Leaving aside constitutional questions of the First Amendment establishment clause and the separation of church and state, vouchers for K through 12 education are bad public policy. It is important to make that essential point, since discussions which focus on the First Amendment aspects of the issue often leave the misimpression that separation of church and state is the fundamental question here. However, even if a law limited the use of vouchers to non-sectarian schools, it would still be rather poor public policy, and would have to be opposed on that grounds.

But since this Supreme Court case focused on the First Amendment aspects of the issue, let us address them. I am not convinced by the ease with which Nathan accepts the Rehnquist argument that one can ignore both the results of the law [over 96% of the vouchers going to religious schools] and the intent of the authors of the legislation, and be concerned only with whether or not the language of the legislation is neutral with respect to religion. On the first count, one must consider the sheer implausibility that such an extraordinary statistical trend is the result of a free choice, absent of any other constraints. We laugh at Castro and the Cuban government when they announce that over 98% of the Cuban population has freely chosen to sign a petition in support of Cuban Communism, because the very lopsided nature of the result indicates the fact that most people felt they had no choice but to sign; why should we accept these sorts of results with equanimity? If the case involved a law which employed race neutral language, yet which in its consequences, sent over 96% of public funds to white Americans, would Nathan be so sublime about ignoring the actual effects of the law?

In choosing to ignore in this case the intent of the framers of the legislation, Rehnquist ignored a well-established tradition of judicial interpretation, one which, in the past, he has extensively relied upon. Indeed, one of the dividing lines between conservative jursiprudence of the Scalia and Rehnquist sort and other schools of judicial interpretation, is the extent to which the Scalias and the Rehnquist rely so heavily, to the point of excluding other considerations, upon the intentions of the framers of the Constitution; other schools of jurisprudence view an analysis of "intentions" as only one of a number of interpretative tools, and only rarely as a dispositive tool. Here, however, Rehnquist does not want to consider intentions, because it is clear from the legislative record that the intentions of the authors of the legislation was to find a way to circumvent the Supreme Court decisions prohibiting the direct provision of government funds to religious, sectarian schools. In other words, the intentions are inconvenient for the result Rehnquist wants, so it is easier to ignore them, even if it goes against the grain of his judicial philosophy. It appears that Nathan has also decided that it is not so troublesome that public funds go to religious, sectarian schools, so he is also prepared to ignore the "intentions" of the Ohio legislature and governor in passing this law.

There is a larger question which neither the Rehnquist opinion nor Nathan's defense of it considers. Education is distinct from other public services, such as housing, health care, and transportation, in a very significant dimension. If the government provided health care vouchers to citizens, who then used them to secure medical treatment from a hospital with a religious affiliation, one would be very hard put to make a case that the expenditure of government funds in this way actually promoted, in any meaningful way, religion. The only possible instance I can think of -- that a religious hospital might refuse to perform abortions -- does not pass muster, since it simply means that a woman seeking an abortion would have to go to another facility. By contrast, the expenditure of public funds on behalf of a religious education clearly involves the promotion and inculcation of that religious world view. Educational vouchers which can be used in religious schools cross a very important and very clear line in the expenditure of public funds on behalf of the advancement of a particular religion.

Such a step violates the social compact which undergirds the authority of the state generally, and its authority to tax its citizens in particular. That social compact requires that we surrender a portion of our property through taxes to the government, so that government may protect our individual rights and promote the common good. With educational vouchers, the property I surrender will now not be used to protect the rights of individual citizens or to promote the common good, but to promote a religious world view with which I may have some very fundamental disagreements. The line between the public and the private, between the state and the church, which is foundational to modern representative democracy as we know it, is being breached.

Leo Casey

Okay, having had coffee now, rather than when I wrote the comment to which Nathan has responded, let me write up views in a fashion that better befits someone who went to law school, albeit
without having ever studied church/state, other than editing my best friend's law review article. . . .

PROPOSED Elements
1) A facially neutral law that has
2) An effect that is either:
a) Strikingly (yeah, fuzzy, but judicial inquiry will have to be fact
intensive and contextual) disproportionate in according its benefits to
one particular religion, or "type" of religion (e.g., monotheism), or
b) Strikingly disproportionate in punishing a particular groups, be
they Santerians (Hialeah decision, ala Yick Wo) or Mormons (polygamy)

would
3) create a rebuttable presumption that the law is too infused with religious concerns to pass constutional muster.

EXAMPLES of what would be struck down: Blue Laws, vouchers, Pledge (if judges don't consider how bad the decision will be for Senate's ability
to stem tide of right wing judicial appointees by the Resident in Chief), Ten Commandmants in schools

EXAMPLES OF WHAT WOULD SURVIVE: social welfare, civil rights, Cold War, actions against (Christian enslaving, emphasis on "enslaving") Sudan

Doesn't the above schematic better promote neutrality than the status quo?

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