City Journal

Richard E. Morgan
Yes, Vouchers Are Constitutional
Nothing in the U.S. Constitution or the state constitutions prohibits this highly popular school reform—as the current Supreme Court might soon agree.
Autumn 1998

It has become an American reflex over the past generation for advocates who lose in the political arena to try to kill in the courts what they can no longer defeat in the legislature. That is happening with the school voucher issue today. A recent national poll shows parents in favor of vouchers 82 to 13 percent: the majority of Americans with children in school seem to understand that only competition from outside the dysfunctional, union-dominated public school system can bring about the sweeping educational reforms the nation needs. Black parents, whose children are disproportionally stuck in educationally bankrupt inner-city schools, support vouchers even more strongly, with 84 percent in favor. But teachers' unions and their political allies, as they see their support ebb away, reply: Too bad; school vouchers are unconstitutional, so the issue is moot. Since many families would use them to send their children to Catholic and other church-related schools, vouchers violate the "separation of church and state."

Are these opponents of vouchers correct? Is there anything in the Constitution of the United States, or in the constitutions of the several states, that forbids such programs?

At the level of the federal Constitution, the answer should certainly be no. The phrase "separation of church and state" does not occur in the document (or in any of the 13 original state constitutions). The clause of the federal Constitution that is widely, but incorrectly, held to mandate "separation" is that part of Amendment One that forbids Congress to make any law "respecting an establishment of religion." The original proposal, introduced by James Madison, simply provided that a "national religion" not be "established." While the documentary record of the First Congress is too fragmentary to allow us to know precisely what the amendment's authors intended by the change they wrought in Madison's language, it is safe to say that the prohibition against laws "respecting an establishment of religion" embodied Madison's original aim (with which no one really disagreed) of forbidding Congress from establishing a national religion or granting any sect or denomination preferences that might tend in that direction.

One other thing is known for sure: the provision as finally proposed by Congress and ratified by the states was intended to prevent the central government from interfering in the arrangements worked out within the several states with respect to religion and the public order. After all, the primary reason the First Congress was proposing amendments was to satisfy the large multitude who worried that the new Constitution left the states too exposed to central government meddling. And, of course, half the states had some form of religious establishment in 1790—and their congressmen and senators were determined to protect those practices.

Connecticut congressman Benjamin Huntington, for instance, was quick to remind the House that in most of New England the support of ministers and the "expense of building meeting houses" were "things regulated bye laws." And while Huntington understood that the "gentleman from Virginia" did not intend the proposed amendment to preclude such arrangements, he was worried that "others might find it convenient to put another construction on it," and he wanted it clear that the provision was not meant to satisfy "those who professed no religion at all."

In sum, the establishment clause was meant to allow the states to continue to chart their own courses in church-state relations. At the national level, it precluded both an established church and sectarian favoritism, but it did not embody a policy of indifference or hostility to religion, much less a ban on all cooperative arrangements between the central government and religious institutions. As Robert A. Goldwin puts it in his new study of the framing of the amendments that became the Bill of Rights: "There is solid evidence that this Congress looked favorably on a general sort of government aid to religion, so long as it was not preferential or discriminatory."

Of course, there were those in the early Republic who did favor radical separation. In 1802 Thomas Jefferson broke with the practice of issuing Thanksgiving Day proclamations, which Washington had established and which Jefferson's successors immediately resumed. A small storm of criticism of Jefferson's administration resulted, and in a scramble to establish some cover, the president addressed a letter to the Danbury, Connecticut, Baptist Association, arguing that his action was not purely personal but was compelled by the Constitution. It was here he hatched his ill-founded metaphor asserting that the First Amendment erected a "wall of separation" between church and state. Along similar lines, in the 1830s, Kentucky senator Richard ("Rumpsey-Dumpsey") Johnson led a quixotic crusade seeking Sunday mail delivery on the grounds that its omission constituted an establishment of religion.

