Spackle for the Wall? Public Funding for School Vouchers After Locke v. Davey
by Jason S. Marks1
Two years ago, in Zelman v. Simmons-Harris,2 a deeply divided United States Supreme Court held that government-funded school voucher programs that are "neutral with respect to religion" - i.e., equally inclusive of secular and sectarian institutions - do not violate the Establishment Clause of the First Amendment3 so long as religious schools receive public funds only as a result of the "genuine and independent private choice" of parents who elect to send their voucher-eligible children to religious schools.4 Zelman resolved the threshold issue of the federal constitutionality of "indirect"5 public funding of religious instruction; it did not address whether states such as Missouri, with constitutional provisions that explicitly prohibit even indirect funding of religious instruction, could exclude, consistent with the Free Exercise Clause of the First Amendment,6 religious schools otherwise eligible to participate in a voucher program.
In its recently completed 2003-2004 term, the Supreme Court in Locke v. Davey7 held that the state of Washington, in establishing a generally available college scholarship program, did not violate the Free Exercise Clause by following its state constitutional prohibition of public funding of religious instruction by excluding from eligibility students pursuing degrees in devotional theology.
Locke involves the same collision of seemingly competing and conflicting constitutional concerns that animates the broader question of the right of a state, such as Missouri, to enforce a stricter separation of church and state than that presently controlling the First Amendment: What limits does the Constitution impose on a state's discretion to selectively fund public, private and sectarian education? Can a state choose not to fund religious instruction without committing viewpoint discrimination? Does the choice between receipt of public funds and the pursuit of a religious education amount to an unconstitutional condition on the exercise of a First Amendment right? How the Court in Locke answered these questions will delimit the extent to which states considering school voucher programs can, or must, include sectarian schools whose curriculum includes the inculcation of a particular religious belief or practice.
I. Unconstitutional Conditions and Free Exercise
To begin to place the issues in Locke v. Davey in context, one must first examine the multiple constitutional doctrines it entangles. More than 40 years ago, in Sherbert v. Verner,8 the Supreme Court stated that the "door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such. Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities."9 Sherbert involved the denial of unemployment benefits to a Seventh-Day Adventist because she refused to work on Saturdays, the Sabbath day of her faith. The Court described the bind the denial of benefits placed upon the religious adherent:
The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.10
The Court found in favor of the religious employee, for "to condition the availability of benefits upon [her] willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties."
11 In a concurring opinion, Justice Douglas expressed his view that the "fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."
12 Other than in the receipt of unemployment benefits,
13 the Court has applied the "unconstitutional conditions" doctrine in only three other circumstances - where a state conditioned a notary commission on affirming a belief in God,
14 where a state conditioned a property tax exemption on swearing an oath not to advocate the overthrow of the government,
15 and where a state barred a Baptist minister from serving as a delegate to a state constitutional convention.
16 Consequently, the Court itself has stated that the "unconstitutional conditions" doctrine only involves "situations in which the government has placed a condition on the
recipient of [a] subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the [government] funded program."
17
II. To Fund or Not to Fund - Free Exercise
Justice Douglas in Sherbert foreshadowed the debate in the government funding cases - whether the government has an affirmative obligation to facilitate the exercise of a constitutional right, rather than restrain itself from interfering in the exercise of that right. In every situation, the Court has answered this question in the negative.18
The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.19
Though the government funding choice may make the exercise of a constitutional right practically impossible for certain classes of people - as when it chooses not to extend Medicaid benefits for non-therapeutic abortions, or to choose not to fund artists whose works fail to meet general standards of decency - because it does not explicitly prohibit the constitutionally protected activity, it does not run afoul of the Constitution. Indigent women and starving artists still have the unfettered opportunity to pursue, respectively, a legal abortion procedure or the display of indecent art - they simply must secure funds other than public aid to facilitate their intentions.
