Several months on, we can begin to appreciate the full importance of the Supreme Court’s June 27, 2002 decision upholding the Cleveland school voucher program (Zelman v. Simmons-Harris). Anxious parents and children in Cleveland now possess a constitutionally sanctioned means to escape the deplorable public schools that have been inflicted upon them. Their counterparts in other places where voucher programs are already underway-Milwaukee and Florida, for example-will also breathe a sigh of relief. Locales that have heretofore been reluctant to experiment with vouchers may now find the courage to try. Legal and political battles remain to be fought at the state and local level, but voucher proponents throughout the country can proceed without fear that some federal judge will stop them dead in their tracks. In short, Zelman has “legs.”
The opinion for the Court was written by Chief Justice William Rehnquist, who has for years, if not decades, tried to persuade his colleagues that their Establishment Clause rulings lack intellectual coherence. He was joined by Antonin Scalia and Clarence Thomas, who are clear-eyed on First Amendment issues, and by Anthony Kennedy and Sandra Day O’Connor, whose sentiments on the subject appear to be in constant flux. Kennedy, for example, is the author of one of the worst opinions of recent years, Lee v. Weisman (1992), which prohibited voluntary state-sanctioned prayer at graduation ceremonies because it made nonparticipants feel bad. And O’Connor, who has labored mightily to find a theory of the First Amendment she can live with, is notorious for writing opinions that seem to be good for one case only. Even so, their support in Zelman bodes well for any future litigation involving vouchers.
The Chief’s opinion, spare and to the point, rested on three simple propositions: 1) “The program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing school system.” 2) “Program benefits are available to participating families on neutral terms, with no reference to religion.” 3) Not a penny of government money finds its way to religious institutions except by “the deliberate choices of numerous individual recipients.” “The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.”
When put that way, it is hard to see how educational vouchers implicate the First Amendment at all. They shouldn’t-unless you’re forced to factor in five decades of judicial musing on the Establishment Clause. The core of Rehnquist’s argument could have been stated convincingly in a paragraph, even a single sentence. The rest of his opinion was necessitated by the detritus of prior Court opinions, which clutter the legal landscape with conflicting and confusing multi-part tests and much pleasant-sounding but for the most part irrelevant and ill-informed rhetoric about the “wall of separation” between church and state.
The remarkable thing is less that Zelman came out the way it did than that only five Justices could support its conclusion. The other four remain hopelessly tangled in tentacles of the Court’s own contrivance, which, as Rehnquist pointed out in a 1985 dissent, have “proved all but useless as a guide to constitutional adjudication.” If anything, the Chief Justice understated the problem. In truth, ever since Justice Hugo Black concocted a false history of the First Amendment and sold it to his colleagues in 1947 (Everson v. Board of Education), the Court has been chasing its own tail. Examples abound but a few will do.
In 1968 the Court ruled that a state might lend textbooks in secular subjects to students at religious schools without violating the Establishment Clause, but its 1975 reading of the same clause concluded that instructional materials other than textbooks (e.g., maps and film projectors) were constitutionally verboten. As Daniel Patrick Moynihan slyly asked at the time, what are we to do with atlases-which are books of maps? Moynihan’s question reappeared with a vengeance at the Court a few years ago, when the Justices solemnly deliberated about whether computer equipment was more like a book or a film projector. Such is often the stuff of which modern Establishment Clause jurisprudence is made, as if the answer had anything important to say about the meaning of the First Amendment. In the event, a bare majority of the Court held that state subsidies for computers do not an establishment make, but only four Justices were willing to sign a common opinion justifying the result.
Consider another example. The Court banished state-sanctioned Bible reading and prayer from public schools years ago, and more recently brought graduation ceremonies and even high school football games within the ambit of the prohibition. But how do we square those rulings with the Court’s decision permitting the employment of legislative chaplains, who invoke God’s blessings every day before every legislature in the country, including Congress?
Similar examples could be easily adduced, but the point is already clear. He who searches for doctrinal clarity in the cases will search in vain. The only explanatory principle is this: the meaning of the Establishment Clause will be determined by a majority of the Supreme Court, whose members reserve the right to change their minds for any reason or for no reason at all. Being clever lawyers, justices know how to differentiate the cases to accord with some imagined architectonic principle of church-state relations. In this they are aided by the professoriate and the law reviews, for whom there is seldom a Court decision that ten thousand well chosen words can’t explain. But hardly anyone else is fooled. No amount of clever legal parsing can construct a principled understanding of the First Amendment from the Court’s collective ruminations on the subject. That is precisely why litigants and their supporters on all sides bite their fingernails every time a religion case is presented to the Court.
