catholic schools. Thus, Christ the King School’s religiouseducation program is of special curricular importance. Scripture, doc-trine, prayer, and liturgy are related to children at their developmentallevel, beginning with their own experiences. Prayer is an important partof the day. It begins and ends each day, lunchtime and is experienceddaily in religion class.”300(2020) (alteration in original). Second is the substitution effect: providing state funding forphysical education teachers frees up non-state religious school funds for the religious programof the school. This is one of the reasons that the existing state programs that use state fundsto provide religious schools with services are problematical under the compulsion guarantee.296 Id. at 2055.297 Id. at 2056. The Court notes that “[l]ike all teachers in the Archdiocese of Los Angeles,Morrissey-Berru was ‘considered a catechist,’ i.e., ‘a teacher of religio[n].’” Id. at 2057.Further, “[c]atechists are ‘responsible for the faith formation of the students in their chargeeach day.’” Id.298 For a listing of the religious education activities of all 176 accredited non-publicschools which have a religious identity, see infra Appendix B.299 Academics, MORNING STAR ACAD., https://www.morningstaracademy.org/academics.html [https://perma.cc/JB3A-CCN7] (last visited Mar. 4, 2024).300 Why Choose CKS?, CHRIST THE KING SCH., https://cksdesmoines.com/why-choose-cks[https://perma.cc/3H2V-75VC] (last visited Mar. 4, 2024).822 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771• The Iowa Great Lakes Lutheran School in Spencer says of its program:“The main purpose for establishing and maintaining our school is toteach God’s Word to your child in order that the student may grow inknowledge and faith in his Savior, Jesus Christ. This is done throughdaily instruction and devotions here at school and by encouraging allfamilies of children enrolled in IGLLS to attend church services andSunday school regularly. Each Monday and on days following specialchurch services, every pupil is asked whether or not the student at-tended services.”301• The Diocese of Sioux City has as one of its standards for Mission andCatholic Identity: “An excellent Catholic school adhering to missionprovides a rigorous academic program for religious studies and cateche-sis in the Catholic faith, set within a total academic curriculum thatintegrates faith, culture, and life.”302• The Clarinda Lutheran School says that it “provides students withmagnificent opportunities to learn about Christ and the works he doesin our world. With Weekly Chapels, Bible/Religion classes, a YearlyTheme and verse, your child will find Christ in everything we do.”303In fact, all the religious schools which stand to receive public funding under theIowa education savings account program teach their students religion.304301 Iowa Great Lakes Lutheran School Parent/Guardian Handbook, IOWA GREAT LAKESLUTHERAN SCH. 4 (2023), https://www.iglls.org/_managedFiles/files/files/1692710544.pdf[https://perma.cc/EZ4E-HG76].302 Building for the Future: Strategic Plan 2016–2021, DIOCESE OF SIOUX CITY CATH.SCHS. 2, https://cdnsm5-ss13.sharpschool.com/UserFiles/Servers/Server_242142/File/About%20Us/Long%20Range%20Strategic%20Plan/Strategic_Plan_for_web.pdf [https://perma.cc/35FP-GTDE] (last visited Mar. 4, 2024).303 Interested?, CLARINDA LUTHERAN SCH., https://clarindalutheranschool.com/interested-in-cls/ [https://perma.cc/4ZYY-27GA] (last visited Mar. 4, 2024).304 See infra Appendix B, item f., for each of the 176 accredited private schools which hasa religious identity. Each includes information about the school’s religious educationprogram. For the two OneSchool Global schools the record is nuanced; the schools say: “TheChurch Community believes that the classroom is not the place for religion, and as such thereare no church services or religion based subjects taught across OneSchool Global campuses.”Education, PLYMOUTH BRETHREN CHRISTIAN CHURCH, https://www.plymouthbrethrenchristianchurch.org/education/ [https://perma.cc/6YM8-NDSU] (last visited Mar. 4, 2024). At thesame time, the schools describe their program as: “Christian education focused on buildingthe next generation of world changing disciples for Christ through innovative hands-oneducation.” One School, FACEBOOK, https://www.facebook.com/OneSchoolSparks [https://perma.cc/FLN5-GTJ6] (last visited Mar. 4, 2024). And they announce their ethos as being2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 8233. Are the Religious Schools Pervasively Religious?Are the religious schools pervasively religious? Two types of public statementsof the religious schools are instructive. First, what is the self-proclaimed mission ofthe school? A few mission statement examples illustrate the pervasive presence ofreligion in mission statements of the Iowa religious schools305:• Holy Family Catholic Schools, in Dubuque, states: “Our Mission[] [isto] form[] disciples of Jesus Christ . . . .”306• Hull Christian School proclaims: “The mission of Hull Christian Schoolis to educate covenant children in the light of God’s Word, preparingthem for a life of Christian discipleship, responsible stewardship, andhumble service in His Kingdom.”307• Trinity Lutheran School in Cedar Rapids states as its mission: “KnowChrist + Grow in Christ + Make Christ Known.”308• St. Patrick’s School in Sheldon has as its mission: “School, Church, andHome Working in Unity to Spread God’s Eternal Love.”309• Community Lutheran School in Wapsie Valley has as its mission:“Providing a Christian environment for a quality education whileinspiring students to go forth living Christ-centered lives as witnessesof the one true faith in God’s Kingdom.”310that “[t]he truth and authority of the Holy Bible and strong family values underpin the com-mitment of the School to provide quality in every facet of education—curriculum, teachers,facilities, management, and discipline—in a safe and caring environment.” About Us,ONESCHOOL GLOB., https://www.oneschoolglobal.com/about-us/#about-section-2 [https://perma.cc/8RQY-AR9J] (last visited Mar. 4, 2024).305 For a listing of the mission statements of all 176 religious accredited non-public Iowaschools, see infra Appendix B.306 About Us, HOLY FAM. CATH. SCHS., https://www.holyfamilydbq.org/about-us/ [https://perma.cc/NL4E-X9AM] (last visited Mar. 4, 2024).307 Mission Statement, HULL CHRISTIAN SCH., https://www.hullchristian.com/about-hcs/mission-statement.cfm [https://perma.cc/3XD3-U4S5] (last visited Mar. 4, 2024).308 Trinity Lutheran School, TRINITY LUTHERAN CHURCH & SCH., https://www.trinitycr.org/lutheran-school/ [https://perma.cc/5Y5G-CY3E] (last visited Mar. 4, 2024).309 Mission, ST. PATRICK’S CATH. SCH., https://www.stpatssheldon.org/mission [https://perma.cc/V2CF-TWF6] (last visited Mar. 4, 2024).310 Home, CMTY. LUTHERAN SCH., https://communitylutheranschool.com/index.html[https://perma.cc/LB8V-RE35] (last visited Mar. 4, 2024).824 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771• Ames Christian School states its mission as: “Ames Christian Schoolprovides a personalized Christ-centered education, developing studentsspiritually and academically, to impact the