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June 28, 2002

Hauser v. Vouchers

Jeff Hauser has a number of points against the voucher decision:

"in Cleveland, legislators knew that practically all recipients of the governmental largesse would be mainstream religious...at some level, known effect of aiding religion needs to be treated as intentionally aiding 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...You oppose Washington v. Davis, right? And ought not the standard to discern intent be LOWER in Establishment Clause cases than Equal Protection."

Hauser notes that almost any law-- Blue laws, anti-gay laws, etc. - can have seemingly neutral reasons, so judges must look at intent.

I'm sorry, but I just don't buy any "intent" standard for establishment cases; it is a dangerous game where judges would be trying to read the collective mind of a legislature. And who cares 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?

re: Washington v. Davis (the case where the Supreme Court said that policies with intentionally racist results but facially neutral rules were constitutional), I first don't think that the government has to be more hostile to religion than racism. We like many religious impulses, such as those that promote charity-- should welfare spending be declared unconstitutional as reflecting the Sermon on the Mount's Christian intolerance? In a country where over 90% of people believe in God, policy is infused with religious intent. So the only question is whether a policy too clearly elevates one religion over others. Saying "under God" is a pretty clear monotheistic statement; giving vouchers to Buddhists, atheists, or Catholics does not, whatever the short-term practical results (and it's worth emphasizing that the availability of vouchers will likely change that practical reality over time).

Posted by Nathan at June 28, 2002 09:18 AM


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

Posted by: LeoCasey at June 28, 2002 10:54 AM

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. . . .

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)

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?

Posted by: Jeff at June 29, 2002 09:44 AM

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