The First Amendment Argument: Spending public tax dollars for religious schools violates Texas state and US federal constitutional separation of church and state.
U.S. constitutional law clearly allows vouchers that include religious schools. On June 28, 2002 in the case of Zelman v. Simmons-Harris, U.S. Supreme Court ruled that vouchers for religious schools do not violate the First Amendment. The court ruled that the vouchers are given to parents, not clergy. It is the parents who choose the schools, not the government. As long as the parents can use the vouchers at secular and religious schools, Congress is not endorsing religion.
Regarding Texas state law, the rulings are not as clear. The Texas constitution contains “Blaine” amendments. These are anti-Catholic amendments passed in the 19th century that discriminated against Catholic private schools in favor of the public schools, which at that time taught Protestant doctrine.
The two Blaine amendments are:
“No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.”
Texas Const. Art. I, sec. 7
“The permanent school fund and the available school fund may not be appropriated to or used for the support of any sectarian school.”
Texas Const. Art. VII, sec. 5(c)
In Texas, since a voucher program has never been successfully passed, the Texas Supreme Court has not had the chance to specifically rule on the issue. However, there have been no rulings in any Texas court prohibiting voucher programs.
Also, in 1973 the Texas Attorney General concluded that providing public funds to parochial schools through tuition equalization grants under a religiously neutral program is not inherently unconstitutional under the Texas Constitution because although Texas’ second Blaine Amendment “prohibits aid to sects[,]” “not all denominational institutions are sectarian in the constitutional sense.”