world through Christ.”311Second, are religious values infused across the curriculum? A few websiteexamples illustrate the pervasive presence of religion across the curriculums of theIowa religious schools312:• Newton Christian Day School describes its program as: “An educationsubmerged in the Word of God . . . .”313• Sioux City Catholic Schools declares that: “The teaching of the Catho-lic faith, with a focus on Jesus Christ, will permeate all academiccontent areas.”314• Central Lutheran School in Benton says: “We believe that the Christianteacher is committed to providing Christian instruction based on thedoctrines of the Lutheran Church–Missouri Synod. Teachers, who havebeen Synodically trained or have received instruction the Lutherandoctrine, integrate Christian instruction in all subjects.”315• Xavier Catholic Schools, in Cedar Rapids, says: “With Catholicityinterwoven into the fabric of everything we do in our schools, there arehigher values, higher standards, a higher calling for service, and ahigher purpose through our Catholic teaching and faith in place.”316• Unity Christian High School in Orange City states: “The biblical truththat resounds in our Christian school’s curriculum is that all things inthe world belong to God. The task of a Christian school teacher is tohelp reveal God’s grand story in this world. Thus, a teacher’s task is311 About Us, AMES CHRISTIAN SCH., https://www.ameschristianschool.org/about-us[https://perma.cc/7RLV-7434] (last visited Mar. 4, 2024).312 For a listing of the statements about religion across the curriculum of all 176 religiousaccredited non-public Iowa schools, see infra Appendix B.313 Our Mission, NEWTON CHRISTIAN SCH., https://www.newtonchristianschool.com/[https://perma.cc/8358-TEQR] (last visited Mar. 4, 2024).314 Strategic Plan 2023–2028, DIOCESE OF SIOUX CITY, https://scdiocese.org/strategicplan23 [https://perma.cc/6W7Z-KNYM] (last visited Mar. 4, 2024).315 About Us, CENTRAL LUTHERAN SCH., https://centrallutheranschool.org/about-cls/[https://perma.cc/M2NX-SLZ3] (last visited Mar. 4, 2024).316 About, XAVIER CATH. SCHS., https://crxaviercatholicschools.org/our-mission [https://perma.cc/V3HU-MTZ8] (last visited Mar. 4, 2024).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 825one of Christian-storytelling, of seeking out and helping students to‘See The Story’ in all areas of study.”317• Holy Family Catholic Schools in Dubuque proclaims: “Our Catholicfaith is at the heart of all we do at Holy Family Catholic Schools.”318• The Diocese of Davenport states: “Our schools will infuse a rigorousacademic program with the timeless message of Jesus Christ. . . .”319• Faith Academy Iowa City: “We believe the Bible to be the inerrantword of God; a guide for us in all areas of life. Because of this, all ourclassrooms will be saturated with Biblical truth.”320• Hull Christian School proclaims: “Education at Hull Christian Schoolis based on the infallible truth found in the Bible. Out of this truth ourschool reflects the Christian virtues of love, compassion, respect andobedience. Hull Christian believes our school to be marked as distinc-tively Christian in a world tainted with sin.”321In fact, all the religious schools which stand to receive public funding under theIowa education savings account program are pervasively religious.322Of course, there are other indications of a pervasive religious element in Iowa’sreligious accredited private schools. For example, Holy Family Catholic Schools,in Dubuque, gives assurance that: “Every classroom displays visible signs of ourCatholic identity.”323 Whether “there were religious signs and displays in the class-rooms” was one of the factors noted in the evaluation of the teachers in Our Lady317 Teaching for Transformation, UNITY CHRISTIAN HIGH SCH., https://www.unitychristian.net/tft [https://perma.cc/5JTC-3THG] (last visited Mar. 4, 2024).318 Our Catholic Identity, HOLY FAM. CATH. SCHS., https://www.holyfamilydbq.org/about-us/catholic-identity/ [https://perma.cc/NL4E-X9AM] (last visited Mar. 4, 2024).319 Schools, DIOCESE OF DAVENPORT, https://davenportdiocese.org/schools [https://perma.cc/L5NC-K2MN] (last visited Mar. 4, 2024).320 Academics, FAITH ACAD., https://www.faithacademyiowa.org/academics/ [https://perma.cc/L5CR-N96F] (last visited Mar. 4, 2024).321 Strategic Direction of Hull Christian School, HULL CHRISTIAN SCH., https://www.hullchristian.com/about-hcs/strategic-direction-of-hull-christian-school.cfm [https://perma.cc/W8X7-TVJ4] (last visited Mar. 4, 2024).322 See infra Appendix B, items e. (mission statement) and g. (religious values infused)for each of the 176 accredited private schools which have a religious identity. All includeinformation about the schools’ pervasive religious nature.323 Our Catholic Identity, supra note 318.826 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771of Guadalupe School.324 Religious imagery is ubiquitous among the religious schoolsthat will receive public funds under the education savings account program.3254. Applying the Underlying RationaleThe compulsion guarantee of the Iowa Constitution is a religious liberty protec-tion which ensures that citizens are not required to fund religious activities in whichthey do not join.326 It is appropriate to consider how taxpayers might not join in thereligious activities funded by the public through the education savings accountprogram. There are two ways in which this occurs. The first is the classic reasonunderlying the compulsion guarantee: citizens whose beliefs on matters of religiondiffer from those of the sect conducting the religious activity. The second is theobverse: citizens whose participation in the religious activity is barred by the324 140 S. Ct 2049, 2057, 2059 (2020).325 See generally Lutheran Interparish Sch., Photos, FACEBOOK, https://www.facebook.com/lutheraninterparish/photos [https://perma.cc/3EL5-DL73] (last visited Mar. 4, 2024); InwoodChristian Sch., Photos, FACEBOOK, https://www.facebook.com/InwoodChristian/photos[https://perma.cc/4S42-DLHQ] (last visited Mar. 4, 2024); Aquin Cath. Sch., Photos, FACE-BOOK, https://www.facebook.com/aquincatholiccascade/photos [https://perma.cc/5JMD-Y83C] (last visited Mar. 4, 2024); Beckman Cath. High Sch., Photos, FACEBOOK, https://www.facebook.com/BeckmanCatholic/photos [https://perma.cc/VE8W-J3WM] (last visitedMar. 4, 2024); Deacon Garza Visits 5th Grade, SACRED HEART SCH., https://sacredheartschoolwdm.org/photoalbums/deacon-garza-visits-5th-grade [https://perma.cc/YC2V-U8HG](last visited Mar. 4, 2024), Dowling Cath. High Sch., Photos, FACEBOOK, https://www.facebook.com/dowlingcatholic/photos [https://perma.cc/D4TA-JB4E] (last visited Mar. 4, 2024);St. Mary Sch., Photos, FACEBOOK, https://www.facebook.com/photo.php?fbid=735683818558548&set=pb.100063508095644.-2207520000.&type=3 [https://perma.cc/2YH8-63YV](last visited Mar. 4, 2024); Our School, ST. THOMAS AQUINAS, WEBSTER CITY ST. MARY,WILLIAMS, https://stthomaswc.org/photoalbums/our-school [https://perma.cc/DET7-TYTE](last visited Mar. 4, 2024); St. Paul Lutheran Sch. Fort Dodge, Photos, FACEBOOK, https://www.facebook.com/stpaulschoolfd/photos [https://perma.cc/VXH9-FS5T] (last visited Mar. 4,2024); St. Francis of Assisi Sch., Photos, FACEBOOK, https://www.facebook.com/stfrancisassisischool/photos [https://perma.cc/P82V-J5Z3] (last visited Mar. 4, 2024); Bosco Cath.Sch. Sys., Photos, FACEBOOK, https://www.facebook.com/photo/?fbid=2924740340999015&set=pb.100061930315403.