III. Viewpoint Discrimination or "Play in the Joints"?
Selective government funding has its limitations. For example, in Regan v. Taxation With Representation, a funding case involving the tax-exempt status of a political lobbying organization, the Court had little difficulty affirming the federal government's right to deny tax-exempt status to all lobbying organizations.20 However, the Court indicated that a different result would be warranted if the denial targeted the organization specifically or as a member of a class defined by its particular political beliefs - what would amount to a patent form of viewpoint discrimination.21 Consequently, in Rosenberger v. Rector and Visitors of Univ. of Virginia,22 the Court stressed that "ideologically driven attempts to suppress a particular point of view are presumptively unconstitutional in funding, as in other contexts."23 Rosenberger involved the decision of the University of Virginia not to reimburse a student organization for printing costs associated with the group's publications because of their classification as a "religious activity" organization. Though the university excluded from reimbursement all religious groups, and did so in an effort to avoid public subsidies of religion, the Court found the school policy an unconstitutional form of viewpoint discrimination.24 Notably, the Court premised its decision in Rosenberger on the university having created a public forum by choosing to fund student publications, seemingly limiting Rosenberger to a free speech case, not a free exercise case.25
While the Court has interpreted the Free Exercise Clause generally to prohibit "[o]fficial action that targets religious conduct for distinctive treatment,"26 the Establishment Clause might require distinctive treatment. In Walz v. Tax Commission of the City of New York,27 the Court confronted directly the seemingly conflicting demands of the Establishment and Free Exercise Clauses in the context of alleged religious discrimination. Walz involved the decision of the New York City Tax Commission to grant property tax exemptions to religious organizations that own properties used solely for religious worship. A taxpayer sought to enjoin these exemptions, arguing they required him to indirectly subsidize religion in violation of the Establishment Clause. The beneficiaries of the tax exemptions countered that exacting a property tax translates into a tax on religious practices in violation of the Free Exercise Clause. The Court noted it "has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other."28
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.29
In examining the Free Exercise component, the Court noted that "[g]rants of exemption historically reflect the concern of authors of constitutions and statutes to the latent dangers inherent in the imposition of property taxes; exemption constitutes a reasonable and balanced attempt to guard against those dangers."
30 As for the Establishment component, the Court found that "[t]he grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state."
31 With the two clauses in equilibrium, the Court upheld the property tax exemptions - demonstrating that religious groups may in fact require distinctive treatment in order to avoid Establishment concerns.
IV. State Constitutions and the Separation of Church and State
In addition to the constitutional doctrines described above, Locke also highlights an often overlooked point in the history of religious freedom in this country: Many states, through their constitutions and judicial decisions, actively seek to enforce a stricter and more explicit separation of church and state than that afforded by the federal constitution. Missouri has long been one of those states. In its original constitution, Missouri provided for a broad conception of the rights of conscience, including "that no man can be compelled to erect, support or attend any place of worship, or to maintain any minister of the gospel, or teacher of religion."32 In its second constitution, immediately after the Civil War, Missouri maintained the compelled support provision and added an additional clause: "That no preference can ever be given, by law, to any church, sect, or mode of worship."33 In its third constitution, Missouri added yet another clause cementing a solid wall between public funds and sectarian institutions: "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."34 These provisions remain a part of the state's current constitution.35 In choosing to "erect a higher wall between church and state than exists under the federal Constitution," Missouri, as with the majority of the states,36 has effected its citizenry's "belief that government support of religious activities is, ultimately, damaging both to religion and government," a harm that includes the "significant governmental concern over compelling citizens to subsidize religious beliefs and practices with which they may stridently disagree."37 Whether Missouri can continue to do so consistent with the federal constitution was squarely before the Court in Locke.
