Late Edition: Separating the Cause from the Clause

A few years ago, the state of Ohio began a voucher program in the city of Cleveland, providing a $2,250 tuition credit to low-income parents who wished to send their children to private schools. Last December, the Sixth Court of Appeals said the program was an unconstitutional “establishment” of religion because a majority of parents chose to send their children to religious schools. If the U.S. Supreme Court decides to hear the appeal, the case could become one of the most important to be litigated in the past half-century.

The Supreme Court’s jurisprudence on religion—let me put this kindly—is not among its most distinguished body of work. Beginning in the late 1940s, the Court began a long labor of deconstruction on the First Amendment, transforming its once relatively well-understood and settled principles into an instrument of modernist, secular aggression. It created an elaborate and largely false mythology of the amendment’s origins and history and imposed its newly contrived understanding on state and local governments in blatant disregard of the plain meaning of the text (“Congress shall make no law….”).

Over the next 30 years or so, virtually every form of traditionally sanctioned government support for religion, whether direct or indirect, was struck down. Shifting majorities of the Court contrived a wide array of confusing and conflicting tests, but no matter what the constitutional rationale, the results were almost always the same: (1) Government approval of religion, even when proffered on a nonsectarian basis, was said to be indistinguishable from government endorsement of sectarian religious doctrine; and (2) somehow the claims of the village atheist prevailed over those of believers. Thus a government-sanctioned creche on a courthouse lawn is held to be a forbidden establishment of religion, whereas government-subsidized sacrilegious art is not.

Changing the law by judicial fiat is one thing, but altering the religious customs of a people is not so easily accomplished. Much to the chagrin of secularists, people of faith have not gone gently unto a Godless night. If anything, the past 25 years have witnessed a remarkable resurgence of religious sentiment, despite the current state of the law. And beginning about 15 years ago, even the Supreme Court has begun to trim its sails. A somewhat unstable majority of justices has sought to relevel the playing field so that not every accommodation of religious sentiment will be understood as a prohibited establishment.

In a case from its last term, for example, the Court upheld the right of a student group to use public school facilities for after-school fellowship, Bible-reading, instruction, and prayer (Good News Club v. Milford Central School). Permitting a religious group to use public facilities is not tantamount to establishing religion. By seeking to restrict its facilities to use by secular organizations, said the Court, the school engaged in “viewpoint discrimination” against religious groups. How far the majority will go with this line of reasoning remains to be seen, but the pattern of recent cases has been generally favorable, at least where the government policy is shown to be secular in purpose and neutral in application.

Whether the majority’s new resolve will hold up this term in the Cleveland school-voucher case remains to be seen. Anticipating the importance of the case, the Bush administration took the unusual step of filing a brief urging the Court to review the Sixth Circuit decision, even though the United States is not a party in the case. The Cleveland program has a clear secular purpose: to permit at least some low-income youngsters to escape from blatantly incompetent schools in that city. Its religious “effects,” such as they are, are incidental—if not accidental—and in any event accrue from the independent decisions of parents, not the government.

Even so, in these days one never wants to underestimate the force of secular ideological zeal. The issues at stake in the Cleveland case range far beyond the immediate question of whether the most interesting and valuable educational reform in decades will be allowed to continue—although that is important enough, as any low-income parent in places like Cleveland and Milwaukee will tell you. The larger question in play is whether the justices are truly serious about remedying the adverse effects of the Court’s own misguided jurisprudence on the Establishment Clause.

Michael M. Uhlmann

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Michael Martin Uhlmann (1939-2019) served as professor of government in the department of politics and policy at Claremont Graduate University and Claremont McKenna College. Prior to teaching at Claremont, Dr. Uhlmann was a senior fellow at the Ethics and Public Policy Center, Vice President for Public Policy Research at the Bradley Foundation in Milwaukee, Wisconsin, and taught at the George Mason University Law School.

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