6/28/00 2:10 p.m.
Establishment Clause Housecleaning
The Supreme Court Gets One Right.

By Richard Garnett, professor at Notre Dame Law School

ifty years ago, John Courtney Murray observed of the Supreme Court's Religion Clause jurisprudence that "the First Amendment has been stood on its head. And in that position it cannot but gurgle juridical nonsense." True enough. In too many areas, the Court's First Amendment case law is simply incoherent; too often, in the words of Chief Justice Rehnquist, it "bristles with hostility to all things religious in public life."

Today, though, the sometimes-nonsense-gurgling Court chose constitutional common sense over hyper-secularism. The Court, in Mitchell v. Helms, by a 6-3 vote, upheld a "longstanding school aid program known as Chapter 2," through which "the Federal Government distributes funds to state and local government agencies, which in turn lend educational materials and equipment [including, importantly, computers and educational software] to public and private schools." The Court rejected the argument that, because many of the students who benefit from Chapter 2 funds attend religious schools, the program "establishes" religion in violation of the First Amendment.

Today's ruling will and should be cheered by all those concerned with the education of children — particularly children in low-income districts — and with the threat the oft-remarked "digital divide" poses to their future. Moreover, the ruling sends what should be an unmistakably clear signal that well-designed school-choice programs — like the Cleveland program currently embroiled in federal-court litigation — are constitutional.

Justice Thomas's plurality opinion — which was joined by Justices Kennedy, Rehnquist, and Scalia — tracks carefully the Court's 1997 Agostini v. Felton decision, in which the Court upheld a program that provided public employees to teach certain special-education classes for disadvantaged children in religious schools. In keeping with Agostini, and the several cases that were the basis for that decision, Justice Thomas emphasized that Chapter 2 does not fund government-sponsored religious "indoctrination." Rather, the program provides aid on a religion-neutral basis, to religious and secular schools alike. The program's neutrality is ensured by the fact that private choice (the choice to attend a religious school), not government decisions, determines whether aid goes to religious schools. Chapter 2 does not "define its recipients by reference to religion," nor does it provide any incentives for students to seek out religious training. (Of course, the same is true, school-choice advocates contend, of educational vouchers).

Justice Thomas rejected the argument that any "direct" — as opposed to "indirect" — aid to religious schools is unconstitutional and in so doing overruled two of the Court's more religion-wary decisions from the 1970s. Again, he emphasized, if the aid is "neutrally available and, before passing through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any 'support of religion.'" (One can almost hear the anti-school-choice arguments crumbling).

Perhaps the most striking portion of Justice Thomas's opinion, the part that should be most praised by all those eager to put behind us the prejudices of the past, is his refusal to permit his analysis to turn on the "pervasively sectarian" character of the schools receiving aid. Indeed, his words shine a light on the "shameful pedigree" of the Court's "pervasively sectarian" method of analysis. His opinion recognizes that "sectarian" has long been, in the words of religious-liberty lawyer Kevin Hasson, little more than a dirty word for someone else's religion — in particular, for Catholicism — and that this nativist concept has for too long soiled our church-state jurisprudence.

Justice Thomas boldly insists that the time when Catholicism was a constitutional strike against religious schools and their students is "one that the Court should regret, and it is thankfully long past." As he recounts, "opposition to aid to 'sectarian' schools . . . arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that 'sectarian' was code for 'Catholic.'" Instead, "the religious nature of a recipient [of government assistance] should not matter to the constitutional analysis, so long as the recipient adequately furthers the government's secular purpose." Moreover, "it is most bizarre that the Court would, as the dissent seemingly does, reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children." This kind of judicial "trolling through a person's or institution's religious beliefs" is "not only unnecessary but offensive."

Justice O'Connor, joined, surprisingly, by Justice Breyer, agreed with Justice Thomas that Chapter 2 is constitutional, though she was unwilling to join Justice Thomas's plurality. In her view, Justice Thomas went too far in rejecting all inquiry into the direct or indirect character of government aid to religious schools. While she agreed that "neutrality is an important reason for upholding government-aid programs against Establishment Clause challenges," she insisted that, in some cases, neutrality alone might not be enough.

Still, the bottom line is resounding: A clear majority of Justices rejected the aggressive separationism of Justice Souter's dissent, and both the plurality and the concurrence suggest strongly that school-choice programs that permit children to choose from among public, private, and religious schools are constitutional. Indeed, Justice O'Connor took pains to emphasize the important distinction between "per-capita school-aid program[s] and a true private-choice program," arguing that the latter type of program is far less likely to pose constitutional difficulties. In a sentence that could well drive a stake into the arguments of anti-voucher activists, she observed that "when government aid supports a school's religious mission only because of independent decisions made by numerous individuals, . . . 'no reasonable observer is likely to draw from the facts . . . an inference that the State itself is endorsing a religious practice or belief.'" In other words, just because a low-income parent in Cleveland decides to use a publicly funded education voucher to attend an inner-city Catholic school, no reasonable citizen, and no reasonable court, should conclude that the government is "establishing" religion.

Last week, when the Supreme Court struck down a Texas high school's pre-football-game prayer, many — including the Chief Justice — complained of the hostility to religion exhibited in Justice Stevens's majority opinion. It seemed that the Court, in its zeal to prevent unconstitutional "establishments" of religion, had gone too far in attempting to sweep religion and religious expression from the public square. But today, in Mitchell, Justice Thomas issued a ringing repudiation of anti-religious nativism and anti-Catholic suspicion. And, in Cleveland, Ohio, thousands of low-income children who are, thanks to that city's school-choice program, receiving a decent education and hope for the future, have reason to thank him.