Tuesday, May 20, 2003

Voucher Wars Part II

University of Notre Dame Law Professor, Richard Garnett, writing in National Review Online, has one of the best explanations I've seen of the significance of the Supreme Court's decision yesterday to hear the Davey v. Locke school choice case.

The other shoe is about to drop in the voucher wars. After ruling last year, in the Zelman case, that communities and governments are not required by the Establishment Clause to exclude religious schools from their school-choice experiments, the United States Supreme Court has now agreed to decide whether such exclusion is permitted by the Constitution. Under the leadership of Chief Justice Rehnquist, the Court has made it increasingly clear that the First Amendment forbids "viewpoint discrimination" in the administration of public-welfare programs, and also that religious believers and institutions may not be singled out for special disadvantages and burdens. In Davey v. Locke, though, the justices will confront provisions of Washington state law that appear to do just that. . . .

Now, at first blush, Davey might seem like just another "federalism" case, and Washington's no-aid provision might look like just another example of devolution in action. And didn't Justice Brandeis once note — in a passage dear to the heart of localists everywhere — that "it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country"? So, why shouldn't the State of Washington be allowed to part company with the Supreme Court, and provide its citizens with greater protection from religious establishments and entangling church-state alliances?

Not so fast. "Novel social and economic experiments" are well and good, but it is the Constitution that is the "supreme Law of the Land." State constitutions may neither authorize nor permit that which the Constitution of the United States forbids.

Garnett predicts that the Supremes will find in favor of allowing students, through their individual choices, to use college aid in Washington for religious studies and put an end to the Catholic bigotry that many state constitutions embrace. He writes, "It remains the fact that the no-aid provision of Washington's Constitution, and many other provisions like it, are continuing monuments to the claim, which once held sway in the salons of elite opinion, that Catholics, to the extent they remain Catholics, are suspect as Americans. And, as Justice Thomas wrote, a few years ago in Mitchell v. Helms, "[t]his doctrine, born of bigotry, should be buried now.""

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