The Supreme Court's 5-4 ruling yesterday upholding the Cleveland school voucher program against a First Amendment challenge was dramatic, but not surprising.
The decision in Zelman v. Simmons-Harris was foreshadowed by another 5-4 ruling handed down 19 years ago and authored, not coincidentally, by Justice William Rehnquist, who also wrote yesterday's majority opinion.
The 1983 ruling was Mueller v. Allen, and when it was issued, some analysts saw it even then as a green light for school voucher plans. It just took nearly two decades for the light to fully change from amber to green.
In the Mueller decision, which was repeatedly cited yesterday by now-Chief Justice Rehnquist, the Court upheld a Minnesota state tax deduction for school expenses including the expenses of attending parochial school. As Rehnquist noted yesterday, 96% of the beneficiaries of the Minnesota tax deduction were parents of students in parochial schools. Eerily, in the Cleveland voucher case, the percentage of students using the vouchers for parochial schools was the same, 96. And to Rehnquist, both numbers, high as they were, meant nothing.
"We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law," Rehnquist wrote in Mueller, and he repeated it in Zelman.
So all the statistical claims and counter-claims made in the Ohio case were swept away by Rehnquist, who focused solely on whether the public money flowed to religious schools through the "true private choice" of parents. Noting that the Cleveland voucher money goes to parents who then sign the checks over to the school they choose, Rehnquist said government was not favoring religious schools over others. "State aid reaches religious schools solely as a result of the numerous independent decisions of private individuals," wrote Rehnquist. As a result, he said, the program did not amount to a government establishment of religion barred by the establishment clause of the First Amendment.
This conclusion, forecast in Mueller, was also hastened by two other rulings: Witters v. Washington Department of Services for Blind in 1986, approving a scholarship program used to attend a private Christian college, and Zobrest v. Catalina Foothills School District, a 1993 decision in which the Court approved a federal program that provided sign-language interpreters to help deaf children in schools including parochial schools. Rehnquist described the precedents as "an unbroken line of decisions" allowing such aid.
As foreseeable as yesterday’s ruling might have been, the feeling was inescapable, among the dissenters and others, that the Court crossed a new threshold with the Zelman decision.
"It represents a constitutional counter-revolution, reversing the religious freedoms put in place by our nation's founders," said Norman Redlich, chair of the American Jewish Congress Commission on Law and Social Action.
"School voucher programs differ, however, in both kind and degree from aid programs upheld in the past," wrote Justice Stephen Breyer in dissent. More than in previous approved programs, Breyer said, the Cleveland program directs public money to "a core function of the church: the teaching of religious truths to young children." And whereas the benefit to religion of other programs has been relatively small, the Cleveland voucher program "appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools." Past aid programs, Breyer wrote, may have been "the camel's nose, while the litigation before us is the camel itself."
The most passionate dissenter, Justice David Souter, also lamented the ruling as a significant departure. "Every objective underlying the prohibition of religious establishment is betrayed by this scheme," wrote Souter, referring to the Cleveland program. "Something has to be said about the enormity of the violation." James Madison, he noted, once said that government must not compel a citizen to donate even "three pence" to religion. Another goal of the establishment clause, Souter said, was to keep religions independent and uncorrupted by government, and that too is eroded in the Cleveland voucher plan.
Schools receiving voucher money in Cleveland are required by law not to discriminate in hiring or admissions, and may not teach hatred of any person or group, Souter noted. "When government aid goes up, so does reliance on it," he wrote. "The only thing likely to go down is independence." Like Breyer, Souter predicted tension and strife over the allocation of money to a range of religious schools.
"Every major religion currently espouses social positions that provoke intense opposition," wrote Souter. "Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America's Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines a nationalistic sentiment in support of Israel with a deeply religious element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife's obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention."
The impact of the ruling will be felt strongly outside the school context, many analysts predict. It will likely aid President Bush's faith-based initiative proposal, which would allow tax dollars to go to faith-based social programs at the choosing of aid recipients.
"The Cleveland case is especially important because whatever is constitutional in education is likely to be constitutional outside the education context," said George Washington University law professor Robert Tuttle, who is affiliated with the Roundtable on Religion and Social Welfare Policy. "In each case, the issue is likely to be whether the recipients of aid have 'true private choice' between religious and secular services."
Ironically, school voucher programs themselves still face substantial hurdles at the state level. The constitutions of 36 states still contain some form of what are called "Blaine amendments," barring in explicit terms the use of public funds for religious purposes. Building on anti-Catholic sentiment in the 1870s, U.S. House Speaker James Blaine sought passage of a U.S. constitutional amendment going well beyond the establishment clause by blocking tax funds from being under the control of any religious sect. When the constitutional amendment failed, most states inserted similar provisions in their state constitutions.
"The next step is to persuade the courts that these remnants of 19th century religious bigotry are violations of the U.S. Constitution and should be nullified," said Kevin Hasson, president of the Becket Fund for Religious Liberty, which has already begun a legal campaign against the Blaine amendments.