-2207520000 [https://perma.cc/EF8N-J6B5] (last visited Mar. 4,2024); Columbus Cath. High Sch., Photos, FACEBOOK, https://www.facebook.com/photo.php?fbid=725573272527222&set=pb.100052236684569.-2207520000.&type=3 [https://perma.cc/BFZ2-BPZJ] (last visited Mar. 4, 2024); Blessed Maria Assunta Pallotta MiddleSch., Photos, FACEBOOK, https://www.facebook.com/photo/?fbid=4179229868763689&set=pb.100063631810258.-2207520000 [https://perma.cc/CTJ6-DTQR] (last visited Mar. 4,2024); Immaculate Conception Elementary Sch., Photos, FACEBOOK, https://www.facebook.com/photo/?fbid=714899783812321&set=pb.100058769181674.-2207520000 [https://perma.cc/XS44-P6B3] (last visited Mar. 4, 2024) (examples of religious imagery).326 IOWA CONST. art. I, § 3.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 827discrimination of the sect conducting the activity. Both are present in the case ofreligious schools given public funds under the education savings account program.As to the first way, there are many citizens whose beliefs on matters of religiondiffer from those of the sects with which the religious schools are affiliated. Thereligious affiliations of Iowa’s accredited private schools are simple. Only seven ofthe 183 accredited private schools are not religious.327 All of the religious accreditedprivate schools are either Catholic or non-Catholic Christian.328 There are no ac-credited private schools in Iowa with Jewish, Muslim, Hindu, Buddhist, Bahá'í,Rastafari, Druze, Sikh, Taoist, Native American, Wiccan, atheist, agnostic, or anyother non-Christian affiliations. None.The religious affiliations of Iowa’s citizens are significantly different than thereligious affiliations of the schools which stand to benefit from public funding underthe education savings account program. A 2014 study of the religious compositionof Iowa’s adult population by the Pew Research Center reported only slightly morethan three-quarters of the population identifying as Christian, with more than threetimes as many Protestants as Catholics.329 Atheists, agnostics, and respondentsreporting “religious ‘nones’” were over one-fifth of the population.330 Non-ChristianFaiths were 1% of the population.331With almost a quarter of the population not affiliated with the religious groupswhich have schools—over 40% in the more recent study332—the number of citizensprotected by the compulsion guarantee is very substantial.The second way in which citizens might not join in the religious activitiesfunded by the education savings account program is when citizens who do not sharethe religious faith of the favored sect are discriminated against by the sect conduct-ing the religious activity. For example, one Christian school reserves the right todiscriminate against prospective students based on religion, gender identity, andsexual orientation: “As a Christian school, Hull Protestant Reformed Christian327 See infra Appendix C.328 See supra text accompanying note 220.329 Religious Landscape Study, Adults in Iowa, PEW RSCH. CTR. (2014), https://www.pewresearch.org/religion/religious-landscape-study/state/iowa/ [https://perma.cc/FLQ6-AKKJ(last visited Mar. 4, 2024). The study indicated Christians at 77%, with Protestants at 60%and Catholics at 18%. See id. Mormons, Orthodox Christians, Jehovah’s Witnesses, and“Other Christians” each were less than 1% each. See id. A 2020 study put Christians at58.7%, with Protestants at 44% and Catholics at 14.7%. Ryan P. Burge & Paul A. Djupe, TheReligious Composition of the Iowa Electorate, RELIGION IN PUB. (Feb. 3, 2020), https://religioninpublic.blog/2020/02/03/the-religious-composition-of-the-iowa-electorate/ [https://perma.cc/L6YF-YCUS].330 Id. The study indicated atheists were 4%, agnostics were 2%, and “nothing in par-ticular” were 16%. Id. A 2020 study indicated that 30.6% put “None.” Id.331 Id. The study indicated Muslims were 1%, with Jewish, Buddhist, Hindu, “OtherWorld Religions,” and “Other Faiths” each were less than 1%. See id. A 2020 study put “AllOthers” at 10.7%. Id.332  Id.828 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771School reserves the right to discriminate or impose qualifications based on religion,gender identity, or sexual orientation. . . .”333 Another school discloses that itdiscriminates based on sexual orientation, gender identity, religion, and creed.334Without more, such discrimination is illegal under the baseline non-discrimina-tion policy set forth in the Iowa Civil Rights Act provision on schools: “It is anunfair or discriminatory practice for any educational institution to discriminate onthe basis of race, creed, color, sex, sexual orientation, gender identity, nationalorigin, religion, or disability in any program or activity.”335 But the statute carves outa limited exception for discrimination for religious reasons: “Nothing in this sectionshall be construed as prohibiting any bona fide religious institution from imposingqualifications based on religion, sexual orientation, or gender identity when suchqualifications are related to a bona fide religious purpose. . . .”336Stipulating that the schools at issue are “bona fide religious institutions,” whichstrengthens the argument that they are included within the coverage of the compul-sion guarantee, it would still be necessary that it be “related to a bona fide religiouspurpose” for the discrimination to be within the limited exception.337 It would be aninteresting exercise for the schools which invoke the limited exception in the IowaCivil Rights Act to explain what “bona fide religious purpose” is served by excludingstudents from their schools based on their sexual orientation or gender identity.338Other schools are less forthcoming; they merely omit certain types of discrimi-nation from their non-discrimination statements. For example: “Central Iowa333 Hull Protestant Reformed Christian School Parent-Student Handbook, HULL PROTES-TANT REFORMED CHRISTIAN SCH. 38 (2023), https://www.hprcs.com/Parent_Student_Handbook_-_5_4_23_1.pdf [https://perma.cc/HVE4-HEYE].334 Admissions, ANKENY CHRISTIAN ACAD., http://acaeagles.net/admissions/ [https://perma.cc/U2KM-46TX] (last visited Mar. 4, 2024). The school’s website says:ACA does not discriminate on the basis of race, color, gender, na-tionality and ethnicity, socioeconomic status, age, or disability in theadministration of its admission, education, financial assistance, extracur-ricular policies, or employment policies and other school sponsoredprograms. Note: As a bona fide religious organization, we imposequalifications based on a bona fide religious purpose. (Refer to school’sdoctrinal statement.) Sexual orientation, gender identity, religion, andcreed have been excluded from this policy in accordance with IowaCode 216.9(2) (2003)[.]Id. It should be noted that the policy appears inconsistent with the statutory provision.Section 216.9.1 includes “creed” in the list of unfair or discriminatory practices, but§ 216.9.2 does not include “creed” in the bona fide religious purpose exception. IOWA CODE§ 216.9.1–2 (2003).335 Id. § 216.9.1 (2022).336 Id.337 Id.338 See Matthew 19:14 (King James) (“But Jesus said, Suffer little children, and forbidthem not, to come unto me: for of such is the kingdom of heaven.”).