A Supreme Court Ruling Bodes Well for School Vouchers

by Richard W. Garnett

On Monday the U.S. Supreme Court reaffirmed that the First Amendment does not require— in fact, it does not permit — government to discriminate against religious persons, organizations and ideas. No doubt some will complain that the court’s 6-3 decision in Good News Bible Club v. Milford, permitting a Christian youth group to meet after school hours in public-school facilities, somehow lowers “the wall of separation” between church and state. It does not. Instead, Justice Clarence Thomas’s clear and well-reasoned majority opinion honors our constitutional traditions of religious freedom and pluralism by welcoming, on equal terms, the faithful to the public square.p. In 1992, Milford, N.Y., adopted a “Community Use Policy” that permits town residents to use public-school facilities for “social, civic and recreational meetings. . . pertaining to the welfare of the community.” Policies like this are both commendable and common. They strengthen our communities by acknowledging and supporting the private clubs, groups and associations that are so important in a diverse and democratic society.p. The Good News Bible Club is a community-based Christian youth organization. Its purpose is to instruct elementary-school children in family values, and its activities are informed by its members’ faith. The children sing songs, play games, share verses from scripture, and pray. But when the club asked for permission to use the Milford school’s cafeteria for one hour each week after school, the request was denied. The reason — Government officials determined that the club’s expression was too religious, and its activities too much like “worship.”p. Relying on a long line of Supreme Court precedent, the Good News Club filed a federal lawsuit arguing that the First Amendment’s free-speech guarantee does not allow Milford to exclude the club simply because it teaches morals and values from a Christian perspective. Our Constitution, the club insisted, does not permit governments to discriminate against groups because of the “viewpoints” they espouse. The Supreme Court agreed.p. In the 1993 Lamb’s Chapel decision, for example, the court had ruled that a school district violated the Constitution when it excluded a private group from its facilities simply because the group wanted to show a film that discussed family values from a religious viewpoint. What was true in that case, Justice Thomas reasoned, was true here, too. Because Milford permits non-religious groups to use school grounds to “promote the moral and character development of children,” it cannot exclude religious groups like the Good News Club from doing the same thing.p. The court also rejected the argument that the constitutional prohibition on established religion required Milford to exclude the Good News Club, and reaffirmed that the equal treatment of religion is not the establishment of religion. For Milford to treat the club like other groups — no better, no worse — is not to coerce children to engage in religious activities, but rather to communicate a respect for religious pluralism and diversity of viewpoints.p. The Good News decision is welcome, and noteworthy, for at least two reasons. First, Justice Thomas’s opinion continues the court’s gradual and much-needed rehabilitation of its church-state case law. Last year, in Mitchell v. Helms, the court permitted government to provide secular educational assistance to needy children attending parochial schools, and the decision in Good News continues the trend away from the misguided suspicion of religious belief and expression that for too long distracted the court. In particular, it is now clear that viewpoint-based discrimination against religious expression is impermissible in the elementary-school context no less than in colleges and high schools.p. Second, the decision provides further support for the constitutionality of important reforms like school vouchers and charitable choice. While reasonable people can and do disagree about the effectiveness of such proposals, the court’s current case law makes it clear that the First Amendment permits religious schools and faith-based service providers to participate in our shared efforts for educational opportunity and empowerment and against poverty and addiction.p. The court’s decision is a reminder that religious speech is not second-class speech. Our Constitution protects religious freedom both by telling governments that they may not establish religion and by promising citizens that they need not check their religious beliefs at the entrance of the public square.

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