But such radically separationist ideas were never mainstream. For over a century and half after the ratification of the First Amendment, the states charted their own courses with respect to religion and the public order. During the nineteenth century, those with established churches gradually disestablished them, though as late as 1902 New Hampshire's Constitution empowered the Legislature to authorize towns to provide "public Protestant teachers of piety, religion and morality." As established churches receded into the past, a variety of cooperative, non-preferential arrangements between state and local governments and religious institutions flourished. In New York, for instance, the Children's Law of 1875 welcomed sectarian child-care institutions as part of a state-funded system of institutional care. In some poor, predominantly Catholic, school districts from Maine to Missouri (where supporting a separate public school for the few non-Catholic children would have been impractical), parochial schools eliminated religious instruction during most of the school day, accepted all children from the community without regard to religion, and received some public support for maintenance and for teachers' compensation. In New York, this arrangement, called the Poughkeepsie Plan, persisted until it was targeted for elimination by politically powerful nativist forces late in the nineteenth century.

At the national level, wherever the federal government directly provided for local governance and social services—in the territories, the military, the Indian reservations, and the District of Columbia—it followed a similar course without constitutional embarrassment. For example, the same Congress that proposed the First Amendment to the states reenacted the Northwest Ordinance, which provided not only for freedom of religion in the territories but also for the "encouragement of religion, and education, and schools," by (among other things) setting land aside "for the purposes of religion." And in 1899 the Supreme Court approved a congressional appropriation to pay for an addition to a Roman Catholic hospital in Washington.

So where does the constitutional argument against voucher plans come from? The short answer is that, as with so much contemporary mischief, it comes from the Supreme Court—and especially, the Warren Court of the 1960s.

The developments of the sixties and seventies have their prelude in a famous 1947 Supreme Court decision called Everson v. Board of Education of Ewing, New Jersey. New Jersey had authorized local school boards to reimburse parents for the fares their children paid on regular bus lines getting to and from school—whether public or parochial school. One Arch A. Everson challenged the expenditure as violating the establishment clause. Everson was a member of the Order of United American Mechanics, a nativist organization dating from the Know-Nothing movement of the 1850s and dedicated to the exclusion of Roman Catholic institutions from American public life. The Order filed an amicus curiae brief in support of Everson's position. Justice Hugo Black wrote the opinion of the Court, and from the vantage point of 50 years later, it stands out as a shockingly poor piece of work.

The most fundamental issue the case presented was one of federalism, and here, it might have seemed, Everson faced an insurmountable barrier. For the Court to find in his favor, it would have to undo a century and a half of precedent and hold that the establishment clause applied to acts of the states. On what argument could the Court do that? Justice Black solved this problem by ignoring it; without any argument at all, he simply asserted that the states were bound by the prohibition against Congress making laws "respecting an establishment of religion."

It is difficult to overstate the seriousness of this blunder. A constitutional provision intended, in large measure, to shield the states from federal meddling with the choices they made about relations between government and religious institutions was turned into a potential engine of federal power against them. Black could do this because he did not understand the establishment clause, as both its framers and modern scholarship understand it, as serving multiple but limited purposes, one of which was to protect the federal structure of the American union. He saw it, rather, as a blunt mandate of strict separation, and he apparently concluded that, if it was important enough to have been put in the Bill of Rights as a rule for the national government, it was important enough to impose on the states as part of that "due process of law" required by the Fourteenth Amendment. His opinion contains no references to the framing or ratification of the First Amendment or to how the establishment clause was understood by any of the great nineteenth-century constitutional commentators. In 1833, for example, Justice Joseph Story had written that "the whole power over the subject of religion is left entirely to the state governments," and in 1883, Judge Thomas Cooley had explained that "a law respecting an establishment of religion," as the First Amendment puts it, would be one that would "effect a union of Church and State, or . . . establish preferences in law in favor of any one religious persuasion or mode of worship."

Instead of resting upon long-settled legal understandings, Black's opinion pivoted on Jefferson's idiosyncratic letter to the Danbury Baptists, with its naked assertion that the establishment clause had "erected a wall of separation between church and state"—a metaphor that misrepresented our constitutional history but captured perfectly the separationist fundamentalism to which the justice had been exposed in his youth in Alabama, as a member of another nativist organization—the Ku Klux Klan.