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 829Christian School does not discriminate on the basis of race, color, national ethnicorig [sic] in its educational programs or activities.”339 The problem with many ofthese abbreviated listings is that they omit some types of discrimination which areon the statutory baseline list that are not included in the bona fide religious purposeexception. For example, the Central Iowa Christian School omits creed, sex, anddisability, which are in the baseline listing of prohibited types of discrimination340and are not within the bona fide religious purpose exception.341Other schools have admissions policies which discriminate based on the charac-teristics or behavior of the prospective student’s parents:The following criteria is used to determine if our school is theright fit for your child at this time[:] At least one parent orguardian has a personal testimony of a relationship with JesusChrist. There is membership in, or regular attendance at, achurch in which the Bible is sincerely believed to be the inspiredword of God which is the basis for all life and learning. . . .Parents desiring to send students to Community Christian Schoolare in a Biblical marriage which is defined as a covenant rela-tionship between one man and one woman. Single parents orguardians are in a Biblical relationship.342339 Admissions, CENT. IOWA CHRISTIAN SCH., https://www.centraliowachristianschool.org/admissions [https://perma.cc/D4EM-7HH5] (last visited Mar. 4, 2024); see also CedarValley Christian School Application for Enrollment, CEDAR VALLEY CHRISTIAN SCH.,https://www.cedarvalleychristianschool.org/editoruploads/files/Student-Application.pdf[https://perma.cc/6AF5-NYPU] (last visited Mar. 4, 2024) (“ADMISSIONS POLICY: CedarValley Christian School admits students of any race, sex, color, national and ethnic originto all the rights and privileges, progress and activities generally accorded or made availableto students at the school. It does not discriminate on the basis of race, sex, color, national andethnic origin in administration of its educational policies and athletic or other school ad-ministered programs.”); About Us, CENT. LUTHERAN SCH., https://centrallutheranschool.org/about-cls/ [https://perma.cc/9GN9-3XFB] (last visited Mar. 4, 2024) (“Central LutheranSchool does not discriminate on the basis of race, color, national or ethnic origin, sex, ordisability in administration of its educational policies, scholarship and loan programs, athleticand other school administered programs.”).340 See IOWA CODE § 216.9.1.341 See id. § 216.9.2.342 Admissions, CMTY. CHRISTIAN SCH., https://www.ccsfd.org/admissioninfo [https://perma.cc/7FVZ-KH86] (last visited Mar. 4, 2024); see also Enrollment Requirements, AMESCHRISTIAN SCH., https://www.ameschristianschool.org/enrollment [https://perma.cc/S8P5-UEY9] (last visited Mar. 4, 2024) (“All students must come from a home where at least oneparent or guardian has a personal relationship with Jesus Christ and is in complete accordwith the policies, methods, and obligations of the school.”).830 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771Others add requirements of membership, or perhaps only regular attendance, at asuitable church, “a Bible-believing church,”343 or “a church that affirms historicChristian orthodoxy (doctrine, faith, teaching, practice), consistent with [the school’sbeliefs].”344Presumably, these religious schools would claim that the forms of discrimina-tion in which they engage come within the permissible “religious” category in thelimited exception. Of course, they would have to make the case that excluding astudent, for example because her parents are married but not in a Biblical covenantmarriage, is for a “bona fide religious purpose.”345In fairness, it should be acknowledged that not all the accredited religiousschools have a policy of discriminating against some classes of citizens. As onemight expect, the non-discrimination policy of the only Quaker school in the group,Scattergood Friends School in West Branch, is quite robust:Scattergood Friends School is committed to supporting a diversecommunity of adults and youths. Scattergood Friends Schooldoes not discriminate on the basis of ethnic or national origin,religion, age, economics, gender identity, genetic information,343 See Admissions, Requirements, TIMOTHY CHRISTIAN SCH., https://timothychristianschool.net/admissions/ [https://perma.cc/74SZ-68RK] (last visited Mar. 4, 2024) (“We askthat families attend a Bible-believing church regularly and are committed to teaching theirchildren about Christ at home.”); see also Admissions Process, TRI-STATE CHRISTIAN SCH.,https://www.tscs.org/admissions-process.html [https://perma.cc/K8JE-AN62] (last visitedMar. 4, 2024) (“[O]ne custodial parent (preferably both) must be a born-again believer whois in agreement with the TSCS Statement of Faith and is actively living out their faith in aBible-believing church. A parent is not required to be a member of a church but at least beactive in attendance. A Pastoral Reference form is required for enrollment.”).344 Admissions Criteria, DES MOINES CHRISTIAN SCH., https://www.dmcs.org/admissions/admission-criteria [https://perma.cc/PZ37-U7C6] (last visited Mar. 4, 2024). The school’swebsite says:At least one parent or guardian must be a professing believer in JesusChrist and provide a written Christian testimony. It is preferred thatboth parents provide written faith testimonies. At least one parent mustbe in full agreement with and willingly sign the DMC Statement ofFaith. At least one parent must agree to respectfully support the School’sposition and teaching on all social and doctrinal issues as defined in theDMC Biblical Convictions for Christian Education. Student(s) and atleast one parent commit to growing in their relationship with Christ andregularly attend a church that affirms historic Christian orthodoxy(doctrine, faith, teaching, practice), consistent with the DMC Statementof Faith, through that church’s public creed, confession, core beliefs,or statement of faith.Id.345 IOWA CODE § 216.9.2.