In the run-up to Zelman, for example, everyone knew that the Court would have to confront two conflicting lines of cases from its First Amendment portfolio. On one side were various decisions, chiefly from the 1960s and ‘70s, which might be called the High Church Era of strict separation. The operative principle here is that the Establishment Clause is implicated whenever so much as a nickel of government aid finds its way into a religious coffer, no matter what the government’s intention or how circuitous the route. A federal trial judge and a divided Sixth Circuit panel relied chiefly on cases of this type (especially Committee on Public Education v. Nyquist ) to find the Cleveland voucher program unconstitutional.
Since 1983, the Court has taken a more lenient view of government assistance to religious schools, especially where the controlling decision on where the money is spent is made by someone other than the state itself. The closest case on point in this category is Mueller v. Allen (1983), sustaining a Minnesota tax deduction scheme for educational expenses not unlike that presented by the Cleveland voucher plan. It, too, was a 5-4 decision with Rehnquist writing for the majority.
Both sets of cases contained abundant dicta that might be deployed to justify a conclusion in Zelman, however the case came out. But no one, least of all the parties to Zelman, really believed that there was any way to marry the principles from these mutually exclusive understandings of the First Amendment. In the end, it was believed, the Court would have to choose between high church separationism and a more accommodating non-conformity. Here, as in so many other matters, the key vote was Justice O’Connor, who clearly has a foot in each camp and has tried, for the most part fecklessly, to construct various theories to justify her allegiance to both.
O’Connor is excessively fond of the idea that “establishment” really means “endorsement.” Government support for religion, in her view, can be justified so long as it is not perceived to constitute government approval of the doctrinal opinions associated with the recipient institution or activity. The idea seems appealing at first but crumbles upon reflection. Describing endorsement as a “test” doesn’t make it a useful constitutional rule. What one judge perceives as an unconstitutional endorsement may strike another as a necessary accommodation to protect free exercise, and in fact O’Connor herself has more than once run into that very dilemma. In the end, the endorsement “test” is but a rhetorical device through which judges can articulate their personal preferences.
Justice O’Connor is also much taken, as are a number of her colleagues, with the idea of government neutrality when dealing with religion. On one level, the idea is unexceptionable, indeed worthy of applause. Who would want the government to be other than neutral on such maters? But, although it is less slippery than endorsement, the neutrality test also suffers from certain limits as a controlling principle of law. The government may have little trouble trying to maintain neutrality as between religious groups, as it should. But how can the government remain neutral as between religion and what the Court sometimes refers to as “non-religion”? The Court has suggested that believers and nonbelievers must be treated alike for First Amendment purposes, which seems an admirable goal, but how will a neutrality test resolve the question, now pending in the Ninth Circuit, whether “under God” should be stricken from the Pledge of Allegiance? Leaving the phrase in offends atheists; taking it out would offend believers. Constitutionally speaking, it is a zero-sum game, one that cannot be resolved on the ground of neutrality.
Along with the endorsement and neutrality tests, the Court clings to the criteria set forth in Lemon v. Kurtzman (1973), the principal remnant of the strict separation era. In its original formulation, Lemon held that in order to pass Establishment Clause muster, a government program in aid of religion 1) must have a valid secular purpose, 2) must have substantially secular effects, and in any event, its administration 3) may not lead to undue entanglement between government and religious institutions. Like most multi-part legal tests, there is plenty of wiggle room in the interstices, which enables judges to eviscerate the rule even as they pay lip service to its principles. That has been the short history of the Lemon test. It is still much honored by the Court rhetorically, but exceptions to it are by now so numerous that they may have swallowed the rule. A number of Justices, Scalia most prominent among them, have suggested that Lemon be given a decent burial, on the grounds that the Court no longer takes it seriously. But those Justices who dream of returning to the hallowed days of strict separation are not about to let it go. They will do everything in their power to keep the corpse on artificial life-support for as long as they can.