Though Black's mangling of the establishment clause would draw plenty of fire in the future, it drew little at the time, probably because Black emerged from the Everson case looking like a moderate. For all his primitive separationism, he upheld the New Jersey law: he simply did not see returning the nickels and dimes to New Jersey parents as aid to the parochial schools. In his view, the state was aiding the schoolchildren themselves, providing for their safety—just as it did in providing smallpox vaccinations, which no one doubted could go to parochial as well as public school pupils.

In the wake of Everson, those favoring the traditional American policy of accommodation and cooperation between government and church-related institutions hoped that the actual, commonsensical result Black had reached might prove more important than the radically separationist part of his opinion. Perhaps as long as government programs were intended to aid students, and benefited schools only incidentally, the states might retain some flexibility. And indeed, through the decade of the 1950s it remained unclear the extent to which Justice Black's strict separationism had become the official doctrine of the Supreme Court. Decisions pointed in different directions.

But hopes for judicial moderation proved illusory. In the early 1960s, the Court, under Earl Warren, returned with a vengeance to Black's broad-brush separationism in decisions striking down school prayer and otherwise commanding a thoroughgoing secularization of the American public square.

What Black had launched in Everson was a myth—the myth of a strict separationist American past. The sixties saw the rise of a militant secularism—a mind-set Justice Anthony Kennedy later described as "an unjustified hostility toward religion"—and the carriers of this militant secularism were precisely the liberal elites who dominated the country's intellectual and political life in that period. Black's myth was tailor-made for them, regarding religion and religious institutions, as they did, as forces of reaction and obscurantism standing in the way of secular progress—forces from which schoolchildren, in particular, needed protection. The liberals then dominating the Supreme Court faithfully reflected this attitude. Sometimes the opinion was by Black himself, sometimes by Tom Clark or Abe Fortas. The effect was to lock strict separationism tightly into constitutional law.

Surprisingly, with the arrival of Chief Justice Warren Burger in the 1970s, things got even worse. In a series of cases, beginning with Lemon v. Kurtzman in 1971, the Court struck down state efforts to include religious-school students in general programs of educational enrichment, and it evolved a new test, the "Lemon test," to be used to determine whether a public program complied with the establishment clause. The requirement was threefold: the program must have been enacted to serve a secular legislative purpose; the program's "primary effect" must neither advance nor inhibit religion; and the operation of the program must not involve government in "excessive entanglement" with church-related institutions. Any program that significantly benefited a religious school, even incidentally, the Court held, would have the "primary effect of advancing religion." Armed with this rigid formulation ("the fruit of the Lemon tree," one commentator called it), the separationist block on the Court, led by Justice William Brennan, continued to scythe down most programs that aided church-related schools into the early 1980s.

This militant judicial separationism reached its zenith in Brennan's majority opinion in Aguilar v. Felton in 1985. New York City, using federal funds under Title 1 of the Elementary and Secondary Education Act of 1965, provided services to educationally deprived children in low-income areas by allowing public school teachers to go into church-related schools to teach math and reading and to provide guidance counseling. The schools removed religious symbols from classrooms during the public school teachers' visits, and city education officials kept watch to ensure that the publicly provided instruction really was kept separate from programs of religious instruction. Brennan pounced on this monitoring, declaring that it constituted "excessive entanglement." The city was reduced to buying trailers (with scarce educational dollars) and parking them at the curbside outside schools, so the children could troop out to receive the services.

