by Jason S. Marks¹

Public schools across the country, particularly those located in economically depressed comm-unities, face mounting criticism for poor student performance as reflected in lower standardized test scores and graduation rates.² The schools with the most alarming statistics tend to be those laboring under difficult constraints – lower per pupil funding, inadequate physical facilities, lagging access to new technology and an inability to attract and retain high quality teachers.³ Some view the problems confronting many of our public schools as chronic, even intractable, with numerous and often conflicting causes rooted in complex social and economic conditions. Others, notably those who advocate parental choice and market competition, see a simple solution – vouchers.

First proposed by economist Milton Friedman more than 40 years ago, voucher programs allocate government funds to parents to help send their children to the public, private or sectarian school of their choice.⁴ In theory, competition for vouchers would force underachieving public schools to undergo significant reform in order to provide the educational environment and outcomes of the highest performing public and private schools.⁵ In practice, the limited amount of overall available funding and the scarcity of open seats at the best private schools would greatly restrict the number of students attending the school of their choice.⁶ Those students unable to benefit from vouchers would have to attend neighborhood public schools operating with fewer resources due to the loss of voucher students.⁷ Additionally, empirical studies of voucher programs reveal at best mixed and uneven results, with no discernible difference in student achievement.⁸

Despite the lack of any proven success, voucher proponents have persuaded several state and local governments to enact numerous pilot programs. Opponents of school vouchers have gone to court to challenge many of these programs, principally by playing their "trump card" – the Establishment Clause of the First Amendment, whose ban on public funding of religious indoctrination ostensibly invalidates voucher programs that rely, often heavily, on sectarian schools as participants. However, on the last day of its 2001-2002 term, the United States Supreme Court in Zelman v. Simmons-Harris⁹ "trumped" the Establishment Clause by upholding the constitutionality of an Ohio school voucher program wherein low-income parents use publicly-funded "tuition aid scholarships" to help send their children to sectarian elementary and middle schools. Zelman is the first case in which a majority of the Court has sanctioned direct public funding of schools whose modus vivendi is to inculcate religious values, beliefs and teachings in their students.

Conservative leaders, including President George W. Bush, lauded the decision, comparing it to the historic Brown v. Board of Education ruling that ended segregation in the public schools.¹⁰ Others criticized the decision as a significant break with decades of precedent prohibiting the use of public monies to support, directly or indirectly, the missions of religious institutions.¹¹ Proponents and opponents of school vouchers alike agreed that the focus now shifts to Congress and state legislatures to debate new voucher proposals.¹²

Zelman begins a new era in the legal relationship between church and state. However, state courts, not the political process, likely will have the last word on the extent to which voucher programs can include sectarian schools. Most state constitutions specifically address the use of public funds for religious activities, and many, like Missouri, contain provisions far more restrictive than the federal constitution.¹³ After a review of Establishment Clause jurisprudence before and after Zelman, this article will examine the state constitutional barriers that could impede implementing school voucher programs in Missouri and analyze the degree to which these barriers may prove insurmountable for proponents of school voucher programs.

I. The Establishment Clause in a Nutshell

The Establishment Clause of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion."¹⁴ James Madison, the author of the First Amendment, believed the government should have no power to compel belief in matters of conscience.¹⁵ In his view, the Establishment Clause would prohibit the government from legislating not only as to whether and how an individual engages in or refrains from a particular religious creed or practice, but also from using the public fisc to support any or all religious denominations.¹⁶ Thomas Jefferson, like Madison a leader in the disestablishment movement, envisioned the Establishment Clause as building "a wall of separation" between church and state.¹⁷ Some 150 years after passage of the Bill of Rights, the United States Supreme Court, when first called upon to interpret the meaning of the Establishment Clause, unanimously adopted the strong separationist language of Madison and Jefferson, yet approved by a 5-4 margin the use of public funds to reimburse parents who use public transit to send their children to school, whether public, private or sectarian in nature.¹⁸ Despite this seemingly mixed message,¹⁹ over the next 40 years the Supreme Court upheld only two additional public benefits to sectarian schools – the loaning of secular textbooks to nonpublic school students²⁰ and the grant of a state income tax deduction for educational expenses incurred by parents whose children attend private or parochial schools²¹ – while repeatedly finding unconstitutional various attempts to funnel public funds, either directly or indirectly, to sectarian institutions.²²