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 831sexual orientation, physical ability and veteran status in adminis-tration of its educational policies, enrollment, or hiring policies,and other school-administered programs.346Or, as Scattergood restates its policy: “Who is a Scattergoodian? They might comefrom Brooklyn, Kabul, or Des Moines. Their biggest passion might be social justice,biology, or Ultimate Frisbee. They might be Quaker, Muslim, Jewish, Christian, oratheist. They all believe in promoting a positive learning environment for all.”347Other schools also have robust non-discrimination policies. One Lutheranschool provides: “All are Welcome: St. Paul’s welcomes all. No matter your ability,ethnicity, gender, gender identity, place of origin, race, religion, or sexual orienta-tion, there is a place for you here.”348 Another example is a Catholic school whosepolicy provides:In alignment with Catholic Church teachings, Holy Familybelieves all members of our school community are responsiblefor advancing an understanding of and respect for diversity as itincludes, but is not limited to ability, age, belief, ethnicity, familystructure, sex, race, religion, sexual orientation, and socioeco-nomic status. Therefore, Golden Eagles will hold one anotheraccountable to behavior worthy of our Catholic environment.349Some schools cast their policies in terms of inclusiveness, at least to a point.One Lutheran school provides: “At Clarinda Lutheran School, we welcome alldenominations of Christianity.”350 A large, urban Catholic high school is inclusiveat the start: “Dowling Catholic High School is committed to serving the Greater DesMoines Catholic community and embracing learners of all faiths.”351 It turns out “allfaiths” is imprecise, as the policy continues: “In an environment that is faithful,caring and dedicated, Dowling Catholic forms each student to become a Christ-centered leader.”352346 Employment Opportunities, SCATTERGOOD FRIENDS SCH., https://scattergood.org/employment-opportunities/ [https://perma.cc/8SUQ-AMRN] (last visited Mar. 4, 2024).347 Who is a Scattergoodian?, SCATTERGOOD FRIENDS SCH., https://scattergood.org/who-is-a-scattergoodian/ [https://perma.cc/EH46-5MR8] (last visited Mar. 4, 2024).348 About St. Paul’s School, ST. PAUL’S LUTHERAN SCH., https://www.stpaulswaverly.org/about-school [https://perma.cc/7V6J-X3YU] (last visited Mar. 4, 2024).349 Holy Family Catholic Schools Parent and Student Policy & Procedure Manual2023–2024, HOLY FAM. CATH. SCHS. 1, 4 (2023), https://www.holyfamilydbq.org/wp-content/uploads/2022/06/HFCS-Policy-Procedure-Handbook.pdf [https://perma.cc/N293-JL42].350 Interested?, CLARINDA LUTHERAN SCH., https://clarindalutheranschool.com/interested-in-cls/ [https://perma.cc/RQM4-X3MA] (last visited Mar. 4, 2024).351 Admissions, DOWLING CATH. HIGH SCH., https://www.dowlingcatholic.org/admissions/enrollment-process-for-incoming-freshmen [https://perma.cc/V9N9-4NZN].352 Id.832 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771The number of citizens who would be subjected to discrimination by the varioussects with which the religious schools are affiliated would be very substantial. Forexample, consider the admissions program of the Hull Protestant Reformed Chris-tian School, cited above for its policy claiming the right to discriminate on the basisof religion, gender identity, and sexual orientation. For a child to be admitted, thechild’s parents “must be a member in good standing of a reformed Christian churchwhich has adopted the Heidelberg Catechism, Canons of Dordt, and Belgic orNetherlands Confession as their official creeds.”353 The parents “must commit tomaintaining a Christian home,” and “must consent to the Society’s Constitution, By-Laws, Rules, and Policies.”354 The Protestant Reformed Church has three congrega-tions in Iowa, one in Doon and two in Hull, with a combined membership of around900.355 Iowa has a population of almost 3.2 million.356 With less than .03% of thestate’s population eligible to send their children to the Hull Protestant ReformedChristian School, the number of citizens being protected by the compulsion guaran-tee is very substantial.The disparity between the religious affiliations of the schools which stand toreceive public funds under the education savings account program and the Iowapopulation, and the number of Iowans who would be discriminated against by thoseschools, are illustrations of why the religious freedom protections of the compulsionguarantee make the state funding program unconstitutional.The religious liberty protection of the compulsion guarantee would be sufficienteven it was only a single citizen whose faith was denied by the activities of otherreligions being funded with public funds to which the disfavored citizen contributed;even if only a single citizen was discriminated against by excluding a single citizenfrom participating in the activities of favored religious groups. But the popularopposition to the education savings account program was not in any way so limited:the education savings account program was opposed by over 60% of Iowans.357353 Hull Protestant Reformed Christian School, Parent-Student Handbook, HULL PROTES-TANT REFORMED CHRISTIAN SCH. 1, 10 (2023), http://www.hprcs.com/Parent_Student_Handbook_-_5_4_23_1.pdf [https://perma.cc/3SUF-4F3J]. There is a mechanism by which parentswho are not members of a Protestant Reformed Church may qualify by interview with acommittee. Id.354 Id.355 Church Listings PR Churches (USA & Canada), PROTESTANT REFORMED CHURCHESIN AM., http://www.prca.org/about/listings/churches/usa-canada [https://perma.cc/WB5C-YQ6T] (last visited Mar. 4, 2024). The three Protestant Reformed Churches in Americacongregations in Iowa had a combined membership of 946 adherents in 2020. The Asso-ciation of Religion Data Archives, Top 5 Protestant Reformed Churches in America States(2020), https://www.thearda.com/us-religion/group-profiles/groups?D=668 [https://perma.cc/K7DB-2LFH].356 QuickFacts: Iowa, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/fact/table/IA/PST045222 [https://perma.cc/EPP8-D4DZ] (last visited Mar. 4, 2024).357 See Gruber-Miller & Hernandez, supra note 216 (reporting 62% in opposition, 34%2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 833III. THE CARSON V. MAKIN COMPLICATIONThe determination that payments of public funds to religious schools under theeducation savings account program violate the compulsion guarantee of the IowaConstitution does not end the inquiry. In 2022, the United States Supreme Courtdecided Carson v. Makin, striking down the exclusion of religious schools fromparticipation in a Maine tuition assistance program, and complicating our wayforward.358Because of its sparse population in rural areas, Maine provided tuition assistancefor families living in areas where the local authorities did not operate schools.359Parents in such a situation might direct state-funded tuition assistance grants toprivate schools.360 In 1981, the program was amended to require that the receivingschools be “nonsectarian.”361The Carson majority, in an opinion authored by Chief Justice Roberts, foundthat the Maine exclusion of sectarian schools from the tuition assistance grantprogram violated the Free Exercise Clause; “Maine may provide a strictly seculareducation in its public schools,” the Court said.362 The analysis continued: “A Stateneed not subsidize private education. . . [b]ut once a State decides to do so, it cannotdisqualify some private schools solely because they are religious.”363It is perfectly compatible with Carson for a state to decide, as a matter offundamental policy, that it will not use state funds to support religious schools,which we now understand to mean that it may not use state funds to support secularprivate schools either. If a state made such a fundamental policy choice, the appro-priate place to memorialize it would be in the state constitution. As long as thatfundamental policy is