Such was the legal background against which Rehnquist had to write in Zelman, although, as I say, his argument need not have occupied more than a single paragraph. In a lengthy and powerful 1985 dissent (Wallace v. Jaffree), the Chief Justice laid bare the historical fictions on which Hugo Black had erected his Jeffersonian “wall of separation.” The clear implication of Rehnquist’s opinion was that strict separation was wrong as a matter of history and principle, and unworkable in practice. Everson, in short, did not deserve the totemic devotion bestowed upon it by subsequent Courts. Of course, a judge may indulge bluntness when writing in dissent. Writing for a narrow majority imposes cautionary obligations. Rehnquist got his five votes, which is what he needed, and he did it in the sparest possible way, conceding what was necessary to keep Kennedy and O’Connor on board, but no more. Not only in Zelman, but in two decades of cases preceding it, the Chief Justice has performed a great act of judicial statesmanship. The nation owes him a profound debt of gratitude.
Now that Zelman is on the books, where do we go from here? It is important to remember what is and isn’t at stake in the voucher debate. Private, and especially religious, schools are not going to march across the country displacing public schools. American dedication to the public school tradition is too deeply rooted for that. But the long-run implications of Zelman are not to be underestimated.
First, the decision will bring enormous hope and real opportunity to those sorely oppressed children, mostly poor and minorities, in the inner cities. Until now, they have been indentured to the last plantation, which is what the public schools in many of our major cities have become. Zelman provides a constitutionally protected escape route and makes it possible for poor parents to obtain funding for the journey.
Second, the constitutional validation of vouchers reaffirms the right of parents to direct the education of their children. As the Court itself declared in 1925, the child is not a creature of the state. We need to remind ourselves of that in these days when a menacing and seductive counterculture threatens the souls of the young. The apparatchiks of the education establishment, who worship at the shrines of political correctness and moral relativism, want no other gods before them. Educational vouchers will help to keep them in check.
Third, by injecting a badly needed element of competition into the school market, Zelman will improve the quality of public education. This is already apparent in places like Milwaukee. The same will hold true of Cleveland and any other place where a properly supported voucher program is established.
Fourth, Zelman drives another nail into the coffin of narrow-minded separationism, which has been the bane of public discourse on church-state matters for more than fifty years. The dissenters know this, which is why their opinions were so dyspeptic. Justice David Souter, who has a penchant for thirty-page opinions that law professors love, savaged the Court’s recent First Amendment jurisprudence. He worries that vouchers may not only undermine the public school tradition but may prompt a revaluation of the Everson doctrine as well. The former is so much harum-scarum designed to rally anti-voucher forces, but he may be right about the latter.
Souter, along John Paul Stevens and Stephen Breyer, waved the bloody shirt of national disunity and sectarian warfare. These have ever been the war cries of the strict separationists. Although the argument will not withstand serious scrutiny, its resurrection here may reflect more than a quiet sense of desperation. Breyer raised the specter of “religiously based social conflict,” while Stevens actually suggested that Zelman would usher in religious strife of the sort that afflicts Northern Ireland, the Balkans, and the Middle East. To this hypothetical hysteria, the Chief Justice calmly responded that he could find no evidence of “divisiveness” or “strife” other than the litigation.
The battleground will now shift to the state courts and legislatures, where the constitutional validity of Blaine-type laws (named after Republican Congressman, Senator, and presidential candidate James G. Blaine) will be challenged. These nineteenth-century relics of anti-Catholic bigotry are more draconian in their prohibitions against funding of religious schools than all but the most fevered readings of the Establishment Clause. The battle to eliminate or limit their reach will be long and bloody, in both court and legislature. Zelman cannot directly control the outcome of these cases, but it provides voucher advocates with a new arsenal of legal arguments based on free exercise and equal protection.
Finally, Zelman did one thing more. When the Court incorporated First Amendment freedoms within the Fourteenth Amendment more than two generations ago, it vested itself with monopoly powers to dictate the terms of the church-state debate throughout the entire country. By limiting the reach of the Establishment Clause, Zelman necessarily limits the monopoly of the national judiciary. For the first time in living memory, someone other than federal judges will be able to speak authoritatively about church and state. In and of itself that will be reinvigorating, and who knows: as elected bodies at the state and local level become involved, they may end up teaching judges a thing or two about the real meaning of religion in public life.
Michael M. Uhlmann is Visiting Professor of Government at Claremont Graduate University.