Shortly before ascending to Chief Justice, then-Justice Rehnquist wrote an extensive dissenting opinion expressing his view that the history of the ratification of the Establishment Clause reveals that the Clause prohibits the creation of a national church and prevents government "from asserting a preference for one religious denomination or sect over others," but in no way "requires government to be strictly neutral between religion and irreligion" or bars government "from pursuing legitimate secular ends through nondiscriminatory sectarian means."²³ Upon becoming Chief Justice, he rallied the Court's most conservative members to join in his vision of neutrality in matters of church and state. In a series of cases, the Court upheld programs that required public schools to honor requests from parochial school students for sign language interpreters to accompany them on campus throughout their school day;²⁴ "sent public school teachers into parochial schools to [teach] remedial [secular] education to disadvantaged [students];"²⁵ and allowed sectarian schools to purchase with government funds "library and media materials,"²⁶ thereby setting the stage for Zelman.

II. Zelman – The Wall Collapses

In response to a crisis in the Cleveland City School District, the State of Ohio enacted the Pilot Project Scholarship Program, wherein students living in the Cleveland City School District receive tuition aid to attend a participating public or private school of their choice.²⁷ Religious schools may participate if they agree not to discriminate on the basis of race, religion or ethnic background nor "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion."²⁸ The most economically disadvantaged students in the district receive priority, up to $2,250 in tuition aid and maximum parental co-payment of $250.²⁹ Other eligible students receive up to $1,875 in tuition aid, with no cap on parental co-payment.³⁰ Tuition checks are made payable to the parents, who endorse the checks over to the chosen school.³¹ In the 1999-2000 school year, 46 of the 56 participating private schools had a religious affiliation, and virtually all (96%) of the 3,700 participating students enrolled in religiously affiliated schools.³² A group of Ohio taxpayers filed suit in federal court, alleging the Pilot Project Scholarship Program violated the Establishment Clause of the First Amendment. Both the district court and the 6th Circuit Court of Appeals agreed.³³

A deeply divided Supreme Court reversed the lower courts and upheld the constitutionality of the Ohio program. Chief Justice Rehnquist wrote the opinion of the Court, in which Justices O'Connor, Scalia, Kennedy and Thomas joined. Chief Justice Rehnquist said "the question presented is whether the Ohio program . . . has the forbidden 'effect' of advancing or inhibiting religion."³⁴ Stating that "our jurisprudence with respect to true private choice programs has remained consistent and unbroken,"³⁵ the Court held "that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause."³⁶ The Court defined "neutral educational assistance" as the offering of "aid directly to a broad class of individual recipients defined without regard to religion."³⁷ Because the Ohio program gives the tuition scholarships directly to parents of eligible students on a neutral basis, and these same parents alone choose where to spend these tuition scholarships, the fact that sectarian schools indirectly benefit from these parental choices does not offend the Establishment Clause.³⁸

In a remarkable concurrence, Justice Thomas wrote separately to become the first justice to question whether the Establishment Clause should be applied to the states.³⁹ In his view, "[s]tates may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest."⁴⁰ Justice Thomas sees an inherent conflict between the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment, which he construes to provide equal educational opportunities for whites and African-Americans alike.⁴¹ Vouchers, in Justice Thomas' opinion, provide this opportunity: "If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination's effects."⁴²

Justice O'Connor provided the decisive fifth vote for the majority. Only two terms ago, she refused to join the same four justices announcing the same "rule of unprecedented breadth"⁴³ because it "foreshadow[ed] the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives."⁴⁴ In her concurring opinion in Zelman, Justice O'Connor acknowledged that "the Court takes an important step" in a case "different from prior indirect aid cases in part because a significant portion of the funds appropriated for the voucher program reach religious schools without restrictions on the use of these funds."⁴⁵ She justified her support of this shift in her jurisprudence in part on her belief that the $8.2 million allotted for the voucher program "pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions" through income and property tax exemptions and their inclusion in public health programs such as Medicare.⁴⁶ Justice O'Connor does not consider the majority's rule "a major departure from the Court's prior Establishment Clause jurisprudence" since, from this Court's first Establishment Clause ruling upholding the provision of bus transportation to public and parochial students alike, the Court only has "require[d] that state aid flowing to religious organizations through the hands of beneficiaries must do so only at the direction of those beneficiaries."⁴⁷ In the voucher program, "parents of students eligible for vouchers have a genuine choice between religious and nonreligious schools," and it is only through these choices that government monies reach religious schools; as a result, for Justice O'Connor the program "is consistent with the Establishment Clause."⁴⁸

