May
20, 2003, 9:45 a.m.
Deciding the Future of Choice
Supreme Court
set to issue a landmark ruling for religious schools.
By Richard
W. Garnett
he
other shoe is about to drop in the voucher wars. After ruling last year,
in the Zelman
case, that communities and governments are not required by
the Establishment Clause to exclude religious schools from their school-choice
experiments, the United States Supreme Court has now agreed to decide
whether such exclusion is permitted by the Constitution. Under
the leadership of Chief Justice Rehnquist, the Court has made it increasingly
clear that the First Amendment forbids "viewpoint discrimination"
in the administration of public-welfare programs, and also that religious
believers and institutions may not be singled out for special disadvantages
and burdens. In Davey
v. Locke, though, the justices will confront provisions of
Washington state law that appear to do just that.
It is safe to
say that, in the end, the school-voucher ruling in Zelman came as
no surprise, either to those who welcomed it, or to those for whom the decision
is another step down a dangerously misguided doctrinal path. But remember,
the Court in Zelman had no occasion to decide whether religious schools
must be permitted to participate, on an equal footing, in choice
programs — only that they could. Thus, Zelman was not,
nor did it pretend to be, the end of our public conversations about education
reform, public funds, and religious schools. Indeed, one of the virtues
of Chief Justice Rehnquist's opinion in the case is precisely that it anticipates
and invites further proceedings, in the halls of our legislatures and in
the courts of public opinion, on these matters. After all, many believe
that school choice is a crucial component of religious freedom and social
justice; others fear that voucher programs could harm low-income and at-risk
students, or that private and religious education could undermine shared
values and social cohesion generally. The point is, Zelman did not
purport high-handedly to cut short this discussion; rather — like the
Court's decision six years ago in Glucksberg,
the assisted-suicide case — it "permits this debate to continue,
as it should in a democratic society."
And so it goes. Last
summer, the ink was barely dry on the Zelman slip opinions when
commentators, scholars, litigators, and activists took to the newspapers,
airwaves, and e-mail listservs to inform us that the battles over school
choice are far from over. In particular, it was widely noted that formidable
legal obstacles remain to choice-based experiments that permit beneficiaries
to attend religious schools. It turns out that the constitutions of nearly
40 states contain provisions that speak more directly — and, in many
cases, more restrictively — than does the First Amendment to the
flow of public funds to religious schools. Given these provisions, many
insisted, school-voucher proponents still had a long way to go.
Which brings us to
Davey v. Locke. Joshua Davey was a student at Northwest
College, a Christian college in the State of Washington. Joshua was awarded,
but then denied, a state-funded "Promise Scholarship" for one
simple reason: He wanted to major in "pastoral studies." However,
Washington law denies Promise Scholarships to otherwise-qualified students
if they elect to "pursu[e] a degree in theology." What's more,
the Washington constitution, like the constitutions of many other states,
includes a rigid no-aid provision which states that "[n]o public
money or property shall be appropriated for or applied to any religious
worship, exercise or instruction, or the support of any religious establishment[.]"
And so, the state insisted, even if the federal Establishment Clause permits
students to use publicly funded scholarship dollars to study theology
(or anything else) at a religious college, Washington is free to take
a more strict-separationist path.
Now, at first blush,
Davey might seem like just another "federalism" case,
and Washington's no-aid provision might look like just another example
of devolution in action. And didn't Justice Brandeis once note —
in a passage dear to the heart of localists everywhere — that "it
is one of the happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and try novel
social and economic experiments without risk to the rest of the country"?
So, why shouldn't the State of Washington be allowed to part company with
the Supreme Court, and provide its citizens with greater protection from
religious establishments and entangling church-state alliances?
Not so fast. "Novel
social and economic experiments" are well and good, but it is the
Constitution that is the "supreme Law of the Land." State constitutions
may neither authorize nor permit that which the Constitution of the United
States forbids. Accordingly, the United States Court of Appeals for the
Ninth Circuit — a court that few would call "conservative,"
or insufficiently protective of the separation of church and state —
ruled that, by denying "Promise Scholarships," Washington law
discriminated on the basis of religion, and that this discrimination was
not justified by any valid, yet alone compelling, state interest. That
is, Washington's apparent desire to regulate citizens' religious choices,
in ways not required by the Establishment Clause, provided no warrant
for that state's laws that single out Joshua Davey's educational choices
for special disapproval.
Scholars, courts,
and litigators are increasingly aware that the roots of anti-aid provisions
— sometimes called "Blaine Amendments" — like Washington's
are inextricably linked to the virulent anti-Catholicism of the late-19th
century. Indeed, as Professor Philip Hamburger has masterfully demonstrated,
it was hostility to the perceived anti-democratic and authoritarian teachings
of the Catholic Church, and fears that Catholic schools were failing to
inculcate American values and form good American citizens, that for more
than a century provided the content for the notion of "the separation
of church and state." It was not that long ago that a former Klansman,
Justice Hugo Black, could hint darkly, in the pages of the United States
Reports, about threats to the "citadels of liberty" from
Catholic "propagandists" bent on "complete domination and
supremacy of their particular brand of religion." And, it was not
that long ago that Justice Douglas, citing notorious anti-Catholic tracts
for support, could warn that the purpose of Catholic schools was "not
so much to educate, but to indoctrinate and train, not to teach Scripture
truths and Americanism, but to make loyal Roman Catholics." To be
sure, these are not likely the views of government officials in Washington
today. Still, it is sentiments like these, and not the views of Madison
and Jefferson, that were the basis for laws like the Washington provisions
at issue in Davey.
In all likelihood,
the Court will affirm the Ninth Circuit's decision, relying on straightforward
principles of First Amendment doctrine to hold that Washington may not
deny educational aid to an otherwise eligible student, simply because
that student elects to study theology. Such a ruling would not require
the justices to wade into the fever swamps of Civil War-era Know Nothingism.
But maybe they should. It remains the fact that the no-aid provision of
Washington's Constitution, any many other provisions like it, are continuing
monuments to the claim, which once held sway in the salons of elite opinion,
that Catholics, to the extent they remain Catholics, are suspect as Americans.
And, as Justice Thomas wrote, a few years ago in Mitchell
v. Helms, "[t]his doctrine, born of bigotry, should be
buried now."
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he
other shoe is about to drop in the voucher wars. After ruling last year,
in the 
