Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

What's Unconstitutional About School Choice?

Stephen Lazarus


July 29, 2002

Last month the U.S. Supreme Court upheld the constitutionality of Cleveland's school voucher program by a slim 5-4 majority. That outcome might suggest that both sides made equally compelling arguments. But that is not the case. Indeed, it doesn't take a law degree to see who makes the strongest case for religious liberty for parents, their children, and America's diverse religious organizations. If preventing discrimination and respecting the religious freedom of all citizens really matter, then the minority's three dissenting opinions strike out.

Justice Souter: "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." Citing the Everson case (1947) Justice Souter's opinion would require government to deny funding to all religious schools, even though they perform the same service of education as secular schools. Their crime? Being religious. If they cannot separate their "religious" and "secular" functions, they do not deserve funding in his interpretation of the Constitution.

This is not religious freedom. This is religious discrimination. Such reasoning divides Americans into first- and second-class citizens based on how religious they are. It is also bad law. The Everson case actually upheld the use of public funds to transport children to religious schools in New Jersey. Justice Souter's quote, the foundation of his argument, is from dicta, commentary by Justice Black in Everson, and not part of the binding law of the case. Billions of tax dollars each year go to religious institutions that serve the public, such as colleges, hospitals, and social service groups, as Justice O'Connor notes. The government even supports priests, ministers and rabbis in the military as chaplains. Strike one.

Justice Stevens: The government can't fund a child's education at a religious school, because that's indoctrination, not education. Leaving aside the inherent bigotry of the Justice's assumption about the quality of religious education, why should government-run schools that promote secular American values be favored in law over schools that reflect Christian or Jewish commitments? Tax-paying citizens who choose religious schools are not "un-American." They are educating their children according to their convictions that the First Amendment protects. Their children are no more indoctrinated in religious schools than are children who attend secular schools that inculcate secular values. If the government's job is to be neutral and to protect the religious freedom of all citizens, then Justice Stevens should honor the decisions of all parents, and not grant government the power to declare the choices of some illegitimate. Strike two.

Justice Breyer: Funding for religious schools will be "divisive" and "potentially harmful to the Nation's social fabric." According to Justice Breyer, unless America maintains a wall of separation of mythological proportions, the country will devour itself in religious and political strife. At no point, however, does he provide any evidence that Cleveland's voucher program has had this effect. He even admits that "Great Britain and France have in the past reconciled religious school funding and religious freedom without creating serious strife." America is even more religiously diverse, but still he insists (logic aside) that we must fund only one secular system. Strike three.

School choice is not only about rescuing kids from failing schools. There is even more at stake. The underlying message of all three dissents is that religion produces intolerance and endangers democracy, so it must be confined to private life. Fortunately, these opinions did not win the day. But they reveal a serious threat to religious liberty. To "let freedom ring," America needs a new paradigm that does justice to people of all faiths in the public square. It cannot come too soon.

—Stephen Lazarus, Senior Policy Associate
     Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”