WHY THE SUPREME COURT'S RECENT VOUCHERS OPINION WAS WRONG, AND ALSO TYPICAL OF THE COURT'S ESTABLISHMENT CLAUSE APPROACH

By MARCI HAMILTON


hamilton02@aol.com
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Monday, Jul. 01, 2002

Last week, in Zelman v. Simmons-Harris, the Supreme Court upheld Cleveland's voucher plan, by a slim majority of 5-4. Under the plan, government-funded vouchers may be used by parents to send their children to religious, as well as secular schools. The plan had been challenged under the Establishment Clause, but the Court rejected the challenge.

That was a mistake - as James Madison's prescient warnings about religion, power, and politics should remind us. The Cleveland voucher plan plainly constitutes government funding for religious activities, and consequently, the Court's decision to uphold it is worrisome indeed. And it is worrisome, in particular, for religious institutions and religious believers.

Government funding can come with intrusive strings attached - conditions that religious institutions have no choice but to accept (as I discussed in my previous column on charitable choice). Those conditions, in turn, dilute the power of religious institutions to act as a meaningful check on government, and as a voice for, and aid to, citizens that is entirely separate from government.

Government funding for religious institutions can harm the government itself, too. It can corrupt government's focus on the public good, as religious entities become ever more active participants in lobbying for government largesse.

The Voucher Decision in the Context of the Court's Establishment Clause Cases

While the vouchers decision is in error, it is nevertheless not surprising. Rather, it is quite consistent with other Rehnquist Court Establishment Clause cases.

Two elements, in particular, remain absolutely constant in the Supreme Court's Establishment Clause doctrine. First, the Court employs a fact-intensive, empirical approach to every question. Second, the result of each case is determined by the Justices' presumptions about the play of religion in the political process. In sum, the facts of the particular case and the Justices' fundamental views on religion in politics are determinative, regardless of doctrinal labels.

The more a Justice distrusts religion's role in politics - as Madison did - the more likely the government aid will be found unconstitutional. Over the course of his public service, Madison was haunted increasingly by urgent concerns about organized religion's influence, wealth, and political pressure.

For instance, in last week's decision, the majority took the typical empirical approach - looking at the universe of school options, and seeing whether religious schools are unduly favored. The majority concluded the answer was no.

Within that universe, the majority deemed the Cleveland plan constitutional because it offers, to use the Court's term, "true" choice: it includes religious and nonreligious schools, and it includes public and private schools.

The Importance of Justice O'Connor's Separate Concurring Opinion

Justice O'Connor separately concurred in the case. The concurrence has obvious significance, as the Justice was the crucial fifth vote for the result. It should provide comfort to those who feel voucher plans that aid religion will now run rampant, unchecked by courts; O'Connor's concurrence shows that isn't so.

In her concurrence, the Justice adds extensive statistical analysis to try to show that the choice here is truly universal and not skewed toward religious schools. As always, she is looking for rigorous and persuasive facts. The empirical inquiry reflects her sincere concern--voiced more directly in Mitchell v. Helms--that aid may not be skewed toward the benefit of religious institutions.

Justice O'Connor's searching, empirical approach accordingly leaves significant latitude to find future voucher schemes unconstitutional - and that is a good thing. It also opens the way for the Court to someday backtrack from Zelman when litigants gather sufficient data to show how such a scheme alters the balance between church and state in favor of the churches. Wait for the first religious school to build a new addition or to add a new chapel using the new government tuition as seed money.

The Contrast Between the Majority and The Dissent

The dissenters and the majority in Zelman reach different conclusions because they read the facts differently.

The majority claims the Cleveland plan, by provide many options, offers "true choice." Thus, the majority concludes, it does not violate the Establishment clause.

The dissenters also differ from the majority in that they see, in the provision of government aid, the possibility of an abuse of power by religious entities that can threaten democracy and the public good. Pragmatic and distrustful--very much like the Framers--the dissenters thus refuse to adopt the "see-no-evil" stance of the majority.

They are right to remain skeptical. As the Cleveland scheme continues, with the Court's blessing, it will soon become clear how much it, indeed, contributes towards an establishment of religion by the state. The people are not as isolated from the reality of the possibility of religious overreaching as the Justices appear to be.

Now, More Than Ever, A "See No Evil" Approach to Religion Is Unrealistic

Lately, we have endured the Catholic Church's still-emerging sex abuse scandal, seen terrorism carried out by radical Islamic extremists, and witnessed the mainline churches' grabs for power in the state and federal legislatures. In this context, the majority's rosy presuppositions seem curious and sterile, while the dissents' healthy skepticism hits bedrock truth.

Fortunately, there is no need to see Zelman as inviting a sort of Establishment Clause apocalypse in which church and state will soon merge. It is important to remember that Zelman's outcome is a very different animal than its impact.

The state may have won this round, but that does not mean we will see voucher systems crop up everywhere. Granted, we may see some new systems that mirror Cleveland's. But it is equally clear that voucher systems must be justified in public debate and in court under the many state constitutional and statutory constraints, as well as those of the federal Constitution. And again, the analysis must be fact-based and empirical, so every system must be defended on its own merits.

Finally, since this is a time of fiscal emergency in many states, we are unlikely to see a plethora of voucher systems any time soon. As one federal judge commented to me during a discussion of vouchers (and I paraphrase): "Vouchers are a creature of budget surpluses. Constitutionality is second to the question of government ability to pay."

In short, despite Zelman, the legal and political war over vouchers is far from over.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. Her previous columns on church-state issues can be found in the archive of those columns on findlaw.com. Her email address is hamilton02@aol.com

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