WASHINGTON — For nearly 20 years, the US Supreme Court has been gradually lowering the wall separating church and state, making it easier for religious schools to receive government aid.
By focusing on the concept of government neutrality toward religious groups rather than mandating a hands-off relationship between church and state, the court has blurred the line barring tax revenues from flowing to faith-based schools.
Today, the nation's highest court takes up a case involving a school-voucher program in Cleveland that could produce a landmark decision, extending even further the court's doctrine of neutrality.
The justices are being asked to determine whether school vouchers violate the separation of church and state by using tax dollars to send public-school students to private religious schools. If upheld, the case could open the door to substantial amounts of taxpayer money flowing to private religious schools across the country.
Such a development could dramatically change the structure of public education in America, empowering and enriching private religious schools at the expense of public schools. Even more significant, it would mark a further evolution in the court's approach to the First Amendment's establishment clause, opening the door to a new era of partnership between government and religion, from aid to parochial schools to government support for a wide range of faith-based initiatives favored by the Bush administration.
"This is huge," says Douglas Laycock, a law professor and church-state scholar at the University of Texas. "All the opinions so far are carefully hedged and qualified," he says of the court's church-state decisions since 1983. "Vouchers are the really big program they haven't dealt with."
One indication of the potential far-reaching implications of the case: More than 30 organizations have filed friend-of-the-court briefs on both sides of the issue. Those in support of vouchers include the United States Conference of Catholic Bishops, the National Jewish Commission on Law and Public Affairs, and former New York City Mayor Rudolph Giuliani. Among those opposing vouchers are the NAACP Legal Defense and Educational Fund, the American Jewish Committee, and the Ohio School Boards Association.
In broad terms, what is at stake in the Cleveland voucher case is the essence of the tension that the nation's Founding Fathers built into the First Amendment. On one hand, it bars government from taking actions "respecting the establishment of religion." But in the same sentence, it also forbids government from taking action "prohibiting the free exercise" of religion.
Both clauses work as a check against the other becoming more dominant, in the same way that other parts of the Constitution provide for checks and balances between the executive, legislative, and judicial branches of government. In effect, the Supreme Court is seeking to achieve what it views as the proper constitutional balance between church and state.
The Cleveland voucher case is only the latest battleground over how that balance should be achieved.
Strict separationists believe religion is strongest when it exists completely apart from government, with no government aid and the binding regulations that may come with that aid. Advocates of neutrality believe that religious organizations - including parochial schools - are just as entitled as secular organizations to receive aid when it is offered by the government.
The Cleveland voucher case offers fertile territory for debate by both camps. Under the voucher plan, low-income students receive up to $2,250 in government money to apply toward tuition at one of 56 preapproved private schools. All but 10 of the schools are run by religious organizations. In the 1999-2000 school year, 3,800 students received vouchers, and 96 percent of them attended religious schools.
Opponents of the plan sued in federal court, claiming the voucher program violates the separation of church and state by using government money to support private religious schools that engage in religious instruction.
Voucher supporters say it is entirely up to the parents and students to decide whether to use the vouchers to attend a private religious school or a private secular school. The government plays no role in the decision, they say, so the aid cannot be attributed to the government.
A federal appeals court in Cincinnati disagreed with this view. In a 2-to-1 ruling, the appeals court struck down the voucher program because the court found it offered parents no real choice between religious and secular schools. "There is no neutral aid when that aid principally flows to religious institutions; nor is there truly 'private choice' when the available choices resulting from the program design are predominantly religious," the court said in a December 2000 decision.
The Supreme Court agreed to hear the case last fall. Although the justices have never directly addressed vouchers, their positions in similar school-aid cases suggest to some analysts that the court may divide 4-4, with Justice Sandra Day O'Connor in position to decide the case.
While it is unclear how she might rule, Justice O'Connor has offered hints in the past. The key, she says, is whether a voucher plan represents a "true private-choice program" capable of separating the government from any endorsement of a religious message or activity.
"When government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, no reasonable observer is likely to draw from the facts an inference that the state itself is endorsing a religious practice or belief," she wrote two years ago in a school-aid decision. "Endorsement of the religious message is reasonably attributed to the individuals who select the path of the aid."
Thus, it appears the key question will be whether O'Connor sees the Cleveland voucher plan as involving "true private choice," or as a mere sham enabling government aid to reach religious groups via parents who have no real say in how the vouchers are spent.
Clint Bolick, of the Institute for Justice, a public-policy litigation group in Washington, maintains that the program empowers parents to make real choices to improve the quality of their children's education. "As a result of this program, for the first time the parents are not inconsequential with respect to the education of their children," Mr. Bolick writes in his brief to the court supporting vouchers.
Voucher opponents disagree. "The Ohio voucher program is so heavily skewed towards religion as to make it inevitable that, no matter what 'private choice' individual voucher program parents make, a significant portion of the aid expended under the program as a whole will end up flowing to religious education," writes lawyer Robert Chanin in his brief to the court.
A decision in the case is expected by the end of June.