Zelman v. Simmons-Harris

[A18]

Decided June 27, 2002

Ohio established a school voucher program in order to allow K-12 students to attend private schools. Religious schools were neither required nor prohibited, and there was no favoritism towards a particular religion over another.

Is this a violation of the First Amendment's Establishment Clause?

[Emsworth]

The Court was correct: Ohio's school voucher program did not violate the establishment clause and the Fourteenth Amendment. The establishment clause does not require hostility towards religion; in fact, such hostility is precluded by the free exercise clause. Ohio's neutral stance -- neither favoring nor disfavoring any particular religion, or even religion in general -- is perfectly constitutional.

I have read a few of the opinions. Justice Souter (joined by Stevens, Ginsburg, and Breyer) argues that the voucher program is unconstitutional, because Everson v. Board of Education requires, "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." However, he ignores another important part of Everson: "[The First] Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary." And these were the words not of a conservative jurist, but of Hugo Black.

Even then, it may be worthwhile to consider the question of whether taxpayer funds are being used to support religious activities or institutions. Everson only requires that a state should not levy taxes specifically for the benefit of religious institutions; that would certainly be unconstitutional. However, at the same time, religious institutions should not be denied the general benefits given to all of society. Under Justice Souter's argument, for example, the traffic police should not protect a road leading to a church, because the protection costs taxpayer money and benefits a religious institution. Thus, I believe that a central holding of Everson--that taxes should not be imposed for the benefit of religion--applies only to specific benefits for religious institutions, not general ones granted irrespective of religious affiliation.

Furthermore, in the case cited by Justice Souter, the Supreme Court actually upheld a New Jersey state law under which parents would be compensated for the costs of transportation to private schools (whether secular or parochial). This was on the grounds that the law applied "regardless of [the children's] religion." The First Amendment near-absolutists Hugo Black, William O. Douglas agreed. I think that Souter and the rest of the liberal wing of the Court were merely picking and choosing a few parts of Everson they found most convenient, and ignored the parts of that case which they did not like.

I also object to Justice Thomas' concurrence. He argues that "while the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters." However, neither the establishment clause nor any other clause of the first Eight Amendments applies to the Federal Government alone. On the contrary, the Fourteenth Amendment incorporates the entirety of the first eight Amendments. Thus, I cannot accept Justice Thomas' decision to only apply bits and pieces of the Bill of Rights that he agrees with, but not anything else, on "federalism" grounds.

[CARLHAYDEN]

A very well thought out post.

I'm a little suprised as Thomas.

[opebo]

Clearly unconstitutional.