But even as Brennan triumphed in Aguilar, an intellectual counterattack against the strict separationist misreading of the establishment clause was finally gaining traction and undercutting the shallow historical foundation on which the Court's separationism rested. Among the most important examples of the new scholarship, Walter Berns's The First Amendment and the Future of American Democracy had appeared in 1976, followed by Michael Malbin's Religion and Politics: The Intentions of the Authors of the First Amendment in 1978 and Robert Cord's Separation of Church and State in 1982. Carefully and persistently, these authors exploded the separationist myth that Black had conjured up in 1947. Even within the legal academy (where strict separationism had been credulously accepted in the 1960s), the Lemon test was coming under criticism from such figures as Professors Philip Kurland and Michael McConnell of the University of Chicago Law School and Mary Ann Glendon of the Harvard Law School as a wooden and unwieldy instrument for dealing with contemporary America's multiplicity of differently nuanced church-state issues.

All this ferment came to a head in a lengthy, impassioned dissenting opinion by then-justice Rehnquist in a case called Wallace v. Jaffree, decided a few weeks after Aguilar in the spring of 1985. Here the Brennan bloc struck down a state law providing for a moment of silence as part of the opening of the public school day. The majority insisted this was a backdoor encouragement of prayer by the state. Incredible as it now appears, Rehnquist's dissent contained the first full review of the historical evidence on the framing and original meaning of the establishment clause by any member of the Court, and his conclusion was devastating: "The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the federal government from providing non-discriminatory aid to religion. There is simply no historical foundation for the position that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson."

Things have never been the same for radical separationism; it has been on the intellectual defensive ever since, with major scholarship adding to its discomfort year by year, and new members of the Court distancing themselves from the doctrine. Despite labored attempts by Justice David Souter and by a few die-hard professors, the intellectual dominance of Warren-era separationism cannot be restored either within the judiciary or the academy.

Does this mean the battle to reclaim the constitutional law of church and state has been won and the future of vouchers is assured? No; but the outlook is brighter than ever before. Two justices, Clarence Thomas and Antonin Scalia, are in full agreement with Rehnquist's traditionalist reading of the establishment clause. Two others, Anthony Kennedy and Sandra Day O'Connor, are not prepared to turn their backs on Everson, but they have both been critical of what they see as mechanical applications of the Lemon test and have shown some flexibility on church-state issues. Four justices continue to constitute a strict separationist bloc—John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—but even here some observers suspect, based on hints buried in earlier decisions, that one or more of them might support vouchers. Professor Laurence Tribe, Harvard's left-leaning legal guru (who personally thinks vouchers are a "lousy idea"), is also a very shrewd Court watcher, and he predicts that six or seven justices might vote to sustain them.

Furthermore, the Court has already made some significant breaks with its separationist past in its case law—notably, its reversal, in the spring of 1997, of Aguilar v. Felton. Invoking a little-used Supreme Court rule that allows one of the original parties to a case to move to reopen it if subsequent decisions of the Court have "eroded" the foundation of the original decision, New York City persuaded the Court to reopen—and overturn—Aguilar. Justice O'Connor, writing for the majority, held that recent decisions of the Court had modified the Lemon test: no longer would incidental benefits to religious institutions be held to have the effect of "advancing religion," and no longer would it be presumed that public employees functioning in sectarian institutional settings would require the kind of government monitoring that would create "excessive entanglement." As a result, the Board of Education teachers could go back into the parochial schools, and the trailers could be hauled away.

This new decision, Agostini v. Felton, had an almost immediate salutary effect in the legal battle over vouchers. The Milwaukee Parental Choice Program, one of the nation's most promising voucher experiments, had been tied up in a legal challenge for years and was before the Wisconsin Supreme Court when Agostini came down. Last June, in a 4-2 decision, that court sustained the program against both state and federal constitutional challenges. The impact of Justice O'Connor's opinion in the New York case was evident throughout Judge Donald W. Steinmetz's majority opinion in Wisconsin. While dutifully noting that on the federal establishment clause issue he was required to follow Lemon, Steinmetz noted that its "continued authority . . . is uncertain," and he treated it as a general guide with plenty of play at the joints.

Various parties to the Wisconsin suit have filed petitions asking the U.S. Supreme Court to review the decision, and we should know within the next few months whether the justices will agree to do so. But even should the Court decline to take the Wisconsin case, there are enough others moving forward around the country (including cases from Ohio, Vermont, and Maine) to make a Supreme Court resolution of the matter likely sooner rather than later.