Justice Souter authored the principal dissent, in which he was joined by Justices Stevens, Ginsburg and Breyer. Justice Souter placed the majority's doctrinal shift in a historical context; where the Court once made a searching inquiry into the chain of custody of government funds diverted to religious institutions, the Court now settles for "verbal formalism" – if the program is neutral on its face between secular and sectarian, the inquiry ends, even if in practice the program funnels millions of taxpayer dollars into the treasuries of sectarian schools in furtherance of their religious mission.⁴⁹ He takes Justice O'Connor to task for confusing government benefits "to religious institutions when the recipients are not pervasively sectarian," such as a religiously affiliated hospital, and "direct aid to pervasively sectarian schools for religious teaching."⁵⁰ For Justice Souter, the Ohio voucher program violates "every objective underlying the prohibition of religious establishment," and its sudden constitutionality will have a powerful negative impact on religious liberty.⁵¹ In the ensuing "scramble for money," competition "will tap sectarian religion's capacity for discord" so that private disagreement over matters of belief will become public battles over one sect's claim to public funds.⁵² Justice Souter ended his dissent with a plea "that a future Court will reconsider [this] dramatic departure from basic Establishment Clause principle."⁵³

Justice Stevens wrote a dissenting opinion to emphasize that "the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible."⁵⁴ The latter question – previously critical to an Establishment Clause inquiry – the majority never acknowledged, let alone addressed.⁵⁵ Justice Stevens concluded on a poignant note: "Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundations of our democracy."⁵⁶

In his dissent, Justice Breyer stressed "the risk that publicly financed voucher programs pose in terms of religiously based social conflict."⁵⁷ He stated very frankly that the majority "turns the clock back" and "adopts, under the name of 'neutrality,' an interpretation of the Establishment Clause that this Court rejected more than half a century ago."⁵⁸ Justice Breyer explained that "voucher programs differ . . . in both kind and degree from aid programs upheld in the past."⁵⁹ First, "they differ in kind because they direct financing to a core function of the church: the teaching of religious truths to young children."⁶⁰ Second, they differ in degree because "the aid programs recently upheld by the Court involved limited amounts of aid to religion," whereas the new conception of neutrality "appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools."⁶¹

Zelman officially ends, at least for the duration of the present Court, the longstanding prohibition of government funding for sectarian institutions in the promotion of their religious mission. The majority reached its new position not by distinguishing or overruling its previous contradictory Establishment Clause decisions, but by simply pretending they never existed. Justice O'Connor fares no better in her attempt to justify her suddenly "finding religion" – a neutral public benefit in the form of subsidies to all parents who use public transportation to send their children to public or parochial schools bears little, if any, relation to a facially neutral statute that serves only as a pretext to send billions of government funds directly to religious schools to promote their faith and its teachings. Similarly, religiously affiliated hospitals deliver health care, not religious instruction, as is the case with religiously affiliated schools. Justice Scalia's criticism for his colleagues in a wholly unrelated case decided only a week before Zelman seems better suited for the Zelman majority: "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members," and the "arrogance of this assumption of power takes one's breath away."⁶²

III. Voucher Programs and the Missouri Constitution

In the last five years alone, Missouri legislators have tried repeatedly, though unsuccessfully, to enact either a pilot voucher program modeled after the Ohio program upheld in Zelman or a tax credit program whereby individuals and corporations would receive tax credits for contributions made to non-profit "scholarship charities" that would distribute private vouchers to eligible students.⁶³ Unlike the federal constitution, the Missouri Constitution contains several explicit provisions governing public funds and religious institutions:

• Article I, § 6: "That no person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion."

• Article I, § 7:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

• Article IX, § 5:

The proceeds of all certificates of indebtedness due the state school fund, and all moneys, bonds, lands, and other property belonging to or donated to any state fund for public school purposes, and the net proceeds of all sales of lands and other property and effects that may accrue to the state by escheat, shall be paid into the state treasury, and securely invested under the supervision of the state board of education, and sacredly preserved as a public school fund the annual income of which shall be faithfully appropriated for establishing and maintaining free public schools, and for no other uses or purposes whatsoever.

• Article IX, § 8:

Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever.

Reading the plain language of these constitutional provisions suggests that voucher programs would have little hope for success in Missouri; for the most part, judicial interpretation of these provisions would support such a reading.