implemented in a way that does not differentiate betweenreligious and secular private schools, it comports with the Federal Free ExerciseClause under Carson.Why might a state implement such a policy? As in 1844, the underlying ratio-nale would be one of religious liberty, that citizens ought not be forced through theirin favor, and 4% unsure). The education savings account program was narrowly favored byRepublicans (51% to 44%) but was opposed by independents (63% to 34%) and Democrats(82% to 12%). Id. It was narrowly favored by Evangelicals (49% to 46%) but was opposedby Catholics (57% to 39%) and Protestants (57% to 39%). Id. Iowans with children underthe age of 18 opposed the program (59% to 38%), as did parents with children in publicschool (61% to 36%). Id. The program to finance religious schools with public funds wassigned by the Governor just two weeks after it was introduced. Id.358 See 142 S. Ct. 1987, 2002 (2022).359 Id. at 1993.360 Id.361 Id. at 1994.362 Id. at 2000.363 Id. (quoting Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020)).834 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771payment of taxes to facilitate a religion with which they do not agree.364 If anything,the case for such a provision has grown stronger over the past one hundred andeighty years as our nation has grown more diverse in matters of religion.Iowa’s education savings account program does not exclude religious schoolsfrom participation in public-funded payments from the education savings accounts,so it does not violate the Federal Free Exercise Clause under the Carson analysis.But if plaintiffs successfully sued to strike down education savings account pay-ments to religious schools as violative of Article 1, Section 3, Clause 3 of the IowaConstitution, it would create a situation, under Carson, implicating the Federal FreeExercise Clause. This would invite the Federal courts to intervene, declaring thestate’s compulsion guarantee invalid as applied, and forcing Iowa to fund educationsavings account payments to religious schools.Of course, there is a way to honor both the Federal Free Exercise Clause ascurrently interpreted by the Supreme Court and the state constitution religiousliberty compulsion guarantee. If the state constitution prohibits payments to reli-gious schools, and the Federal Constitution requires the state to treat private reli-gious and non-religious schools the same, the answer is a holding that the state isprohibited from funding both religious and non-religious schools.The solution is for the plaintiffs challenging the Iowa education savings accountprogram to request that the Iowa Supreme Court first strike down the transfer tax-funded payments to religious schools as violative of the state’s compulsion guaran-tee, and then, in the same opinion, to strike down the remaining education savingsaccount tax-funded payments to non-religious schools as violative of the FederalFree Exercise Clause.365CONCLUSIONIn determining whether allocating tax-generated public funds to religiousschools violates the compulsion guarantee of the Iowa Constitution, it is helpful tobe clear about what is at issue and what is not. Whether religious schools providevaluable educational opportunities to some students is not the question. I am per-fectly willing to stipulate that some students in some situations benefit from havingaccess to religious schools.Neither is it the question of whether parents have a free exercise right to havetheir children attend religious schools; of course, parents have that right to accessreligious schools precisely because the schools provide religious experiences thatimplicate the free-exercise rights of the students and their parents under the Federaland state constitutions, confirming that the schools are indeed ministries.364 See id. at 2005.365 The Iowa Supreme Court might also declare the resulting state-funded educationsavings account payments to non-religious schools as a violation of the Free Exercise Clauseof the Iowa Constitution, if it wants to adopt the reasoning of Carson. See generally id.2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 835What is at issue here is whether taxpayers should be required to subsidizereligious sects by paying for access to such religious schools with public funds. TheKnowlton court addressed this issue nicely:Neither do we, expressly or by implication, disparage parochialor private schools for those whose consciences or preferenceslead them to make use of such means for the education of theirchildren. We can and do hold in high respect the convictions ofthose who believe it desirable that secular and religious instruc-tion should go hand in hand, and that the school which combinesmental and spiritual training is best adapted to the proper devel-opment of character in the young. The loyalty to their professedprinciples which leads such persons to found and maintainschools of this class at their private expense, while at the sametime bearing their equal burden of taxation for the support ofpublic schools, is worthy of admiration, and convincing proof oftheir sincerity.366But, the Knowlton court went on to observe that the parental decision to have one’schildren attend a religious school does not mean the government should subsidizethe choice:But it is doubtless true that this double burden (double onlybecause voluntarily assumed) sometimes renders those who bearit susceptible to the misleading argument that. because they thuscarry an extra load for conscience’s sake, there is somethingwrong in the policy which forbids them to make the public schoola means for accomplishing the end for which the parochialschool is designed. . . . The spirit which would make the statesponsor for any form of religion or worship, and the religion,whether Protestant or Catholic, which would make use of any ofthe powers or functions of the state to promote its own growthor influence, are . . . inconsistent with the equality of right andprivilege and the freedom of conscience which are essential tothe existence of a true democracy.367In 1844, the drafters of the Iowa constitution reflected the voluntary and demo-cratic religious convictions of their time. In Article 1, Section 3, Clause 3, theywrote a religious liberty guarantee that citizens would not be compelled to pay taxes366 Knowlton v. Baumhover, 166 N.W. 202, 212 (Iowa 1918).367 Id.836 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771for the state to fund religious activities with which, inevitably, some citizens woulddisagree.In 1918, the Iowa Supreme Court in Knowlton applied that religious libertyguarantee to strike down the use of state funds to support what was, for all intentsand purposes, a parochial school. The court proclaimed that it is the duty of courts“to enjoin the defendants and their successors in office from directly or indirectlymaking any appropriation or use of the public funds for the support or in aid of suchparochial school, or of any so-called public school maintained or conducted inconnection with such parochial school.”368 In short, “[a parent] has no right . . . toask that the state . . . expend money acquired by public taxation, in training his [orher] children religiously.”369In 2023, the Iowa courts have a duty to enjoin state officials from directly or in-directly making any appropriation or use of public funds for support of religiousschools under the education savings account program. In the end, this simply is nota difficult judgment if approached in good faith. The compulsion guarantee prohibitsthe state from collecting taxes to fund ministries, to train children religiously. Religiousschools are ministries. They teach their students religion. They are pervasivelyreligious. Ergo, the practice of supporting them with public funds is unconstitutional.