V. When a Promise is Not a Promise: Locke v. Davey
In 1999, to increase the higher education opportunities for residents lacking the financial means to pay for post-secondary education, the state of Washington established the Promise Scholarship program.38 The program offers eligible students scholarships to "offset any education-related expense, including [tuition and] room and board."39 To be eligible for the program, a student must graduate from a Washington public or private high school and either rank in the top 15% of the graduating class or score 1,200 or above on the SAT I or 27 or above on the ACT.40 Additionally, the student's family income must not exceed 135% of the state's median family income.41 Finally, the student must enroll "at least half time in an eligible post secondary institution in the state of Washington."42 However, "[n]o aid shall be awarded to any student who is pursuing a degree in theology."43 The state added this proviso in accordance with Article I, § 11 of the Washington Constitution, which provides that "[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction."44 The scholarship may be used at any accredited institution, public or private, even those with sectarian affiliations.45 Once an eligible student enrolls at a qualifying institution, the institution must determine whether the student (a) has enrolled at least half time and (b) is not pursuing a degree in devotional theology. Students meeting these two requirements receive the scholarship through the qualifying institution.46
Joshua Davey received a Promise Scholarship and chose to attend Northwest College, a private Christian institution affiliated with the Assemblies of God, and an eligible institution under the Promise Scholarship Program.47 Upon enrollment, Davey decided to pursue a double major in pastoral ministries and business administration. Majoring in pastoral ministries at Northwest College prepares "students for a career as a Christian minister. Classes are taught from a viewpoint that the Bible represents truth and is foundational," in contrast to theology courses at public post-secondary institutions "taught from an historical and scholarly point of view."48 Davey's choice of major indisputably qualified as a degree in devotional theology, and the state of Washington disqualified Davey from receiving Promise Scholarship funds.49 Davey filed a civil rights suit in federal district court, alleging that denial of his scholarship proceeds violated the Free Exercise, Establishment and Free Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.50 The district court granted summary judgment in favor of the state of Washington.51 On appeal, a divided panel of the Ninth Circuit Court of Appeals reversed the order of the district court.
The majority concluded "Davey was denied a Promise Scholarship to which he was otherwise entitled solely because he personally chose to pursue a religious major," a prima facie act of government discrimination in violation of the Free Exercise Clause subject to strict scrutiny.52 In analyzing the government's proffered reasons for the devotional theology exclusion, the majority found them "less than compelling," particularly in light of Zelman, as any indirect funding of a sectarian institution for non-secular study would not occur "unless an individual recipient were to make the personal choice to major in a subject taught from a religious perspective, and then only to the extent that the proceeds are used for tuition and are somehow allocable to the religious major."53 The majority could not "see how any reasonably objective observer could believe that the state was applying state funds to religious instruction or to support any religious establishment by allowing an otherwise qualified recipient to keep his Scholarship."54
The dissent considered the controversy "a funding case, not a free exercise case or a free speech case," and that "in an effort to maintain the separation between church and state, the state decided that it has no obligation to financially support a student to become a minister."55 The dissent rejected any application of the "unconstitutional conditions" doctrine, as "Davey was still able to pursue his chosen major in the absence of funding," and he "would be hard-pressed to argue that" the applicable provision of the Washington constitution "has the unintended effect of suppressing his religious exercise."56 Seizing upon the reasoning of the funding cases, the dissent noted that though "Davey has a constitutionally protected right to exercise his religious beliefs, including a decision to be a pastoral studies major," the state of Washington "has no obligation to fund that religious pursuit, even when it has chosen to fund other educational pursuits."57 Pointedly, the dissent concluded that "[t]he state's decision not to fund religious education does not deprive Davey of his chosen profession or his ability to practice his religion without restriction."58
The Supreme Court granted certiorari and, by a surprising margin of 7-2, reversed the Court of Appeals. Chief Justice Rehnquist authored the majority opinion, which Justices Stevens, O'Connor, Kennedy, Souter, Ginsberg and Breyer joined in full. The Chief Justice began by noting that "the Establishment Clause and the Free Exercise Clause[ ] are frequently in tension."59 Citing the "play in the joints" language from Walz, he noted that "there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause."60 He described the burden upon Davey's free exercise rights in minimalist terms:
In the present case, the State's disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.61
Chief Justice Rehnquist directly addressed the question of whether the state had discriminated against Davey because of his religious pursuit by stating that "training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor."
62
And the subject of religion is one in which both the United States and state constitutions embody distinct views - in favor of free exercise, but opposed to establishment - that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion.63
The Chief Justice proceeds to put this point in historical context, referring both to Thomas Jefferson's
A Bill for Establishing Religious Freedom and James Madison's
Memorial and Remonstrance Against Religious Assessments.
64 Notably, he cited the predominance of prohibitions against compelled support of religion in the state constitutions at the time of the founding and asserted "[t]hat early state constitutions saw no problem in explicitly excluding
only the ministry from receiving state dollars reinforces the conclusion that religious instruction is of a different ilk."
65 The Chief Justice closed by stating, "If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington."
66
Justice Scalia, joined by Justice Thomas, dissented. He saw the issue through the lens of religious discrimination:
When the State makes a public benefit generally available, that benefit becomes part of the [baseline against which burdens on religion are measured]; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.67
The majority's "pure philosophical preference" to give the State of Washington's discriminatory practice constitutional approval in order to protect "taxpayers' freedom of conscience," in Justice Scalia's opinion, "has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context."