In Harfst v. Hoegen,⁶⁴ the Supreme Court of Missouri interpreted these constitutional provisions for the first time in the context of a school district's attempt to incorporate a parochial school within its system without changing the nature or manner of teaching in the parochial school.⁶⁵ A group of taxpayers residing in the school district sought to enjoin the union on the ground that the school district was "maintaining a parochial school at public expense, contrary to our Constitution."⁶⁶ The court noted that compelling a student to attend a parochial school within a public school district "constitutes a denial of our guaranty of religious freedom."⁶⁷ Further, our constitution contains "an explicit interdiction of the use of public money" for any religious institution or instructor of religion – a prohibition the school district clearly violated.⁶⁸

The constitutional policy of our State has decreed the absolute separation of church and state, not only in governmental matters, but in educational ones as well. Public money, coming from taxpayers of every denomination, may not be used for the help of any religious sect in education or otherwise. If the management of this school were approved, we might next have some other church gaining control of a school board and have its pastors and teachers introduced to teach its sectarian religion. Our schools would soon become the centers of local political battles which would be dangerous to the peace of society where there must be equal religious rights to all and special religious privileges to none. The faithful observance of our constitutional provisions happily makes such a condition impossible.⁶⁹

In McVey v. Hawkins,⁷⁰ the Supreme Court of Missouri considered the validity of a public school district providing bus transportation for students of a parochial school located outside of the school district. Notably, this type of program was found constitutional under the Establishment Clause by the United States Supreme Court.⁷¹ The Supreme Court of Missouri struck down the program, as it amounted to a violation of Article IX, § 5, which prohibits taxpayer funds deposited into the public school moneys fund from being used for any purpose other than maintaining free public schools.⁷²

In Paster v. Tussey,⁷³ the Supreme Court of Missouri confronted yet another program – the lending of secular public school textbooks to teachers and students of parochial schools – which the United States Supreme Court held not violative of the Establishment Clause.⁷⁴ The Supreme Court of Missouri noted that "the provisions of the Missouri Constitution declaring that there shall be a separation of church and state are not only more explicit but more restrictive than the Establishment Clause of the United States Constitution."⁷⁵ The court held that, under Article IX, § 8, establishment of a school by a sect "promoting and perpetrating the tenets of the sect" in and of itself suffices to endow the school with a sectarian purpose and, once so endowed, no public funds legally may be expended to the benefit of such a school.⁷⁶

In Mallory v. Barrera,⁷⁷ the Supreme Court of Missouri waded into the "apparently endless legal battle"⁷⁸ over the distribution of federal funds pursuant to Title I of the Elementary and Secondary Education Act of 1965. Congress enacted Title I to allocate federal funds "to local educational agencies . . . to expand and improve their educational programs" available to low-income children in public, private and parochial schools.⁷⁹ The state commissioner of education refused to distribute Title I funds to parochial schools, citing the applicable provisions of the state constitution.⁸⁰ The Court sided with the commissioner, holding that federal funds deposited in the state treasury for public school purposes implicates both Article I, § 7 and Article IX, § 8 and, pursuant to these provisions, cannot be distributed to parochial schools.⁸¹

Mallory did not end the Title I saga. Congress amended Title I to authorize the Secretary of Education to bypass state and local authorities when their participation would violate a state constitution by delivering the services directly to deprived non-public school students through the use of independent contractors unrelated to state and local agencies.⁸² Blue Hills Home Corporation (BHHC) successfully bid for the bypass projects in Missouri.⁸³ In Wamble v. Bell, a federal district judge found the bypass procedure constitutional on its face, though it could be found unconstitutional as applied to a particular contracting situation: "Implementation, management and supervision of the program by a puppet of the Church, however well-intentioned, is tantamount to direct fiscal government aid to religiously affiliated schools."⁸⁴ Originally a sectarian corporation, BHHC restructured itself and became "ostensibly neutral,"⁸⁵ and continues to serve as the Title I conduit for private and parochial schools in Missouri.

In sum, Missouri courts have not sanctioned any programs, no matter how well intentioned, which involve state funds supporting in any manner religious schools, religious teachers or religious instruction. Underprivileged children attending non-public schools may benefit from federal Title I funds only through an elaborate bypass procedure. Given these constraints, the two frequently proposed school choice programs – vouchers and tax credits – likely would be ruled unconstitutional. Any voucher program involving state or local funds by definition results in these funds finding their way into the coffers of religious institutions, in violation of Article I, § 7 and Article IX, § 8. Because voucher programs must involve choice between public and non-public educational alternatives to survive federal constitutional scrutiny, voucher programs will always have a purpose of supporting public schools; consequently, every voucher program will, by definition, violate Article IX, § 5. Finally, because tax credits for educational scholarships indirectly cause taxpayers to contribute to programs that benefit sectarian institutions – a contribution that likely would not have occurred absent the tax incentive – they would violate Article I, § 7. The only possible legal implementation of vouchers in Missouri schools would be through a federal funding scheme modeled after Title I; all funding would have to come from the federal government and be allocated via private, neutral independent contractors who would administer the program and make disbursements directly to parents intent on sending their children to parochial schools.

