Vouchers and the Constitution II.

• Author: Bresler, Robert J.
• Position: State of the Nation

THE SUPREME COURT ruling on the final day of the 2001-02 term, Zelman v. Simmons-Harris, upheld the Ohio voucher program that was discussed in this column in May. The majority opinion, written by Chief Justice William Rehnquist, has taken Establishment Clause law in a new direction. He rejected the separationist approach first propounded by Justice Hugo Black in Everson v. Board of Education of Ewing (1947). In Everson, Black used the phrase "wall of separation" as a guide to understanding the Establishment Clause. That quote from Thomas Jefferson, in fact, has little to do with the history of the Clause that was largely adopted to prevent the establishment of a national religion. Jefferson's famous phrase was contained in a letter he wrote to the Danbury (Conn.) Baptist Association supporting the opposition to making the Congregationalist Church the established church of Connecticut. Black nonetheless used the quote in Everson to conclude that "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Black's interpretation would bar all but the most-innocuous programs that could benefit religious education. Even in Everson, Black did not go that far, and he permitted a state-funded program that provided funding for the transportation of children to and from both public and religious schools.

Despite Black's language in Everson and widespread use of the Jefferson quote, the Court has never taken a pure separationist view of the Establishment Clause. In Lemon v. Kurtzman (1972), they adopted a more-moderate three-prong test. The so-called Lemon test required that laws providing any assistance to religion must have a valid secular purpose; must be neutral, not having the primary effect of advancing or inhibiting religion; and must not foster an excessive entanglement with religion. Later, in Agostini v. Felton (1997), the Court made it a two-pronged test combining the entanglement inquiry and the neutrality inquiry, since both relied upon similar evidence.

Rehnquist, applying the first prong of the modified Lemon test in Zelman, acknowledged that vouchers had the valid secular purpose "of providing education assistance to poor children." He concluded that vouchers were neutral in regard to religion since the "assistance [goes] directly to a broad class of citizens who, in turn, direct government aid to...