Voucher win's ripple effect on faith groups

The shift in constitutional perspective was born of social-political change, including the culture wars and the country's move to the right politically. "Religion reentered the public square in a very powerful way in the 1980s, and it changed the political landscape and the questions the court asked about how to apply the establishment clause," says Charles Haynes of the Freedom Forum First Amendment Center.

In the 19th century, Protestant-Catholic battles over the schools had strengthened the no-aid-to-religion position, says Douglas Laycock, professor of law at the University of Texas. "But in the 1980s, evangelical Protestants switched sides – they had been the group most opposed to aid to Catholic schools, and then they found themselves with their own network of schools."

Now some evangelical Christian leaders are organizing an exodus from the public schools notes Dr. Haynes, fueling a powerful nationwide movement. Further impetus comes from the dissatisfaction of many African-American parents with inner-city schools and the preference of some Muslim Americans to send their children to Islamic schools.

Meanwhile, the conservative movement to limit government encouraged legal theorists and think tanks of various stripes to press new views of private-public, religious-secular interaction.

Rather than treating religion under the First Amendment as a case for government hands off, some began arguing that it called for "equal treatment" and "nondiscrimination" toward religious groups. That led to key court decisions such as requiring the University of Virginia to fund an evangelical publication along with other student activities.

CPJ and others began promoting the idea that equal treatment of religious groups should apply wherever government provides funds to solve societal problems. "If citizens happen to be rendering a service precisely because they are religious, why would government establish criteria to keep them from participating in the same way as other groups?" Skillen asks. "Government has to be neutral and give equal treatment to all."

Ms. Hollman counters by questioning whether those seeking equal treatment in funding are willing to take equal treatment in regulation and accountability. The struggle over the faith-based initiative suggests they are not, she adds. In addition, "it is inevitable any time that the government funds religion that it will tend to do so at the expense of other religions," she says.

In education, the battleground shifts to the states, many of which have constitutional prescriptions even stronger than the First Amendment, and the people will have to decide whether voucher programs are where they want to spend tax dollars.

Equal treatment of religious groups under the faith-based initiative still faces a constitutional hurdle and a contentious Congress. Several challenges to its constitutionality are already in the courts.

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