IV. Voucher Programs and Other States' Constitutions

Five states – Wisconsin, Ohio, Arizona, Vermont and Florida – have already considered the validity of voucher programs under their respective state constitutions. Their collective experiences have produced confusion more than consensus.

In Jackson v. Benson,⁸⁶ the Wisconsin Supreme Court reviewed the Milwaukee Parental Choice Program (MPCP), a pilot voucher program that allocated state funds to low-income parents with students in the Milwaukee public school system to enable the parents, if they so chose, to send their children to participating private and parochial schools. "The 'benefits clause' of Article I, § 18 [of the Wisconsin constitution states that] 'nor shall money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.'"⁸⁷ The Wisconsin Supreme Court had previously held that this provision, though "more specific than the terser" federal Establishment Clause, should be understood "in light of the United States Supreme Court cases interpreting the Establishment Clause."⁸⁸ Under its reading of Wisconsin precedent, "[t]he court held that public funds may be placed at the disposal of third parties so long as the program on its face is neutral between sectarian and nonsectarian alternatives and the transmission of funds is guided by the independent decisions of third parties."⁸⁹ The "compelled support clause [of Article I, Section 18 of the Wisconsin constitution] provides 'nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry without consent.'" The court opted to read this provision coextensive with the "benefits clause" and find no constitutional violation.⁹⁰

In Simmons-Harris v. Goff,⁹¹ the Ohio Supreme Court considered whether the voucher program that withstood federal constitutional scrutiny in Zelman violated any provisions of the Ohio constitution.

Section 7, Article I of the Ohio Constitution states that "[n]o person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted."⁹²

The court began by noting it "has had little cause to examine the Establishment Clause of our own Constitution."⁹³ Though stressing "[t]here is no reason to conclude that the Religion Clauses of the Ohio Constitution are coextensive with those in the United States Constitution,"⁹⁴ the court chose to evaluate state establishment issues using the framework adopted by the United States Supreme Court in Lemon v. Kurtzman.⁹⁵ The court concluded that "the School Voucher Program does not have an impermissible legislative purpose or effect and does not excessively entangle the state and religion," and therefore "does not violate Section 7, Article I."⁹⁶

In Kotterman v. Killian,⁹⁷ the Arizona Supreme Court considered the legality of a program that allows a state tax credit of up to $500 for those who donate to "school tuition organizations," non-profit entities that distribute vouchers to eligible students to attend the public, private or parochial school of their choice. Article II, § 12 of the Arizona constitution states that "[n]o public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment." The court held that, because no money enters the state treasury as a result of the tax credit, the program falls outside the scope of this provision.⁹⁸ Additionally, the court noted that reducing a taxpayer's liability is not the "equivalent of spending a certain sum of money" in aid of religion.⁹⁹

In Chittenden Town School District v. Vermont Dept. of Education,¹⁰⁰ the Vermont Supreme Court reviewed a state statutory scheme that authorized public school districts to provide high school education to their students by paying tuition for private or sectarian schools selected by their parents. The "Compelled Support Clause of Chapter I, Article 3" of the Vermont constitution states that "no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience." The court found "no way to separate religious instruction from religious worship," that the statutory scheme has no restrictions on the use of the money to fund religious education, and, consequently, the scheme violates the Compelled Support Clause.¹⁰¹

Recently, in Holmes v. Bush,¹⁰² a Florida circuit court found the state's Opportunity Scholarship Program (OSP) in violation of Article I, § 3 of the Florida Constitution, which provides that "[n]o revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." Under the OSP, parents whose children attend "failing" public schools receive a tuition voucher to help send their children to the public, private or parochial school of their choice.¹⁰³ The circuit court found that the OSP takes funds out of the state treasury and inures to the benefit of sectarian institutions, notwithstanding that the funds are funneled through the parents before reaching the schools.¹⁰⁴ The court concluded that it "cannot be logically, legally, or persuasively argued that the receipt of these funds does not aid or assist the institution in a meaningful way. The entire educational mission of these schools, including the religious education component, is advanced and enhanced by the additional financial support received through operation of the Opportunity Scholarship Program."¹⁰⁵

