No constitutional doctrine has been more badly mangled by the Supreme Court than that governing church-state relations. For most of our nation’s history, the language of the First Amendment was understood to forbid government preference for one faith over another. Only in that way could citizens be guaranteed the right to “free exercise” of religion. In short, the No-Establishment and Free Exercise clauses were read as integral parts of a single whole.
Beginning with the Everson case in 1947, however, the Supreme Court added a decidedly unhelpful gloss by decreeing that the government had to be neutral, not only between sects but between religion and what Justice Hugo Black called “irreligion.” This newly contrived distinction has confused separation of church and state, a proposition with which more or less everyone agrees, with separation of religion and society, which is a different idea altogether. In the 30 or so years following Everson, the effort to keep the state neutral as between religion and irreligion worked to benefit those hostile to public expressions of religious sentiment. The discriminatory effect of a doctrine ostensibly designed to prevent discrimination greatly troubles some justices, who in recent years have struggled mightily to extract the Court from its self-created confusion.
This effort is perhaps best revealed in cases involving various forms of aid to religious schools. In the 1970s, the Court invalidated government assistance that had the “primary effect” of advancing religion. But in a series of cases in the past 17 years, a narrow majority of the justices has sought to limit the harshness of the effects test by distinguishing between direct and indirect forms of assistance. In Mueller (1983), the Court upheld tax deductions for educational expenses, even though the bulk of these deductions were taken by parents who sent their children to religious schools. In Witters (1986), a unanimous Court approved the use of public money by a blind student studying for the ministry at a divinity school. Zobrest (1993) sustained a government subsidy for an interpreter used by a deaf student in a Catholic school. And in Agostini (1997), the Court reversed precedent and allowed public school teachers to offer remedial instruction in nonreligious subjects on the grounds of religious schools. Writing for a slim majority, Justice O’Connor all but issued an invitation to bring on a voucher case.
These recent decisions appear to yield a two-part rule: Public funding for religious schooling is constitutional where (a) “the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion and is made available to both religious and secular beneficiaries on a nondiscriminatory basis” (Agostini), and (b) the transmission of funds results not by government direction but parental or student’s choice.
Encouraged by this line of reasoning, a number of states—most notably Wisconsin, Florida, Arizona, and Ohio—have enacted programs to assist parents who choose to send their children to private schools, which in many cases happen to be religious. The Supreme Court declined to review state court decisions validating the Wisconsin and Arizona formulas, and the Florida case is yet in its early stages. All eyes are now on the Ohio voucher scheme, which is pending before Federal District Judge Solomon Oliver in Cleveland. Last August, Judge Oliver issued an injunction, schizophrenic in effect, that permitted previously admitted students to continue in the voucher program while denying assistance to new admittees. In November, following an emergency appeal by the Ohio attorney general, the Supreme Court, by a 5 to 4 vote, lifted Judge Oliver’s injunction until the Sixth Circuit Court of Appeals had an opportunity to review the case.
Judge Oliver’s final decision is expected in a matter of days. Given the preliminary disposition he evinced in August, he will find that the Ohio program is unconstitutional. Sometime this year, the case will proceed to the Sixth Circuit and, whatever the outcome, will almost certainly be argued before the Supreme Court. When it arrives in Washington, the case will present the Court with a splendid opportunity to render justice by undoing the confusion it wrought with the Everson doctrine. Does the First Amendment guarantee true free exercise of religious preference when it comes to schooling, or is it an instrument by which the government may discriminate against religious choice while appearing to remain neutral?