In its most important church-state ruling in years, the Court in Zelman v. Simmons-Harris, 2002 WL 1378554 (2002), by a 5-4 vote upheld the Cleveland voucher program under which public funds are used to send students to private schools, the overwhelming majority of which are religious. In an opinion by Chief Justice Rehnquist, joined by Scalia, Thomas, Kennedy, and O’Connor, the Court significantly weakened the wall of separation between church and state, giving its blessing to a program in which public funds are provided to religious schools on an unrestricted basis, where they may be used for any purpose whatsoever, including religious indoctrination, the purchase of religious books, the salaries of clergy, and the construction of places of worship. According to the majority, the voucher program passes constitutional muster because it is a “neutral” program and public funds flow to religious schools only as the result of the “private choice” of parents. Justice Thomas, in addition to joining the majority opinion, wrote a concurring opinion in which he took the even more extreme position of suggesting that the Establishment Clause should not be applied to the states by incorporation into the Fourteenth Amendment, at least not to the extent it applies to the federal government, asserting that there is “wisdom [in] allowing States greater latitude in dealing with matters of religion and education . . . .” Expressly invoking Brown v. Board of Education, Justice Thomas further claimed that this case presented an example of “urban children [having] been forced into a system that continually fails them.” Justice O’Connor wrote a concurring opinion in which she attempted to minimize the Court’s ruling, claiming that the decision did not “signal a major departure from the Court’s prior Establishment Clause jurisprudence.”
Justices Souter, Stevens, Breyer and Ginsburg vigorously dissented, explaining that the Court’s decision violated fundamental objectives of the Establishment Clause, including protecting Americans from being compelled to support religion. In an opinion written by Justice Souter, the four dissenters also expressed concern that the Court’s decision will be harmful to religion as government reasonably seeks accountability for the money it provides to religious institutions and imposes restrictions on the institutions accepting those funds. Souter’s dissent cited examples from the Ohio voucher law itself, including the requirement that participating religious schools not “discriminate on the basis of religion.” As in the Court’s 5-4 federalism decisions, the dissenters did not accept the legitimacy of the Court’s ruling, expressly stating their hope “that a future Court will reconsider today’s dramatic departure from basic Establishment Clause principle.”
The Court’s 5-4 split in this case underscores the precarious status of church-state separation in this country, and plainly has implications for government funding of religion beyond the school voucher context. The addition of another Justice like Scalia or Thomas to the Court would further weaken the fundamental principles that protect freedom of conscience and religious liberty for all Americans.