Though the high courts of Wisconsin and Ohio upheld voucher programs under their respective state compelled support clauses, both courts made clear they interpreted their state constitutional provisions using the same framework as the United States Supreme Court in examining the Establishment Clause. In contrast, the Supreme Court of Missouri has for more than 60 years placed a much more restrictive reading on its religion clauses; in this regard, Vermont seems the closest precursor to a judicial consideration of vouchers in Missouri. Additionally, Missouri, like Florida, has specific provisions prohibiting the use of any public school funds for non-public schools, and the use of any public funds for the support of any religious institution – provisions not included in the constitutions of Wisconsin, Ohio, Arizona and Vermont. As for tax credits, the Arizona Supreme Court refused to acknowledge the indirect benefit a tax credit for tuition scholarships to sectarian schools has for these schools, an outcome much more doubtful in Missouri given the "directly or indirectly" language of Article I, § 7. In short, other state courts' experience, with the possible exception of the recent Florida ruling, evaluating voucher programs under their respective state constitutions has little bearing on what would transpire in Missouri given its much more explicit constitutional provisions and strict separation judicial interpretation.

V. Conclusion

In a famous dissent nearly a century ago, Justice Holmes wrote that "[g]reat cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."¹⁰⁶ Zelman illustrates Holmes' point quite well. Vouchers may, though likely will not, be the great panacea for what ails public education in our nation. In fact, their popularity may prove to be quite brief. However, the effects, both tangible and intangible, of the complete evisceration of the wall separating church and state will emanate throughout our country for years to come. Local, state and federal government agencies will partner with religious institutions in joint ventures aimed at reforming education, health care, juvenile crime – indeed, our nation's entire social service infrastructure. Churches, synagogues and mosques suddenly will find themselves in a sea of state and federal regulations on employment practices, health and safety issues, and workplace environment – to name but a few – with which they disagree as a matter of religious doctrine but with which they must nevertheless comply. For example, nondiscrimination policies in hiring teachers will affect the faculty of some religious schools that employ only religiously trained teachers.¹⁰⁷ Government bodies will find themselves in the middle of internecine denominational turf wars – diplomatic envoys will be needed to negotiate funding accords between and within religious sects. In the end, both church and state likely will rue the day they agreed to go into business together.

Prohibiting government compulsion of belief motivated the creation of the Establishment Clause. Yet, after Zelman, taxpayers can be compelled to support religious schools of sects with which they may vehemently disagree and whose tenets they may find offensive, or at least contrary to their own religious beliefs, while, ironically, the Court continues to protect union members from paying dues for political activities with which they disagree.¹⁰⁸ All of us, as taxpayers, ultimately fund a government whose actions will at times conflict with our own political beliefs; however, this compelled support has from our nation's founding been a part of our democratic compact – we elect our leaders and the majority rules. Not so for religious freedom – the Establishment Clause is inherently anti-majoritarian, designed to protect religious minorities from the tyranny of the majority. After Zelman, this protection no longer exists; we now live under markedly different – and lesser – rules of religious freedom where government compulsion of belief is constitutionally acceptable. Funding voucher programs is but the beginning of a dangerous slippery slope. For example, if a public school offers all faiths an opportunity to give a morning prayer, does this neutrality suffice to override the government endorsement of religion? Only time will tell.

Zelman joins an infamous class of decisions that includes Plessy v. Ferguson and Lochner v. New York. Perhaps, as with Plessy and Lochner, Zelman one day will be overturned.

Footnotes

¹ Jason S. Marks is director of operations for Mackler & Associates, an educational planning and consulting firm in St. Louis. Mr. Marks received his J.D. from Washington University in 1992.

² Thomas L. Good & Jennifer S. Braden, The Great School Debate: Choice, Vouchers and Charters 27, 53 (Lawrence Erlbaum Associates, 2000). The authors note that the empirical "evidence makes it clear that American students of today are not academically inferior to those of yesterday," however, some schools "are among the worst in the world" and "performance in some states is shocking," due principally to funding – "educational achievement is low when children from poor families attend schools that are inadequately funded," particularly those in the inner cities. Id. at 81.

³ National Center for Education Statistics, U.S. Department of Education, The Condition of Education 2002 (June 2002); The Black-White Test Score Gap (Christopher Jencks & Meredith Phillips, eds. 1998).

⁴ Good & Braden, at 90-92.

⁵ Id.; Lynn Olson, Redefining "Public" Schools, Education Week, April 26, 2000. Available at http://www.edweek.org.

⁶ Good & Braden, at 104; Olson, at ___.

