Interpreting the religion clause of the First Amendment, to put it mildly, has not been the Supreme Court’s finest hour. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Framers took just sixteen words to declare their intention; the justices have taken hundreds of thousands to obscure and confound it. Mind you, the meaning of the First Amendment is not instantly self-evident. But you have to work overtime to mess it up as badly as the Court has done.
The tale begins, not with the founding, but with the Everson case in 1947, when the justices took it upon themselves to fashion an elaborate and misleading mythology about the Amendment’s origins and meaning, one that owed far more to contemporary ideology and the Court’s own predilections than it did to our constitutional traditions. According to the new dispensation, the First Amendment forbade not only governmental preference for one religion over another, but even non-discriminatory aid for religion in general. As Justice Black put it, “No tax in any amount, large or small, can be levied to support any religious activities or institutions. . . .” In reaching that conclusion, Black had to ignore much of American history, which is redolent with examples in which both the federal and state governments had routinely supported religion as essential to the maintenance of republican institutions.
Nowhere has the Court’s work done greater mischief than in litigation dealing with schools. Under the aegis of the Court’s strict separationist doctrine, public schools have been systematically stripped of virtually every symbolic and intellectual connection to our country’s unique religious heritage. And as far as religious schools are concerned, the Court has erected insuperable legal barriers to almost every form of government assistance, even where such aid is non-discriminatory. On the Court’s reckoning, religion is such an intensely private experience that even indirect forms of government aid impose an unconstitutional burden upon those who oppose it. In application, however, such a principle must necessarily work a discrimination against those of religious disposition.
Although the Court continues to invoke the mantra of strict “separationism,” it has (among other things) approved tax exemptions for religious institutions and long-standing support for legislative and military chaplains. Whatever one might think of such practices, they cannot be reconciled with the constitutional theory of Everson and its progeny. Accordingly, the Court has in recent years evinced much discomfort with its own constitutional doctrine, especially as it has been applied to schools. This dissatisfaction captured a majority of the Court in the 1997 Agostini case, where Justice O’Connor clearly indicated that certain forms of voucher programs for education at religious schools might pass constitutional muster. Some of the states have seized upon this invitation and are hoping that the majority meant what it said.
The most prominent of these efforts is in Wisconsin. In June, the Wisconsin Supreme Court upheld the Milwaukee Parental Choice Program (MPCP) against a concerted First Amendment challenge. The MPCP authorizes tuition grants to the parents of low-income children which they are free to use for education, if they so choose, at sectarian schools. Is this form of aid forbidden? No, said the Wisconsin court, because it is the parents, not the state, who determine where the money ends up. Quoting a recent opinion of Justice O’Connor, the court stated, “No reasonable observer is likely to draw from [these facts] an inference that the State itself is endorsing a religious practice or belief.”
This conclusion is of course hotly contested by all the usual suspects—the NEA, the ACLU, Americans United for the Separation of Church and State, etc.—who when the time comes will try to convince the Supreme Court that the MPCP is an egregious affront to the First Amendment. In fact, it is an affront only to the ahistorical, gerry-built, and increasingly unworkable theory of the First Amendment contrived by the Court fifty-one years ago in Everson. To be sure, the Court is not going to overrule Everson even if it upholds the Wisconsin ruling, but if it does sustain the MPCP some of the most pernicious effects of that doctrine will be eradicated. And if the Wisconsin statute is upheld, you can bet that many other states will follow suit. That is precisely what worries the opponents, as well it should. For what’s at stake here is not only a question of legal doctrine, but of the freedom of parents to control their children’s education. Those with sufficient means have always been able to opt out of the pervasive secularism of public schools. The MPCP model offers that opportunity to the parents of low-income students, who the last time I looked, were supposed to have the same constitutional rights as everyone else.