68 Rather than locate this case in the historical context of the ratification era, he chose to place this case in today's contemporary
zeitgeist.
Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State's policy poses no obstacle to practitioners of only a tepid, civic version of faith....One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.69
Rather than facially discriminate against a religious pursuit, the State, in Justice Scalia's opinion, "could respect both its unusually sensitive concern for the conscience of its taxpayers
and the Federal Free Exercise Clause" by making "the scholarships redeemable only at public universities, . . . or only for select courses of study."
70 Justice Scalia closed with an ominous tone: "When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression."
71
Locke may have been the most surprising ruling not simply of the most recent Court term, but of the entire Rehnquist era. Only two terms after collapsing the federal wall separating church and state, the same Court seems to have assented to a multiplicity of smaller but higher state walls of separation - a change of course so severe that it raises several serious questions. How could the Chief Justice, who for more than 30 years has propounded such a narrow and controversial reading of the religion clauses, author such a striking elegy for freedom of conscience?
72 One could suggest that he showed no inconsistency in his jurisprudence, addressed previously to the interpretation of the scope of the federal Constitution, but simply reaffirmed his longstanding belief in states' rights, including the right to effect a stricter separation of church and state than that guaranteed by the First Amendment. But how does one square that with the breadth of the opinion, including its affirmation of the views of Jefferson and Madison, which he has previously interpreted in a much different, and less flattering, light? How could someone who agreed that "hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow"
73 now refuse to inveigh against a statute that facially discriminates against religion? Has the Chief Justice undergone a separationist conversion? One must assume not - which makes his opinion in
Locke that much harder to fathom.
But neither is the dissent free from doctrinal inconsistency. Justice Scalia remained true to his belief that avowedly religious individuals should not be denied generally available public benefits because of Establishment Clause concerns, though at the same time he reaffirmed his belief that avowedly religious individuals may be burdened in their religious practice if they run afoul of neutral laws of general applicability.74 One may reconcile his Free Exercise interpretation as one of facial neutrality - he rejects any state action that on its face favors or disfavors religion. But one still is left asking how Justice Scalia can speak so passionately in favor of free exercise in the context of public aid for training for the Christian ministry, yet support making felons of Native Americans who have for centuries used peyote as a sacrament, a religious rite. Is he guilty of the same religious bigotry for which he assails the majority of the Court, if not the majority of the American populace?
The oral argument for Locke may hold the key to its outcome, and its impact on the ability of states to strictly enforce their constitutional prohibitions against any public funding, direct or indirect, for religious worship, instruction or education. The second question posed at oral argument, by Justice O'Connor, asked whether the Washington program was analogous to a voucher program.75 Justice Souter raised the distinction of a tuition voucher funding a theological education rather than a secular degree at a sectarian institution.76 When Davey's attorney began his argument, he engaged in a long colloquy with Justice O'Connor on whether ruling in favor of Davey would commit the Court to holding that voucher programs like those upheld in Zelman must include religious schools if they extend vouchers to any private schools.77 Justice O'Connor managed to get Davey's attorney to concede that his argument of facial neutrality would require the inclusion of religious schools in any voucher program that allowed for private school participation.78 Justice Breyer referred to the implications of ruling in favor of Davey as "breathtaking," impacting the way states allocate funds so that they cannot "be purely secular" and "they must fund all religions who want" to engage in the same activity.79
VI. The Future of "State Walls" and School Vouchers After Locke
It seems from the oral argument that a majority of the Court wanted to avoid extending Zelman to require the participation of religious schools in voucher programs - but did the decision in Locke achieve that goal? Locke could be read narrowly and held to its facts - the federal Constitution does not preclude states from choosing not to spend education funds on students preparing for the ministry. Yet the premises undergirding its holding seem equally applicable to school voucher programs - a taxpayer's freedom of conscience is no less offended by funding the religious education of an elementary or secondary student. Compelled support of religious instruction of children may seem to some a less patent violation of the separation of church and state than funding a minister's devotional education, but it is still a violation as a matter of logic and legal reasoning. Locke likely will be interpreted as giving to the states the discretion to include or exclude sectarian institutions in public aid programs, at least to the extent such programs would result in directing public funds to pay for religious instruction. Indeed, two courts have already interpreted Locke to allow states the freedom to strictly separate the public fisc from even indirect support for the advancement of religious doctrine.
