The Supremes pledge allegiance to God.

The Supremes pledge allegiance to God.

The Supremes pledge allegiance to God.

The law, lawyers, and the court.
June 27 2002 7:08 PM

The Supremes Pledge Allegiance to God.

Praise the Lord and pass the vouchers to the churches!

Illustration by Robert Neubecker

The hysteria over yesterday's 9th Circuit decision to ashcan the Pledge of Allegiance quieted today when the Supreme Court handed down its decision in Zelman v. Simmons-Harris, proclaiming that there's still a place for God, sectarianism, and religious chauvinism in this country. The high court upheld the constitutionality of Cleveland's voucher program—a program that will pour many millions of taxpayer dollars into religious education—because it truly believes that to do otherwise would show antipathy to religion. And God knows, the Constitution didn't intend for that to happen.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Under the guise of promoting "free choice" and state aid "neutrally given," the Supreme Court approved a voucher scheme for a school district in which religious schools hold a virtual monopoly. The justices spend much of this opinion disputing whether this is a real monopoly: Is the monopoly intentional? Are there meaningful "barriers to entry" for secular schools seeking to join the program? But these discussions are beside the point. Because the practical effect of this decision is that the so-called wall between church and state has been demolished in Cleveland and will soon be demolished around the country.

Chief Justice Rehnquist's majority opinion, with which Justices O'Connor, Scalia, Thomas, and Kennedy join, insists from the outset that this case is about free choice: "The State of Ohio has established a pilot program designed to provide educational choices to families." The Cleveland school district has been under state control since a federal district court proclaimed it in "crisis" in 1995. In response, Ohio enacted a pilot scholarship program, targeting mostly poor minority inner-city children, in Grades K-8. The program gives children taxpayer-funded credits allowing them to opt out of the public schools and either: 1) opt into private schools; 2) opt into "community" or charter schools; 3) opt into suburban public schools (all of which declined to participate in the program); or 4) remain in public school and receive a $500 tutorial grant. On paper, this gave the students lots of choices—religious or secular, public or private, urban or suburban, charter or conventional.

In practice, somewhere around 82 percent of the participating schools have a religious affiliation, and an astounding 96.6 percent of the kids in the program chose to opt into religious (principally Catholic) schools. The 6th Circuit Court of Appeals found the program violated the "Establishment Clause" of the First Amendment—the one that bars states from advancing religion. The Supreme Court reversed.

Justice Rehnquist's opinion is rife with the language of free markets, celebrating Cleveland for "enhancing educational options" and guaranteeing "true private choice."

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Corralling decades of Establishment Clause jurisprudence, he finds the voucher program meets both touchstones of state funding for religious education: The aid is neutrally given, and the parochial programs are freely chosen. In general, the majority of the court has come to agree that state funds can't go directly to religious schools, but so long as it's neutrally allocated, parents can freely elect to divert state funds to religious schools. Not only does the court believe this notion of free choice immunizes state funds from unconstitutionally "establishing" a state religion, it also helps a program pass what's come to be known as Justice O'Connor's "reasonable observer" test: So long as parents mediate the funneling of public cash to religious schools, no reasonable observer can possibly think the state is advancing religion.

The only hard question, under the law as laid out above, becomes whether the Cleveland parents really have a meaningful choice. In other words: Is a 97 percent vote for religious schools proof that they're the only game in town, or are these parents all opting for religious schools among a rich panoply of other choices? Justice Rehnquist in the majority opinion, and Justice Souter in the dissent, spend a lot of energy proving (or disproving) that nonreligious options truly exist. And Justice O'Connor nearly knocks herself out waxing eloquent about the many, myriad attractive secular options parents in Cleveland never chose. Souter argues that 97 percent choice of religious schools is no accident: There are structural, financial, and other barriers to parents choosing secular schools. Secular schools cannot afford to offer voucher students the number of desks that parochial schools can. So Cleveland parents are not making free choices from equivalent options. They are making smart choices but choosing only religion. They choose religion, freely, just like we choose to pledge allegiance. What could be wrong with that?

The issue that drives the dissenters—Souter, Breyer, Stevens, and Ginsburg—is not simply that Cleveland offers only this illusion of a free choice, but also that this is not aid that is "neutrally given." Even Justice O'Connor, who has spent years spinning elaborate webs of constitutional tests in establishment cases, admits in her concurrence that this case just isn't like the cases that came before, cases putting publicly funded computers in religious schools. But she is unpersuaded by what Souter decries as the "unprecedented" "scale" of aid now being funneled to religious schools. She quotes Justice Black as saying: "the [First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary."

And that's the catch. None of us wants to the state to be our adversary when it comes to religion. We almost all agree on that point. The tension in these religion cases is between those who believe the Establishment Clause merely bars the government from funding and promoting one single state-sponsored church and those who believe that government efforts to fund or promote any religion are impermissible. Justice Breyer restates the tension in his dissent: "Did [the First Amendment] simply require the government to give each religion an equal chance to introduce religion into the primary schools—a kind of "equal opportunity" approach to the interpretation of the Establishment Clause? Or, did that Clause avoid government favoritism of some religions by insisting upon 'separation'—that the government achieve equal treatment by removing itself from the business of providing religious education for children?"

Is the "wall" between church and state, as conceived by Thomas Jefferson, truly a wall, or a drive-thru, wherein the Constitution is not violated so long as everyone has equal access to what's on the other side and so long as everyone freely chooses to order?

Just because we all seem to want an order of God with our fries—be it in our Pledge of Allegiance or in choice of schools—doesn't mean we should get it. The First Amendment should have kept all of us from this ugly project of wooing the state into financing our particular church or using the state's money to convert others. The whole battle that begins with "my God can beat up your God" should never have been started in this country, and it shouldn't start now simply because we mostly agree that God is a good idea.