But even if things are looking up for vouchers at the federal constitutional level, what about the state constitutions? Many of them, including New York's, contain a "Blaine amendment"—a provision that specifically prohibits state support of religious schools. It is often argued that in these states, at least, voucher plans are unconstitutional, whatever the U.S. Supreme Court decides. This argument is just as wrongheaded as arguments relying on the federal establishment clause.

Seeing why requires a brief historical detour. The mid-1870s saw the first of three major surges of bitterly anti-Catholic and anti-immigrant nativist sentiment that disfigured post-Civil War America. (The second, particularly relevant to New York, was in the mid-1890s, and the third in the early 1920s.) In 1875 the faltering Grant administration, stained by scandal and casting about for a way to revive Republican prospects before the election of 1876, moved to exploit this resurgent anti-Catholicism. Grant himself delivered a tub-thumping speech before the veterans of the Army of the Tennessee, urging them to see that "not one dollar appropriated" for education be spent to support any but "free"—that is, government-run—schools.

At this point, that prince of political opportunists, James G. Blaine, the Maine Republican who was minority leader of the House of Representatives, took the lead (it would be in Blaine's 1884 presidential campaign that the Democrats would find themselves branded as the party of "Rum, Romanism, and Rebellion"). He introduced the following amendment to the U.S. Constitution: "No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any state for the support of the public schools . . . shall ever be under the control of any religious sect." Blaine's amendment passed the House 180 to 7, but with 98 members not voting. In the Senate, a weaker version fell short of the necessary two-thirds vote.

But thereafter, the idea of writing into state constitutions an explicit provision guaranteeing that Catholic parochial schools would never receive a share of the common school fund become a leading item on the agenda of nativist thought and agitation. It received strong support from such benighted and intolerant groups as the American Protective Association, which spearheaded the anti-Catholic insurgency of the mid-1890s, and the revived Ku Klux Klan, the most powerful organization in the nativist outbreak of the l920s. Responding to these pressures, a number of states added these provisions to their constitutions.

New York's Blaine amendment (actually Article XI, Section 3, of the state Constitution) provides that "neither the state nor any subdivision thereof shall use its property, directly or indirectly, in aid or maintenance . . . of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught. . . ."

New York framed its present Constitution in 1894, at the peak of that decade's anti-Catholic furor. The American Protective Association was a major political force upstate that year, purporting to defend "true Americanism" against the "subjects of an un-American ecclesiastical institution" and retailing bogus papal encyclicals calling on Catholics to "exterminate all heretics." A more genteel (but even more effective) nativist formation, centered in the city and the southern counties, styled itself the National League for the Protection of American Institutions. Historians disagree as to the relative degrees of influence these groups exercised over the leadership of the Republican Party that controlled the Constitutional Convention, but all concur that, in winning the inclusion of the school provision, nativist influence was decisive. The tone was set by John Jay, urbane great-grandson of the Founding Father and a leading New York City anti-Catholic, who denounced "the Roman hierarchy, with whose widely organized and relentless hostility to American schools and American principles our people . . . are fast becoming familiar." (The nativists failed in their effort to include in the Constitution a ban on state support of religiously affiliated hospitals and orphanages, principally because the Jewish community maintained a number of these, and the combined strength of Jewish and Catholic agitation was enough to determine the issue.)

Those who would today resort to New York's Blaine amendment (or to similar provisions in other states) to attack voucher programs ought to be ashamed of themselves. Wherever adopted, such provisions were the handiwork of men whose vision of America was anything but pluralistic; they are part of the darker side of our history. It is a bitter irony that some of the groups now most ready to go to court on the basis of Blaine provisions—the American Civil Liberties Union, for instance, and the Anti-Defamation League—were originally organized to combat nativism and the kind of One-Hundred-Percent-Americanism that sought to marginalize non-WASP newcomers. And why in heaven's name should the NAACP be poised to defend the handiwork of groups, including the Klan, that were uniformly hostile to the aspirations of America's black people? Moreover, viewing religious schools, and post-Vatican II Roman Catholic schools in particular, as dangerous threats to American liberty is, to say the least, atavistic.

