Vouchers are back before the U.S. Supreme Court, and this time the court has the opportunity to demolish whatever it left standing of the wall separating church and state.
Last year, by a 5-4 vote, the U.S. Supreme Court delivered a punch in the stomach to anyone who cares about keeping taxpayers from paying for proselytizing, by upholding a school voucher program in Cleveland. The program gave tax money to parents who chose to send their children to private sectarian schools, among other options. Now the court has taken a second voucher case, Locke vs. Davey, to be heard next term, and the stakes are even higher - much higher.
As Rob Boston, a spokesman at the public interest group Americans United for the Separation of Church and State, told me, the Davey case flew under the radar until making it to the high court docket. But the case has the potential to shift the legal ground on church-state separation so tectonically that what was once patently prohibited may now be required.
While the court in the Cleveland school voucher case said the Constitution wasn't violated when vouchers were used for religious schooling, the Davey case asks the court to consider whether states have a constitutional obligation to provide scholarships for religious training when offering similar aid for other types of educational pursuits.
The case arose after Joshua Davey, a student at the sectarian Northwest College in Kirkland, Wash., won a state-sponsored "Promise Scholarship" in 1999. He was told he could use the $1,125 at any accredited college in the state and for any course of study except theology.
Davey, however, was pursuing a major in pastoral ministries. So, with the help of the American Center for Law and Justice, Pat Robertson's legal arm, Davey challenged the stricture as a violation of the First Amendment guarantees of religious freedom.
Astoundingly, the 9th Circuit U.S. Court of Appeals bought it. In a 2-to-1 decision, the court sided with Davey, saying the Promise Scholarship was a "fiscal forum" and Washington could not constitutionally discriminate against religion in distributing the largess.
The Supreme Court has been inching toward this view of "government neutrality toward religion" for years now. If the court upholds the lower court it could create a new imperative, directing the states to open all programs and benefits to religious groups. For Bush, this would be manna from heaven. His vision where all welfare mothers and drug addicts are led to Jesus at government expense could come into full flower. States could now be required to invite religiously driven social service programs into all contracting bids, even if the programs discriminate in hiring on the basis of religion - precisely what Bush has been trying to push through executive order.
The ruling in Davey could spell the end of state constitutional provisions known as Blaine Amendments. These amendments exist in 37 states, including Florida, and they go far beyond the First Amendment's Establishment Clause in explicitly barring the use of state funds to assist religious schools and institutions. Though many of these provisions were born of a disturbing history - James Blaine was a member of Congress after the Civil War and an anti-Catholic crusader with the purpose to keep state funds from flowing into Catholic parochial schools - his handiwork has ironically, over time, been a boon to tolerance and pluralism.
Our nation has avoided the violent fissures of places like Lebanon and Ireland precisely because we have kept the government from becoming an instrument of extortion for the benefit of religion. Blaine's purpose may have been to exploit anti-Catholic feelings for his own political gain (he ran for president three times), but the results have been a wildly successful social experiment in peaceful coexistence. (One has to wonder just how sincere Blaine was in his anti-Catholic biases. Apparently, his mother was Catholic and his daughters went to a Catholic boarding school.)
Some might say that allowing Davey to pursue a ministerial degree with public funds is really no different than Pell grants that can be used to study theology. Putting aside whether the government at any level should be helping to fill the minister corps, the issue in Davey case is whether states can adopt more explicit and far-reaching restrictions on church-state entanglement than that found in the federal Constitution.
As Boston of Americans United says, the fight over vouchers now is joined at the state level, relying on the stricter language of the state Constitutions. If the Davey case is upheld, then those provisions in 37 states will be swept aside and a new constitutional order will be adopted - one where state governments are required to underwrite religion to the same degree they do other entities in the private sector.
It would be a sea change that would wash away many more bricks from our enlightened and valuable wall.
