Rule of Law: Future church-state battle looms

by Richard Garnett

Mr. Garnett is associate professor of law at Notre Dame Law School. p. In constitutional law, as in comedy, timing is everything.

Last week, just before the Supreme Court ruled on the constitutionality of Cleveland’s school choice program, an appellate court in California shocked even the Senate with its decision that the Pledge of Allegiance violates the First Amendment. In light of the Supreme Court’s determination that the Ohio vouchers do not “establish” religion, one would be right to wonder about the law governing church-state relations. How could the same few words of the Constitution require both these results?

Although politicians from across the spectrum denounced the Pledge ruling as wrongheaded, leading precedents provide support for the result. So our outrage might have been better directed at those Supreme Court precedents than at two appellate judges in California.

The reaction to Zelman v. Simmons-Harris, the school-choice case, was, in some quarters, nearly as overwrought as the outcry over the Pledge decision. Editorial pages and activists echoed Justice John Paul Stevens’ dissent, and warned that yet another crucial brick had been removed from the traditional “wall of separation” between church and state.

In fact, as Justice Sandra Day O’Connor said in her concurring opinion, the decision was neither innovative nor radical. Chief Justice William Rehnquist’s majority opinion, confirming that the Constitution permits communities to experiment with choice-based education reforms, was only the reasonable application of a line of cases dealing with educational-assistance programs.

In what will be regarded as a landmark of his distinguished tenure on the court, the chief justice emphasized themes that he first sounded in 1983, in Mueller v. Allen: The Ohio school-choice program is “entirely neutral with respect to religion,” and it permits its beneficiaries “to exercise genuine choice among options public and private.” In other words, the program accords equal treatment, not preference, to religious schools and the parents who choose them. Such equal treatment of religion is not, in the education-reform context, an “establishment” of religion.

Judge Ferdinand Fernandez’s dissent in the Pledge case advanced similar arguments. There is nothing unconstitutional about the recitation of the Pledge in school, he reasoned, because the purpose of the Establishment Clause is not “to drive religious expression out of public thought,” but rather to guarantee “neutrality,” and “avoid discrimination.”

The dissenters in Zelman, led by Justices Stephen Breyer and David Souter, insisted that the Constitution demands strict separation, not equal treatment of religion, as the means of achieving “social concord.” Justice Stevens, writing separately, sounded similar concerns, asserting that the ruling would “increase the risk of religious strife and weaken the foundation of our democracy.” But these arguments are unfounded. The court was on solid legal ground in rejecting a theory that would have had the effect of kicking thousands of inner-city children out of the school-choice lifeboat.

Of course, even the needs of the disadvantaged would not excuse a constitutional violation. But there is no violation here. Ohio’s legislators have elected to subsidize education, not religion; it is parents, not the state, who decide where that education should take place. Such a decision no more violates the First Amendment that does an undergraduate’s decision to apply federally subsidized student loans toward tuition at Notre Dame or Brigham Young University.

Do these cases tell us anything about the next wave of church-state disputes? They do. The next round of battles will center on the legal distinction between the “sphere of government” and “civil society.” The Establishment Clause, remember, speaks to what the government does — it is government that may not “establish” religion. But the First Amendment does nothing to limit, and in fact protects, the right of citizens to proclaim religious beliefs in the public square.

The separation of church and state does not mean that religious expression is constitutionally condemned to a privatized ghetto; it simply means that it is not the business of government. But, as the Pledge case and other recent decisions involving religious after-school clubs remind us, the line between state-sponsored belief and private expression in the public forum is not always easy to identify.

We can also expect cases dealing with the autonomy of religious institutions, and involving conflicts between the nondiscrimination norms that we have imposed on government and the doctrines of faith. How should a constitutional democracy, committed to equal treatment, religious freedom, and free expression, respond to groups that practice what government regards as discrimination?

Justice Souter’s dissent foreshadowed these conflicts when he warned that religious schools which accept “public” funds in the form of vouchers should not be surprised when those funds come with secularizing regulatory strings attached. The next education-reform fight, then, will not be about whether the Constitution allows religious schools to participate in voucher plans, but about whether they will be made to compromise their mission if they do.

Recall the recent Boy Scouts case, where a divided court affirmed the right of a private group to determine its own values, and to hire and fire on the basis of those values. Remember, also, that many of President Bush’s faith-based initiatives stalled in Congress over the question whether religious social-service providers would be required to tone down their evangelization.

These are the kinds of church-state battles likely to preoccupy the courts in the next few years.

July 1, 2002

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