In Bush v. Holmes,80 a majority of the Florida First District Court of Appeals, sitting en banc, held that the state's Opportunity Scholarship Program (OSP) violated article I, section 3 - the "no-aid" provision - of the state constitution.81 The OSP allows parents of students attending "failing" public schools to receive a voucher to attend an alternative school - including a religious school.82 The tuition voucher comes from funds in the state treasury, though the actual payment to the school takes place only when the parent endorses the voucher and gives it to the selected school.83 Under article I, § 3 of the Florida constitution, "[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."84 The appellate court traced the history of the amendment and concluded that "the drafters of the no-aid provision clearly intended at least to prohibit the direct or indirect use of public monies to fund education at religious schools."85 Further, the appellate court noted "that article I, section 3 necessarily imposes restrictions beyond the Establishment Clause" of the federal constitution.86 To hold otherwise "would require that court to ignore the clear meaning of the text of the provision and its formative history."87 The appellate court rejected any claim of discrimination under the Free Exercise Clause of the federal constitution by looking to Locke, noting that "nothing in the Locke opinion or the Washington Constitution limits its application" to pursuing a divinity degree, but rather expresses "a substantial state interest of prohibiting the use of tax funds 'directly or indirectly' to aid religious institutions."88 The en banc court certified the case to the Florida Supreme Court,89 which as of this writing will hear oral arguments in early June.
In Eulitt v. Maine Dept. of Ed.,90 the First Circuit Court of Appeals considered and rejected an Equal Protection challenge to a Maine voucher program that specifically excluded sectarian schools from participation. The first circuit took issue with plaintiffs' attempt to couch their challenge under the Equal Protection Clause, citing Locke as authority that "the Free Exercise Clause provides the primary framework for assessing religious discrimination claims."91 The appellate court read Locke "broadly" to stand for the proposition that "state entities, in choosing how to provide education, may act upon their legitimate concerns about excessive entanglement with religion, even though the Establishment Clause may not require them to do so."92 Further, "states are not required to go to the brink of what the Establishment Clause permits,"93 and "it would be illogical to impose upon government entities a presumption of hostility whenever they take into account plausible entanglement concerns in making decisions in areas that fall within the figurative space between the Religion Clauses."94
Bush and Eulitt, as well as Locke, involved constitutional provisions very similar to Mo. Const. art. I, § 7 - seemingly cementing the very high hurdle of enacting a voucher program in Missouri. However, in the recently concluded session of the General Assembly, a group of 89 legislators co-sponsored H.B. 639, a creative attempt to establish vouchers without confronting the fatal flaws of programs like the OSP in Florida. Modeled after a program in Arizona,95 the Missouri proposal would create "educational administrative organizations"(EAOs) - private, tax-exempt corporations whose sole purpose would be to make grants to qualifying students that could be used for tuition at public, private or parochial schools. Funding for the EAOs would come through tax-deductible donations by private contributors. Critically, schools that lose students through vouchers also lose state funding under the formula set out in § 163.036, RSMo.
Though the legislation failed to make it to a floor vote this past session, given its level of sponsorship, it could receive more attention in the next legislative session. Consequently, it seems important to examine whether such a system could withstand constitutional scrutiny. In Curchin v. Mo. Ind. Dev. Bd.,96 the Supreme Court of Missouri held that "the allowance of a tax credit constitutes a grant of public funds," as "[t]here is no difference between the state granting a tax credit and foregoing the collection of the tax and the state making an outright payment to [a private recipient] from revenues already collected."97 With this precedent, it would seem that the tax credit used to fund a private voucher program would be monies "taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion," in violation of art. I, § 7, in that some of the vouchers end up financing tuition for some students at sectarian schools.98 Indeed, the tax credit could be construed as state action creating an incentive to support sectarian education. The proposed legislation also punishes schools that lose voucher students by decreasing their funding in direct proportion to the tuition given to private schools - a sanction that violates art. IX, § 5 of the state constitution. Hence, the use of a tax credit-funded voucher system seems to violate numerous provisions of the state constitution.
