Facts About Vouchers
Recent Legal Battles
The legal landscape concerning vouchers changed on June 27, 2002, when the United States Supreme Court ruled 5-4 in Zelman v. Simmons-Harris that it is not a violation of the federal Constitution for a publicly-funded voucher program to include religious schools.4 This ruling, which provoked harsh dissents, came in a case involving the Cleveland voucher program, which had been struck down by the lower federal courts as a violation of the Establishment Clause. Although the Supreme Court reversed those rulings, allowing public funds to be used to support religious education through a voucher program, in our view, this is inconsistent with a proper interpretation of the First Amendment. As Justice Souter stated in his dissenting opinion, joined by the three other dissenters, the majority’s ruling was a “dramatic departure from basic Establishment Clause principle.”5 According to the dissenters, “every objective underlying the prohibition of religious establishment is betrayed by” the voucher program.6
The Court’s decision in Zelman does not provide the final word on the legality of voucher programs that include religious schools. While the ruling permits a state to include religious schools in a voucher program, it does not require such inclusion. Many state constitutions contain provisions that are far more explicit than the Establishment Clause in prohibiting the use of public funds to support or aid religious institutions, and voucher programs that include religious schools may well violate those provisions. Indeed, not long after the Court’s ruling in the Cleveland case, a trial court in Florida ruled that the Florida voucher program violates the provision of the state Constitution providing that no public funds can be used “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.”7 And in 1999, the Vermont Supreme Court ruled that state payments for religious school tuition would violate the religious liberty provisions of the state Constitution.8
In the wake of Zelman, voucher supporters have trained their sights on state constitutional provisions barring public aid to religious institutions (often called “Blaine Amendments”), and are now attempting to undermine these prohibitions. One argument that has been made is that these provisions were adopted in response to anti-Catholic bias during the late 19th century and should therefore be invalidated. In fact, the historical record belies this simplistic view and demonstrates that genuine concerns about church-state separation were an important reason for such provisions.