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June 27, 2002

In Praise of Vouchers

In upholding the constitutionality of school vouchers going to religious schools, the Supreme Court made the right decision. I may be a tiny minority -- although I think this position will look more obvious over time -- of combining that view with approving the 9th Circuit yesterday knocking out "under God" from the Pledge, but I think they go together.
...Public schools inevitably have the air of coercion; heck, every kid feels it and Matt Groening in Life in Hell documented it with precision. A pledge extolling God is a pretty blatant ideological statement by the government, but then so is telling parents that their faith is too tainted to be mixed with proper education.
...If parents want their kids bathed in religiously-dripped patriotism, having the option of vouchers is not a bad compromise. And since atheist parents are free to band together in schools affirming secular nationalism or no nationalism at all, such vouchers can't really be considered an endorsement of any particular religion.
...Not that I support most voucher systems in practice, since they are usually underfunded and designed to do little to really help poor kids looking for alternatives. But the Supreme Court decision didn't mandate vouchers-- they just said that we are democratically allowed to vote for them, or not vote for them. That democratic principle seems the best one in this area.

Posted by Nathan at June 27, 2002 11:34 AM


However, in Clevealnd, legislators knew that practically all recipients of the governmental largesse would be mainstream religious. That's a serious problem: at some level, known effect of aiding religion needs to be treated as intentionally aiding religion, and in Ohio/Cleveland, that level was exceeded. Cf. Hialeah/Santeria case.

Posted by: Jeff at June 27, 2002 10:10 PM

I don't buy an "intent" standard for establishment cases; it is a dangerous game where judges would be trying to read the collective mind of a legislature.

And so what if the practical effect TODAY is to aid Catholic schools; there is nothing in the law that prevents other religions or no-religion schools from taking advantage of the law. That effect is neutral, which is key. Nothing in the law is saying that Catholicism is necessarily better than other religions; at most there is indication that the legislators thought Catholic schools were better than the public schools, but that intent could be (and in many cases is) a purely secular evaluation of te quality of the schools. So if that secular evaluation of the quality of Catholic schools was the "intent", does that mean it therefore passes muster?

Posted by: Nathan at June 27, 2002 10:36 PM

Re specific q: the known primary (and as an antitrust atty familiar with "entry barriers," I'd say for the foreseeable next 5 years) beneficiary were schools that teach religion. The legislature, for whatever reasons (neocon thought, theocratic impulse, desire to appear to be doing something, whatever), passed a law that constitutes a massive infusion of fungible resources to religion. That's bad. A tougher case would be an area where there were a significant number of private, secular schools willing to participate, but this case wasn't it.

You oppose Washington v. Davis, right? And ought not the standard to discern intent be LOWER in Establishment Clause cases than Equal Protection, considering that arguably the fear of inequality is more expressly stated in the language of the former than the latter?

What about Blue Laws, another bad SCOTUS decision? There are few pro-religion decisions which cannot be cloaked within neutrality:

1) the Bible *IS* the most important work of Western literature ever, for better or for worse;
2) the 10 Commandmants *DO* express a view of ethics;
3) laws against sodomy *DO* have a historical, non-Christian basis;
4) laws proscribing gay marriage or polygamy. . . .

Etc. . . . There is no political agenda of religion that could not be written to appear facially non-religious.

Posted by: Jeff at June 28, 2002 07:56 AM

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