VII. Conclusion
As a matter of constitutional law, it seems ironic that the First Amendment, long seen as erecting if not a solid, at least a minimally porous wall between church and state, offers far less protection of our "first freedoms" than the various constitutions of the majority of the states - particularly in an era that has seen the federalization of constitutional rights not explicitly enumerated in the text of the Bill of Rights. But such is the present law of the land - religious liberty, including the prohibition against compelled support of any faith, rests in the fading but ever vital parchments of individual states, some of which have a policy of separation co-extensive with the federal Constitution, but most of which have walls of varying heights separating the private realm of conscience and the public realm of funding and taxation. Missouri, with its long history of strict separation of church and state, can continue to provide its citizens an unwavering freedom of conscience, a freedom that includes the exclusion of sectarian institutions in any otherwise generally available state-funded school voucher programs, absent some bifurcation of the funding, housing and teaching of secular and religious instruction in a sectarian school. Citizens of other states, with lower walls of separation, likely will receive less respect for the freedom of conscience.
Zelman and Locke have produced this anomalous circumstance - a republican confederation of separationist and preferentialist fiefdoms - that has troubling implications for areas beyond education, notably the privatization of social welfare programs and the extent "faith-based initiatives" may be part of the public delivery of social services. They may also impact the extent to which religious observance or affirmation becomes part of our civic life. Unless and until the Supreme Court returns to its original interpretation of the religion clauses, we can expect many new internecine battles between religious sects and the public fisc - perhaps not in Missouri, but in other states and, ultimately, once again, in the Supreme Court.
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.
2 536 U.S. 639 (2002).
3 The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion," U.S. Const. Amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Supreme Court unanimously incorporated the Establishment Clause through the Fourteenth Amendment, making it equally binding upon state governments as the federal government.
4 Zelman, at 640 (plurality opinion); at 663 (O'Connor, J., concurring). For a detailed analysis of Zelman, see Jason S. Marks, What Wall? School Vouchers and Church-State Separation After Zelman v. Simmons-Harris, 58 J. Mo. Bar 354 (2002).
5 Whether the funneling of millions of public dollars to sectarian institutions to support religious instruction that follows from voucher programs like the one at issue in Zelman is the product of intervening independent actions of parents rather than an essentially sophistic formalism remains a highly disputed issue. See, Marks, What Wall?, note 4 at 356-58.
6 The Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. U.S. Const. Amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Supreme Court unanimously incorporated the Free Exercise Clause through the Fourteenth Amendment, making it equally binding upon state governments as the federal government.
7 540 U.S. 712 (2004).
8 374 U.S. 398 (1963).
9 Id. at 402. (Emphasis in original).
10 Id. at 404.
11 Id. at 406.
12 Id. at 412 (Douglas, J., concurring). Justice Douglas seemed to appreciate that, in the First Amendment context, reading the Free Exercise Clause to require funding a religious activity would patently violate the essence of the Establishment Clause. See, Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988).
13 See, Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981).
14 Speiser v. Randall, 357 U.S. 513 (1958).
15 Torcaso v. Watkins, 367 U.S. 488 (1961).
16 McDaniel v. Paty, 435 U.S. 618 (1978).
17 Rust v. Sullivan, 500 U.S. 173, 197 (1991).
18 Maher v. Roe, 432 U.S. 464 (1977) (no right to Medicaid funding for medical services incident to constitutionally protected right to non-therapeutic abortions); Harris v. McRae, 448 U.S. 297 (1980) (no right to Medicaid funding for medical services incident to constitutionally protected right to medically necessary abortions); Regan v. Taxation With Representation, 461 U.S. 540 (1983) (no right to tax exempt status for non-profit organizations engaged in constitutionally protected lobbying activities); Rust, 500 U.S. 173 (1991) (no right to federal funds to engage in constitutionally protected family planning services related to abortion); National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (no right to federal funds for artists whose works do not meet general standards of decency); United States v. American Library Ass'n, 539 U.S. 194 (2003) (no right to federal funds to pay for unfiltered access to the Internet).
19 Rust, 500 U.S. at 193.
20 Regan, 461 U.S. at 541.
21 Id. at 548.
22 515 U.S. 819 (1995).