⁷ Id.

⁸ Good & Braden, at 105-110.

⁹ 122 S. Ct. 2460 (2002).

¹⁰ In a speech on July 1, 2002, in Cleveland, Ohio, President Bush stated that, just as Brown outlawed dual school systems, "one for African Americans and one for whites," the Zelman decision "declared that our nation will not accept one education system for those who can afford to send their children to a school of their choice and for those who can't. And that's just as historic." White House Office of Media Affairs Press Release (July 1, 2002), online at http://www.whitehouse.gov/news/releases/2002/07/20020701-7.html. Jay Sekulow, chief counsel for the American Center for Law and Justice, hailed the ruling as a "landmark decision that will revolutionize the educational system in this country." American Center for Law and Justice Press Release (June 27, 2002), online at http://www.aclj.org/news/pressreleases/ 020627_vouchers.asp.

¹¹ Rev. Barry W. Lynn, executive director of Americans United, described Zelman as the "worst church-state ruling in 50 years." Americans United Press Release (June 27, 2002), online at http://www.au.org/press/pr062702.htm.

¹² John Gehring, Voucher Battles Head to State Capitals, Education Week, July 10, 2002. Available at www.edweek.org.

¹³ Id.

¹⁴ U.S. Const. Amend. I.

¹⁵ For a detailed discussion of Madison's views on the Establishment Clause and the history of its ratification, see Jason S. Marks, Only a "Speed Bump" Separating Church and State?, 57 J. Mo. Bar 36, 36-38 (2001).

¹⁶ Id. at 37-38.

¹⁷ 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).

¹⁸ Everson v. Board of Education, 330 U.S. 1, 8-16 (1947); id. at 31-44 (Rutledge, J., dissenting).

¹⁹ The majority reconciled its strong separationist language with its holding by characterizing the provision of bus transportation as a public benefit akin to police and fire protection, available to all citizens and having nothing to do with "the religious function" of any indirect sectarian beneficiary. Id. at 17-18.

²⁰ Board of Education v. Allen, 392 U.S. 236, 243-45 (1968).

²¹ Mueller v. Allen, 463 U.S. 388, 397-99 (1983).

²² See, Lemon v. Kurtzman, 403 U.S. 602 (1971)(invalidating statute authorizing salary supplement for teachers who taught secular subjects in religious schools); Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)(striking down "direct money grants" to parochial schools for maintenance and repair of school facilities and tuition reimbursements to parents of sectarian school students); Meek v. Pittenger, 421 U.S. 349 (1975) (invalidated law authorizing a loan program of instructional materials and equipment where principal beneficiaries were sectarian schools); Wolman v. Walter, 433 U.S. 229 (1977) (statute substantively indistinguishable from Meek); Grand Rapids School District v. Ball, 473 U.S. 373 (1985) (struck down law subsidizing public school employees teaching remedial classes on secular subjects at religious schools).

²³ Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting).

²⁴ Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

²⁵ Agostini v. Felton, 521 U.S. 203 (1997).

²⁶ Mitchell v. Helms, 530 U.S. 793, 120 S. Ct. 2530 (2000).

²⁷ Ohio Rev. Stat. §§ 3313.974-3313.979 (West Supp. 2002).

²⁸ Ohio Rev. Stat. § 3313.976(A)(6) (West Supp. 2002).

²⁹ Ohio Rev. Stat. §§ 3313.976(a)(8), 3313.978(A) (West Supp. 2002).

³⁰ Id.

³¹ Ohio Rev. Stat. §3313.979 (West Supp. 2002).

³² Zelman, at 2461.

³³ See Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999); Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000).

³⁴ Zelman, at 2465.

³⁵ Id. at 2466. This jurisprudence consists of only three recent cases: Mueller v. Allen, 436 U.S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986); and Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

³⁶ Zelman, at 2467.

³⁷ Id. at 2472.

³⁸ Id. at 2473.

³⁹ Id. at 2481 (Thomas, J., concurring). In Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), a unanimous Court incorporated through the Fourteenth Amendment the Religion Clauses of the First Amendment. "The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."

⁴⁰ Zelman, at 2481(Thomas, J., concurring).

⁴¹ Id. at 2482.

⁴² Id. at 2484.

⁴³ Mitchell at 2556 (O'Connor, J., concurring in the judgment).

⁴⁴ Id. at 2560.

⁴⁵ Zelman,at 2473(O'Connor, J., concurring).

⁴⁶ Id. at 2474.

⁴⁷ Id. at 2476.