***In September of 1890, The Kansas Catholic newspaper printed an editorial onthe Poughkeepsie Plan.370 The editorial outlined the agreement as:[A]n arrangement by which the pastor rented the parochialschool building to the public school board for a nominal rental,and the expences [sic] of the school were then to be paid out ofthe public school fund. But the teachers were to be selected bythe public school board, the public school text books were to beused, and the school was to be conducted in all things accordingto the rules for the government of the public schools made by thepublic school board.371The writers were candid that although the selection of teachers was formally doneby the public school board, in fact they were selected by the parish priest.372 The368 Id. at 214.369 Id. at 207.370 See generally The Poughkeepsie Plan, THE KAN. CATH., Sept. 18, 1890. The editorial,which responded to Archbishop Ireland’s speech to the National Education Association, inwhich he advocated adoption of the Plan “as a means of giving at least a measure of fair playto Catholics,” was apparently reprinted from The Michigan Catholic newspaper. Id. at 2.371 Id.372 Id. (“[T]he teachers named by the pastor of the parochial school were appointed by the2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 837editorial noted that the teachers were “three Sisters of Charity and five lay teachers.It is to be presumed that the lay teachers are Catholics.”373The element of the Plan which caused concern for the editorial writers was theagreement that religious instruction not take place in the classroom or during regularschool hours.374 This compromise troubled the writers:Now, while it must be conceded that such a Catholic school isbetter than no Catholic school at all—and better in an almostincomprehensible degree than the ordinary public school—yetit will be observable to all real Catholics that such a school is notin the real way, a Catholic school.375For the editorial writers, this was not a compromise worth making:Now, the Poughkeepsie plan excludes the Catholic religion fromthe school room during the school hours. Should the Catholicreligion be excluded from the Catholic school for one hour?Remember, in a real Catholic school the Catholic religion isalways present—in the teacher’s manner and garb, in the child’sconception of the very purpose of the teacher, in the crucifix onthe wall, in the statue of the Blessed Virgin or of the patron saintin the niche or on the bracket over the teacher’s desk—not tospeak of the prayer said at certain hours during the day—theHail Mary when the clock strikes, the Angelus when the noonhour sounds, etc., etc.,. Oh, that we had time and ability to setforth here the difference between a real Catholic school and theordinary American public school!376school board . . . [because] the priests who have been successive pastors of that church havebeen popular in the city and have been able to keep the school board in good disposition andwilling to continue the ‘plan’ in the spirit intended by the priest who established it.”).373 Id.374 Id. (“But the Poughkeepsie plan provided that there should be no religious teachingduring the legal school hours and that whatever religious instruction was given should be outof, and either before or after, the legal school hours.”).375 Id.376 Id. The editorial allowed that the Plan might be appropriate for a parish “where thepeople were so poor that they could not at all support a parochial school” because “it wouldfurnish for their children a school that would be taught by Catholic teaches [sic], some ofwhom would be religious, whose manners and garb would be of themselves teachers ofmorals and religion.” Id.838 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771In the end, the Kansas editorial writers thought the compromise too great: “May Godprotect the Catholics of the United States if we are ever driven to make such ar-rangement as that called the ‘Poughkeepsie plan’ for general acceptance.”377The Poughkeepsie plan as agreed to in Maple River called for the same compro-mise. Although the public board formally appointed the teachers, they were sistersdesignated by the parish priest.378 There was to be no religious instruction in theclassroom or during school hours.379 But the priest and the teaching sister simplereneged on that portion of the agreement and for almost a decade taught the cate-chism and gave religious instruction in the classroom during regular school hours.380The contemporary education savings account scheme lacks even the nuance ofthe Poughkeepsie Plan. There is no pretense that public funds will not be used tosupport religious education. And that is why the education savings act is unconstitu-tional under Iowa’s religious freedom compulsion guarantee.377 Id. The same month, an editorial appeared in The Luxemburger Gazette, an IowaCatholic newspaper published in predominantly Catholic Dubuque, but with a statewidereadership. These editorial writers also came out against the Poughkeepsie Plan because ofwhat would be given up:Because in a truly Catholic school religion should permeate all aspectsof school instruction and specifically all books should breathe theCatholic spirit. School should open and close with Catholic prayers. Inevery classroom at least a crucifix should be displayed. In primers andcoursebooks kids should be exposed to the Bible, its history, the life ofSaints and the deeds of Catholic men. In History the accomplishmentsof the Catholic church for humanity should be discussed lively andLuther and other sect leaders should be characterized appropriately, inscience the questionable hypotheses of atheist academics should beeradicated and disproven, and all instruction should simply create anintimate connection with religion.The Poughkeepsie Plan, THE LUXEMBURGER GAZETTE, Sept. 30, 1890, at 4 (translated fromthe original German).378 Knowlton v. Baumhover, 166 N.W. 202, 210 (Iowa 1918).379 See id.380 See id. at 204 (“From the beginning, and for a period of more than nine years, the studyof the Catholic catechism and the giving of religious instruction were part of the dailyprogram of instruction in both rooms.”).