23 Id. at 830.
24 Id. at 831-32.
25 See, Jason S. Marks, Only a "Speed Bump" Separating Church and State?, 57 J. Mo. Bar 36, 41 (2001).
26 Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 534 (1993).
27 397 U.S. 664 (1970).
28 Id. at 668-69.
29 Id. at 669.
30 Id. at 673.
31 Id. at 675.
32 Mo. Const. of 1820, art. XIII, § 4.
33 Mo. Const. of 1865, art. I, § 11.
34 Mo. Const. of 1875, art. II, § 7.
35 Mo. Const. Art. I, §§ 6 and 7.
36 In addition to Missouri, 32 other states have constitutional provisions prohibiting "compelled support" of religious institutions.
37 Brief Amici Curiae of the States of Vermont, Massachusetts, Missouri, Oregon and South Dakota and of the Commonwealths of the Northern Mariana Islands and Puerto Rico On Behalf of Petitioners Gary Locke, et al. at 25, available at http://pewforum.org/school-vouchers/locke/Vermont.pdf (last visited May 17, 2005).
38 Davey v. Locke, 299 F.3d 748, 750 (9th Cir. 2002).
39 Id. at 751.
40 Wash. Admin. Code § 250-80-020(12) (2003).
41 Id.
42 Id.
43 Wash. Rev. Code § 28B.92.100 (2004).
44 Wash. Const. art. I, § 11.
45 Wash. Admin. Code § 250-80-020(13) (2003).
46 Wash. Admin. Code § 250-80-060 (2003).
47 Davey v. Locke, 299 F.3d at 751.
48 Id.
49 Id.
50 Id. at 750.
51 Id. at 751-52.
52 Id. at 758.
53 Id. at 760.
54 Id.
55 Id. at 761 (McKeown, J., dissenting).
56 Id. at 762.
57 Id. at 764.
58 Id.
59 Locke v. Davey, 540 U.S. at 718.
60 Id. at 719.
61 Id. at 720-21.
62 Id. at 721.
63 Id.
64 Id. at 722, 725. For more on the views of Jefferson and Madison, see Marks, Only a "Speed Bump" Separating Church and State?, note 26 at 37-38.
65 Locke, 540 U.S. at 713 (emphasis in original).
66 Id. at 725.
67 Id. at 726-27 (Scalia, J., dissenting) (brackets in original).
68 Id. at 730.
69 Id. at 733.
70 Id. at 729.
71 Id. at 734.
72 See, Marks, Only a "Speed Bump" Separating Church and State?, note 26 at 40-43; Marks, What Wall?, note 4 at 355-56.
73 Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (joined by Rehnquist, C.J.)
74 Locke, 540 U.S. at 730 (Scalia, J., dissenting), citing Employment Div., Dept. Of Human Resources of Ore. v. Smith, 494 U.S. 872, 885 (1990) (majority opinion authored by Scalia, J.) ("The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'").
75 Transcript of Oral Argument in Locke v. Davey (December 2, 2003) at 4, available at www.supremecourtus.gov/oral_arguments/argument_transcripts/02-1315.pdf (last visited May 17, 2005)..
76 Id. at 7.
77 Id.
78 Id.
79 Id. at 51-52.
80 886 So.2d 340 (Fla. Dist. Ct. App. 2004) (en banc).
81 Id. at 344. Five judges joined the plurality opinion, five judges dissented, and one judge concurred with the rationale that the provision at issue violated art. I, § 3, but would have saved the OSP by severing those portions that involved sectarian institutions.
82 Id. at 347.
83 Id.
84 Id.
85 Id. at 351.
86 Id.
87 Id. at 358.
88 Id. at 365.
89 Id. at 367.
90 386 F.3d 344 (1st Cir. 2004).
91 Id. at 354.
92 Id. at 355.
93 Id.
94 Id.
95 The program was analyzed by the Arizona Supreme Court in Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999). For a discussion of Kotterman, see Marks, What Wall?, note 4 at 360-61.
96 722 S.W.2d 930 (Mo. banc 1987).
97 Id. at 933.
98 The proposed legislation would also run afoul of Mo. Const. art. IX, § 8, which prohibits the appropriation of any public funds "to help to support or sustain any private or public school . . . controlled by any religious creed, church or sectarian domination whatever."
JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 3 - May-June 2005