Aside from their unsavory origins, Blaine amendments are not, as a legal matter, fatal to school choice plans that include religious schools. What is forbidden by New York's Article XI, Section 3, for instance, is "aid," and there is no reason—historical, logical, or legal—to understand this term as encompassing any and all monies that might flow to church-related schools as a result of some governmental program. In affirming the Milwaukee Parental Choice Program, the Wisconsin Supreme Court had to deal with an objection based on a Blaine-type provision in the Wisconsin Constitution. In response, Judge Steinmetz and his colleagues relied on an earlier Wisconsin decision in a case upholding tuition payments for veterans at religiously affiliated high schools and colleges: "The contention that financial benefit accrues to religion from [this program] is . . . untenable. Only the increased cost to such schools occasioned by the attendance of beneficiaries is to be reimbursed. They are not enriched by the service they render. Mere reimbursement is not aid."

And this was exactly the position the New York State Court of Appeals took on the last occasion it was asked to construe Article XI, Section 3. The decision was in 1967, upholding an early Rockefeller program that lent publicly purchased textbooks to independent schools, including those with religious affiliations. With respect to the Blaine objection, Judge John F. Scileppi wrote: "Since there is no intention to assist parochial schools as such, any benefit accruing to those schools is a collateral effect of the statute, and, therefore, cannot be properly classified as the giving of aid directly or indirectly." Thus, the seemingly ferocious ban in New York's Blaine amendment against giving aid to church-related schools either "directly or indirectly" collapses in the case of vouchers, once it is understood that, absent an "intention to assist," no aid is involved at all.

After all, what the original backers of Blaine amendments were aiming at was the proposal, made by certain adventurous Catholic spokesmen in the late nineteenth and early twentieth centuries, that parochial schools should receive equal government funding with the public schools. Such a general governmental underwriting of a religious school system, to which church authorities exhorted Catholic parents to send their children, is altogether different from what happens under a voucher plan. Here public funds are placed at the disposal of parents in a program that is neutral among various kinds of schools—the voucher might be used at a better public school in another district or even another town; it might be used at a charter school; or it might be used at a private school, either religious or non-religious. The independent decisions of non-governmental third parties guide the transmission of funds. Constitutional language designed a century ago to preclude the complete funding of a sectarian school system cannot be stretched to apply to vouchers today.

The constitutional assault on vouchers is as perverse at the state level as it is at the federal. After all, for many years vouchers have been acceptable at religiously affiliated colleges and universities and at preschool and day-care facilities. Why should K-through-12 be different? The traditional American understanding of the separation of church and state is one of pragmatic flexibility, open to accommodations between religion and the public order so long as these are non-discriminatory and not coercive of conscience. The strict separationism of the old nativists, and of Justice Black and the Warren Court, were aberrations.

Of course, defenders of the discredited views still control many commanding heights in the media, the universities, and the legal profession. Justice Black's Everson version of separation held sway for almost half a century, taught from middle school to law school. Many judges still accept it uncritically. The liberal establishment is determined to protect it and extend it into a new century: "Breaching the Church-State Wall," the New York Times cried in alarm, in response to the Wisconsin voucher decision.

The accumulated result of years of separationist bullying was hilariously revealed a few years ago when former president George Bush was asked to recall his thoughts as a young naval aviator, shot down and pitched into the waters of the South Pacific. "What sustains you in times like that?" he said. "Well, you go back to fundamental values. I thought about Mother and Dad and the strength I got from them, and God, and faith—and the separation of church and state." Now, we are not really to suppose that, as he frantically paddled that "little yellow raft off the coast of an enemy-held island," Lieutenant Bush was reflecting on Jefferson's letter to the Danbury Baptists. What was operating was the reflex of an experienced, late-twentieth-century American politician: better not invoke the Deity, even in such a profoundly personal context, without immediately appeasing the strict separationists.

It is time to put an end to such nonsense.

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