Yes to Vouchers

The Supreme Court gets it right

More than fifty years ago, John Courtney Murray, S.J., commented of the United States Supreme Court’s church-and-state jurisprudence that "the First Amendment has been stood on its head." "In that position," he observed, "it cannot but gurgle juridical nonsense." This was, and remained, a fair assessment. But the Court’s recent school-voucher decision provides reason to hope that things are improving.

On the busy last day of its term, the justices confirmed in Zelman v. Simmons-Harris that the Constitution permits communities to experiment with meaningful, choice-based education reforms. In so doing, the Court reaffirmed that the First Amendment is best read in the service of religious freedom and civic pluralism, not the "naked public square" demanded by unyielding separationists. The Court reminded us that the Establishment Clause forbids denominational preferences, corrupting church-state entanglements, and coerced devotion; it does not, however, require discrimination against religious schools and families who choose them.

As constitutional doctrine, Chief Justice William Rehnquist’s majority decision in Zelman is both straightforward and sound. In upholding the Cleveland voucher experiment, Rehnquist applied two relatively simple (or, in the dissenters’ view, "formalistic") constitutional rules: First, the government must disburse funds under "neutral" criteria that neither prefer nor discriminate...

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About the Author

Richard W. Garnett is professor of law and associate dean of the University of Notre Dame Law School.