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 839APPENDICESA. STATE CONSTITUTION COMPULSION GUARANTEES1. Alabama: ALA. CONST. art. I, § 3 (“[T]hat no one shall be compelled by law .. . to pay any tithes, taxes, or other rate for building or repairing any place ofworship, or for maintaining any minister or ministry . . . .”).2. Arkansas: ARK. CONST. art. II, § 24 (“[N]o man can, of right, be compelled to. . . erect, or support any place of worship; or to maintain any ministry againsthis consent.”).3. Colorado: COLO. CONST. art. II, § 4 (“No person shall be required to . . . supportany ministry or place of worship, religious sect or denomination against hisconsent.”).4. Connecticut: CONN. CONST. art. VII (“[N]o person shall by law be compelledto . . . support . . . any congregation, church or religious association.”).5. Delaware: DEL. CONST. art. I, § 1 (“[N]o person shall or ought to be compelled. . . to contribute to the erection or support of any place of worship, or to themaintenance of any ministry, against his or her own free will and consent . . ..”).6. Idaho: IDAHO CONST. art. I, § 4 (“No person shall be required to . . . support anyministry or place of worship, religious sect or denomination, or pay tithesagainst his consent . . . .”).7. Illinois: ILL. CONST. art. I, § 3 (“No person shall be required to . . . support anyministry or place of worship against his consent . . . .”).8. Indiana: IND. CONST. art. I, § 4 (“[N]o person shall be compelled to . . . erect,or support, any place of worship, or to maintain any ministry, against his con-sent.”).9. Iowa: IOWA CONST. art. I, § 3 (“[N]or shall any person be compelled to . . . paytithes, taxes, or other rates for building or repairing places of worship, or themaintenance of any minister, or ministry.”).10. Kansas: KAN. CONST. BILL OF RIGHTS § 7 (“[N]or shall any person be com-pelled to . . . support any form of worship . . .”).840 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:77111. Kentucky: KY. CONST. BILL OF RIGHTS § 5 (“[N]or shall any person be com-pelled . . . to contribute to the erection or maintenance of any [place of worship],or to the salary or support of any minister of religion . . .”).12. Maryland: MD. CONST. DECLARATION OF RIGHTS, art. 36 (“[N]or ought anyperson to be compelled to . . . maintain, or contribute, unless on contract, tomaintain, any place of worship, or any ministry . . . .”).13. Michigan: MICH. CONST. art. I, § 4 (“No person shall be compelled . . . againsthis consent, to contribute to the erection or support of any place of religiousworship, or to pay tithes, taxes or other rates for the support of any minister ofthe gospel or teacher of religion.”).14. Minnesota: MINN. CONST. art. I, § 16 (“[N]or shall any man be compelled toattend, erect or support any place of worship, or to maintain any religious orecclesiastical ministry, against his consent . . . .”).15. Missouri: MO. CONST. art. I, § 6 (“That no person can be compelled to erect,support or attend any place or system of worship, or to maintain or support anypriest, minister, preacher or teacher of any sect, church, creed or denominationof religion . . . .”).16. Nebraska: NEB. CONST. art. I, § 4 (“No person shall be compelled to attend,erect or support any place of worship against his consent . . . .”).17. New Jersey: N.J. CONST. art. I, § 3 (“[N]or shall any person be obliged to paytithes, taxes, or other rates for building or repairing any church or churches,place or places of worship, or for the maintenance of any minister or ministry,contrary to what he believes to be right or has deliberately and voluntarilyengaged to perform.”).18. New Mexico: N.M. CONST. art. II, § 11 (“No person shall be required to . . .support any religious sect or denomination . . . .”).19. Ohio: OHIO CONST. art. I, § 7 (“No person shall be compelled to . . . erect orsupport any place of worship, or maintain any form of worship, against hisconsent . . . .”).20. Pennsylvania: PA. CONST. art. I, § 3 (“[N]o man can of right be compelled to .. . erect or support any place of worship, or to maintain any ministry against hisconsent . . . .”).2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 84121. Rhode Island: R.I. CONST. art. I, § 3 (“[N]o person shall be compelled . . . tosupport any religious worship, place, or ministry whatever, except in fulfillmentof such person’s voluntary contract . . . .”).22. South Dakota: S.D. CONST. art. VI, § 3 (“No person shall be compelled to attendor support any ministry or place of worship against the person’s consent . . . .”).23. Tennessee: TENN. CONST. art. I, § 3 (“[N]o man can of right be compelled toattend, erect, or support any place of worship, or to maintain any ministeragainst his consent . . . .”).24. Texas: TEX. CONST. art. I, § 6 (“No man shall be compelled to attend, erect orsupport any place of worship, or to maintain any ministry against his consent.”).25. Vermont: VT. CONST. ch. I, art. 3 (“[T]hat no person ought to, or of right can becompelled to . . . erect or support any place of worship, or maintain any minis-ter, contrary to the dictates of conscience . . . .”).26. Virginia: VA. CONST. art. I, § 16 (“No man shall be compelled to . . . supportany religious worship, place, or ministry whatsoever . . . .”).27. West Virginia: W. VA. CONST. art. III, § 15 (“No man shall be compelled to .. . support any religious worship, place, or ministry whatsoever . . . .”).28. Wisconsin: WIS. CONST. art. I, § 18 (“[N]or shall any person be compelled to .. . erect or support any place of worship or to maintain any ministry, withoutconsent . . . .”).842 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771B. ACCREDITED 2022 NON-PUBLIC SCHOOLS IN IOWA1. [School name]a. Location / district / school:b. Religious identity:c. Enrollment:d. ESA public funds estimate (Year 3): $e. Mission:f. Religious education:g. Religious values infused:[The complete Appendix B, with the indicated entries for all 183 accredited privateschools, is available at: http://wm.billofrightsjournal.org/?page_id=1190.Alternatively, view Appendix B of this Article on the William & Mary Bill of RightsJournal’s Repository, found here: https://scholarship.law.wm.edu/wmborj.]2024] TAX FUNDS FOR RELIGIOUS SCHOOLS 843C. ACCREDITED 2022 NON-PUBLIC NON-RELIGIOUS SCHOOLS IN IOWA1. Bergman Academya. Location / district / school: Des Moines / 1737 / 8505b. Religious identity: Nonec. Enrollment: 308d. ESA public funds estimate (Year 3): $2,458,7642. Jordahl Academya. Location / district / school: BCLUW (Grundy)/ 0540 / 8225b. Religious identity: Nonec. Enrollment: 2d. ESA public funds estimate (Year 3): $15,9663. Maharishi Schoola. Location / district / school: Fairfield / 2169 / 8502b. Religious identity: Nonec. Enrollment: 126d. ESA public funds estimate (Year 3): $1,005,8584. Montessori School of Mariona. Location / district / school: Linn-Mar / 3715 / 8101b. Religious identity: Nonec. Enrollment: 9d. ESA public funds estimate (Year 3): $71,8475. Rivermont Collegiate a. Location / district / school: Bettendorf / 0621 / 8110b. Religious identity: Nonec. Enrollment: 79d. ESA public funds estimate (Year 3): $630,6576. Summit Schools Inc a. Location / district / school: Cedar Rapids / 1053 / 8200b. Religious identity: Nonec. Enrollment: 78d. ESA public funds estimate (Year 3): $622,6747. Willowwind Schoola. Location / district / school: Iowa City / 3141 / 8102b. Religious identity: None844 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 32:771c. Enrollment: 69d. ESA public funds estimate (Year 3): $550,827

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