Dateline: 06/27/02

In a 5-4 decision, the U.S. Supreme Court has ruled that private school tuition voucher programs are constitutional and do not violate the separation of church and state provision of the First Amendment.

The court's landmark church and state decision came only a day after a San Francisco circuit court of appeals ruled the Pledge of Allegiance unconstitutional due to its inclusion of the phrase "under God." [See: Pledge of Allegiance Declared Unconstitutional]

Today's Supreme Court decision in the case of Zelman v. Simmons-Harris, overturned an appeals court ruling that had found an inner-city Cleveland, Ohio school voucher program to be unconstitutional. Opponents of the program based their successful lower court challenge on the fact that over 95 percent of the tax-supported financial assistance vouchers issued had been used to pay up to $2,500 toward tuition for attendance at Catholic or other religious schools.

The Majority Said
The court's majority opinion, written by Chief Justice William Rehnquist and supported by justices O'Connor, Scalia, Kennedy and Thomas, found the Cleveland program constitutional because it did not place the government in the position of sponsoring religious indoctrination.

"Because the [Cleveland voucher] program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion," wrote Justice Rehnquist, who continued, "This Court ’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice."

Finding participation in the voucher program to be based on "true private choice," Rehnquist writes, "Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits."

The Minority Said
Justices Stevens, Souter, Breyer and Ginsburg wrote dissenting opinions. In writing the dissent, Justice Stevens found fault with the reasoning of the majority. "I am convinced that the Court ’s decision is profoundly misguided," he wrote, concluding, "Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy."

In his dissenting remarks, Justice Souter referred to the Supreme Court's 1947 decision in the case of Everson v.Board of Ed. of Ewing, a case that also dealt with public funding of religious schools. In the Everson case, noted Justice Souter, the court had found "No tax in any amount, large or small, can be levied to support any religious activities or institutions, what- ever they may be called, or whatever form they may adopt to teach or practice religion."

"How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot," wrote Souter.

The courts entire 98-page decision in the school voucher case, Zelman v. Simmons-Harris, can be viewed or downloaded by clicking here. The decision includes a syllabus of the case, as well as both the majority and dissenting opinions.