⁴⁸ Id. at 2478.

⁴⁹ Id. at 2485 (Souter, J., dissenting). "If 'choice' is present whenever there is any educational alternative to the religious school to which vouchers can be endorsed, then there will always be a choice and the voucher can always be constitutional, even in a system in which there is not a single private secular school as an alternative to the religious school." Id. at 2492. "The choice enquiry will be diluted to the point that it can screen out nothing, and the result will always be determined by selecting the alternatives to be treated as choices." Id. at 2493.

⁵⁰ Id.

⁵¹ Id.

⁵² Id. at 2501.

⁵³ Id. at 2502.

⁵⁴ Id. at 2485 (Stevens, J., dissenting).

⁵⁵ Id.

⁵⁶ Id.

⁵⁷ Id. at 2502 (Breyer, J., dissenting).

⁵⁸ Id. at 2508.

⁵⁹ Id. at 2507.

⁶⁰ Id.

⁶¹ Id.

⁶² Atkins v. Virginia, ___ S. Ct. ___, 00-8452 (U.S. 2002) (2002) (Scalia, J., dissenting).

⁶³ See, H.B. 1472, 89th General Assembly, 2nd Reg. Sess. (1998) (pilot program); H.B. 937, 90th General Assembly, 1st Reg. Sess. (1999) (pilot program); H.B. 1373, 90th General Assembly, 2nd Reg. Sess. (2000) (pilot program); S.B. 531, 90th General Assembly, 2nd Reg. Sess. (2000) (tax credit program); S.B. 592, 90th General Assembly, 2nd Reg. Sess. (2000) (tax credit program); S.B. 656, 90th General Assembly, 2nd Reg. Sess. (2000) (tax credit program); S.B. 735, 91st General Assembly, 2nd Reg. Sess. (2002) (tax credit program).

⁶⁴ 163 S.W.2d 609 (Mo. banc 1942).

⁶⁵ Id. at 610.

⁶⁶ Id. at 611.

⁶⁷ Id. at 612.

⁶⁸ Id. at 613-14.

⁶⁹ Id. at 614. Berghorn v. Reorganized School Dist. No. 8, 260 S.W.2d 573 (Mo. 1953).

⁷⁰ 258 S.W.2d 927 (Mo. banc 1953).

⁷¹ See, Everson, 330 U.S. 1 (1947).

⁷² McVey, at 933-34.

⁷³ 512 S.W.2d 97 (Mo. banc 1974).

⁷⁴ See Board of Educ. v. Allen, 392 U.S. 236 (1968).

⁷⁵ Paster, at 101-02.

⁷⁶ Id. at 104.

⁷⁷ 544 S.W.2d 556 (Mo. banc 1976).

⁷⁸ Id. at 559.

⁷⁹ Id.

⁸⁰ Id. at 560.

⁸¹ Id. at 564.

⁸² Wamble v. Bell, 598 F.Supp. 1356, 1360-61 (W.D. Mo. 1984).

⁸³ Id. at 1362.

⁸⁴ Id. at 1365, 1366.

⁸⁵ Id. at 1362.

⁸⁶ 578 N.W.2d 602 (Wis. 1998).

⁸⁷ Id. at 643.

⁸⁸ Id. at 643-44.

⁸⁹ Id. at 646.

⁹⁰ Id. at 649.

⁹¹ 711 N.E.2d 203 (Ohio 1999).

⁹² Id. at 211.

⁹³ Id.

⁹⁴ Id. at 211-12.

⁹⁵ Id. The Lemon test upholds a statute under an Establishment Clause challenge if it meets the following three conditions: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an 'excessive government entanglement with religion.'" Lemon at 612-13.

⁹⁶ Id.

⁹⁷ 972 P.2d 606 (Ariz. 1999).

⁹⁸ Id. at 617.

⁹⁹ Id. at 620.

¹⁰⁰ 7384 A.2d 539 (Vt. 1999).

¹⁰¹ Id. at 342.

¹⁰² Holmes v. Bush, Case No. CV99-3370 (Final Summary Judgment Order) (Fla. 2nd Judicial Circuit, Leon County, August 5, 2002).

¹⁰³ Fla. Stat. §1002.38 (2002).

¹⁰⁴ Holmes at 3-4.

¹⁰⁵ Id. at 5.

¹⁰⁶ Northern Securities Company v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).

¹⁰⁷ See, Zelman at 2499 (Souter, J., dissenting).

¹⁰⁸ See, Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977); Keller v. State Bar of Cal., 496 U.S. 1 (1990).