Liberals Versus Religion

THE UNITED STATES Supreme Court's 5-4 decision in Zelman v. Simmons-Harris upholding the constitutionality of the Ohio school voucher program was not really as close as it seems, at least not if the quality of the constitutional arguments of the majority is weighed against the quality of the arguments of the minority. As in sports, the final score can be deceiving. But the tendencies of the bad arguments employed by the dissenters are revealing.

Commonly, progressives or left-liberals criticize conservative judges for elevating abstract principle and formal rules over the real-life situations of the disadvantaged. Yet in their dissents, Justices Stevens, Souter, and Breyer displayed an aversion to people's actual choices in favor of choices made by the federal government, a strong preference for rigid principle over concrete political reality, and a strange solicitude for speculative future harm to the body politic at the expense of manifest actual harm to flesh and blood low-income citizens in the here and now. Since such tendencies seldom play so prominent a role in the thinking of the more liberal justices--who are more likely to emphasize context, pragmatic considerations, and substantive justice, particularly for the least well off in society--what brought these tendencies to the fore in the case of school choice?

Judging by the intellectual inadequacies and overheated rhetoric of the dissents, the answer, I think, is anti-theological ire.

The majority opinion, written by Chief Justice Rehnquist and joined by Justices O'Connor, Scalia, Kennedy, and Thomas, is relatively straightforward. As a response to Cleveland's failed public schools, among the very worst in the nation, Ohio crafted a school choice program. The program gives low-income urban parents a variety of options for the education of their children, including cash vouchers that parents can use if they wish to send their children to participating public schools, or participating private schools, religious or secular.

Of the parents who chose the voucher option in the 1999-2000 school year, 96 percent chose to send their children to religious private schools. But the families who chose the voucher option--about 3,700--represent only about 5 percent of the more than 75,000 eligible Cleveland families; the rest chose other options offered by the program, including community schools, magnet schools, and remaining in public schools and receiving tutorial aid from the state.

The majority opinion held that the Ohio program and those like it are constitutional, and do not violate the Establishment Clause of the First Amendment, so long as they are neutral in respect to religion and permit parents to exercise "true private choice." Private choice is truly exercised when "government aid reaches religious schools only as a result of the genuine and independent choices of private individuals." Because of the variety of options that Ohio offers Cleveland schoolchildren and their parents, no reasonable observer, held Rehnquist, could view the program as advancing or endorsing religion. In choosing to use vouchers to send their children to religious schools, Cleveland parents, stressed Justice Thomas in his concurrence, were exercising their fundamental liberty to educate their children as they deem best.

The dissenters disagreed vehemently. But among themselves they agreed that the harsh realities and unquestioned harms suffered by low-income, mostly minority schoolchildren in Cleveland should not be allowed to override the hallowed principle of strict separation of church and state for which, they asserted, the Establishment Clause has always stood.

In his dissent, Justice Stevens showed his unyielding allegiance to the principle of strict separation by going so far as to argue that the magnitude of the educational deprivation suffered by the Cleveland students and the complexity and indirectness of the interaction between church and state in the challenged program (of which the majority made much) had no bearing on the Ohio program's constitutionality.

Never mind "the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program," wrote Stevens. Never mind "the wide range of choices that have been made available to students within the public school system" (italics in the original). And never mind "the voluntary character of the private choice to prefer a parochial education over an education in the public school system." What was absolutely decisive in Justice Stevens's mind, and what rendered the "Court's decision profoundly misguided," was that in violation of the Establishment Clause, it "authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths."