How School Vouchers Can Win In The Supreme Court - Distinguishing 'What' From 'How' in Aid To Religious Schools
Nathan Lewin
(Continuation)

From page one

3. The Lemon Test

Perhaps the most formidable obstacle to programs that provide aid to students in religious schools has been the three-pronged "Lemon test." As was noted at the outset of this paper, the Court purported in Lemon to synthesize the "cumulative criteria developed by the Court over many years" into a three-pronged analytical test for programs challenged as unconstitutional "establishments" of religion: (1) The challenged statute or program must have a secular legislative purpose; (2) its "principal or primary effect" must be one that "neither advances nor inhibits religion"; and (3) it must not result in "excessive government entanglement with religion." 403 U.S. at 612-613.

The first "prong" has always proved easy for aid-to-religious-school programs to satisfy. In case after case — Lemon, Nyquist, Meek, Wolman — programs have foundered against the second and third parts of the test. In the opinion of many commentators and, indeed, several Justices, the Lemon "test" is not a test at all, but is actually an after-the-fact rationale employed by the Court to justify the result it chooses for other reasons, including a flimsily masked antipathy on the part of several Justices toward religious schools. As Justice Antonin Scalia has remarked, "[w]hen we wish to strike down a practice [the Lemon test] forbids, we invoke it, . . . when we wish to uphold a practice it forbids, we ignore it entirely." Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 399 (1993) (concurring opinion).

Even in post-Lemon cases where the Court has upheld aid to religious schools, it has nonetheless felt obliged to march through the test’s three steps. Thus, in Mueller, Justice Rehnquist discussed the fact that benefits under the challenged aid program were available directly to all parents, on the basis of neutral criteria, whether their children attended public, private, or religious schools, and so concluded that the program satisfied the "primary effect" prong of the Lemon test. 463 U.S. at 396-402. And Justice Marshall, in upholding Mr. Witters’ use of state aid in his religious studies, also labored to structure his reasoning around the test’s three prongs. Of course, on the same facts, different sets of Justices might well have concluded otherwise in both these cases. "Primary effect" and "excessive entanglement" are, it seems, in the eye of the beholder.

Today, however, the status of the Lemon test is not so clear. The case continues to be cited, but many have concluded that "Lemon is dead." There is ample support for this view. In Lee v. Weisman, 505 U.S. 577 (1992), the Court held unconstitutional, as an establishment of religion, a nondenominational prayer at a high school graduation, without applying Lemon. Nor did Chief Justice Rehnquist apply or even cite the test in Zobrest. Instead, he simply concluded that the program in that case was more like those upheld in Witters and Mueller than like those struck down in Ball, Meek, and Nyquist. The Court did apply the Lemon test, albeit perfunctorily and in one sentence, that same year in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), holding that a public school district could not deny a church group access to a public school’s facilities for the purpose of a religious film series. 508 U.S. at 395. This prompted Justice Scalia to make the earlier quoted comparison of Lemon to a "ghoul in a late-night horror movie." 508 U.S. at 398 (concurring opinion).

In Agostini v. Felton, the Court majority did not exorcise the Lemon ghoul, but it did at least hack off one of its limbs. The question whether a program creates an "excessive entanglement" between government and religion has apparently been demoted in status, from a separate "prong" of the test to a mere "aspect" of the inquiry into the program’s "effect." An "excessive entanglement" is now one that has the "effect" of "advanc[ing] or inhibit[ing] religion." 117 S. Ct. at 2015. Agostini was, to be sure, a close 5-to-4 decision, and the last 50 years have shown that much of the Court’s jurisprudence in this area depends on the particular Justices in any given majority. But even Justice Souter, who wrote the dissent in Agostini, did not feel the need to argue that New York’s Title I program violated the Lemon test. Instead, he contended that the program violated "two central tenets of Establishment Clause jurisprudence" by "subsidiz[ing] religion directly" and by acting "in a way that could reasonably be viewed as religious endorsement." 117 S. Ct. at 2020 (dissenting opinion).

Agostini was a missed opportunity for the Supreme Court. It could have interred Lemon once and for all, but it failed to do so. A reasonable observer reading Agostini could conclude that the Lemon test is no longer a meaningful gauge of how the Supreme Court will decide a particular case — and surely not a useful test for arguing the constitutionality of a voucher program. Nonetheless, the conventions of constitutional law require that the Lemon test be addressed in briefs and oral argument in any case involving Establishment Clause issues.

4. Two Different Constitutional Theories

This overview of Supreme Court cases reveals that the programs providing public aid to religious schools considered by the Supreme Court over the past 50 years have relied on two discrete constitutional theories:

(a) What is being funded?

The first approach, illustrated by the Everson, Allen, and Tilton cases, focused on the nature of the activity that was financed or, putting it in a slightly different way, on the content of the government aid. For example, when a school district decides to reimburse parents for the cost of bus transportation or to loan secular textbooks to students attending religious schools, public funds are necessarily used only to support conduct that is incontestably secular. Such services are "self-policing, in that starting as secular, nonideological and neutral, they will not change in use." Meek, 421 U.S. at 365. The contents of a particular secular textbook are fixed; the book remains a secular book no matter where or by whom it is read. To the extent that the Establishment Clause prohibits public funds to be spent on religious activity or teaching, the government agency can defend its payments for bus transportation or its purchase of secular books loaned to religious schools because no public money is being spent "for religion." Rather, the funds are being used to purchase incontestably secular services and materials.

To be sure, an argument can be made — and it often is — that by relieving the religious school of its own need to purchase these secular services, the government agency frees up the religious school’s money for the purchase of materials or services needed for religious instruction, materials that, it is assumed, the government could not purchase directly. See, e.g., Ball, 473 U.S. at 396-397; Meek, 421 U.S. at 365-366; Nyquist, 413 U.S. at 775. But this claim — that there is an indirect benefit provided to religion whenever the government pays for a significant part of a religious school’s secular program or activity — rests on the dubious assumption that the government may not provide an indirect benefit to religion. The Court has regularly rejected the sweeping argument that any indirect benefit to religion violates the Establishment Clause. As the Court noted nearly 50 years ago in Everson, the possibility of indirect benefit to religious schools exists whenever, for example, a policeman protects children walking to and from religious schools and a city hauls away a church’s trash. 330 U.S. at 17. The Court reaffirmed this point in Zobrest, 509 U.S. at 8 (quoting Widmar v. Vincent, 487 U.S. 589, 609 (1988)): "[I]f the Establishment Clause did bar religious groups from receiving general government benefits, then a ‘church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.’" Money, after all, is fungible, and any time a religious organization receives the benefit of any public service, it is spared the expense of providing that service for itself and it has that much more money available for its religious mission.

This first approach to assisting children in religious schools emphasizes what the program provides — i.e., the nature or content of the service purchased with public funds. After the apparent success of this approach in Everson and Allen, advocates of aid to religious schools sought to finance with public funds the salaries of teachers in religious schools who taught secular subjects, as well as the purchase of textbooks, maps, lab equipment, and other counseling services. These advocates argued that, as in those earlier cases, the nature and content of the aid sought was, without dispute, secular.

In Lemon, Nyquist, Meek, and Wolman, the Court rejected this approach. Instead, applying the "Lemon test," the Court asked whether, notwithstanding the secular content of the government benefits themselves, they nonetheless might have the "effect" of furthering the religious mission of the parochial school. The Court based its decisions in these cases not on the nature of the aid itself, but on the potential for indirect advancement of religion, indoctrination by the teachers of secular subjects, "political divisiveness," and "entanglement." This kind of analysis, of course, is likely to be — and has proved to be — far less predictable and consistent, and much more dependent on the Justices’ subjective impressions, than a straightforward focus on the content of the aid provided to a religious school or the nature of the activity subsidized. As the Court acknowledged in Lemon and as was confirmed by the inconsistency and unpredictability of later decisions, "[c]andor compels acknowledgement . . . that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." 403 U.S. at 612.

(b) How are the beneficiaries selected?

The second approach considered by the Court and pressed by religious-school advocates does not focus on the nature or content of the aid itself and does not limit the use of secular goods or services. Instead, public money was allocated that could benefit religious schools directly and might even be used to purchase or subsidize unabashedly religious services, books, or materials. The constitutional key to these programs, though, is that any benefit to religious institutions or to religion generally results from "genuinely independent and private choice." The constitutional theory underlying these programs is that the benefit conferred on a religious school is not being conferred by government. Instead, government remains neutral, and disburses public funds to private individuals, earmarked for a particular public-welfare purpose like education. Private individuals then determine where the money is to be spent. Today’s school-choice and voucher proposals represent an example of this second approach.

Although Allen and Everson contained the seeds of this second approach — the bus services and textbooks were provided to all schoolchildren, and it was therefore a matter of private choice whether public funds ended up being used in religious schools — the first clear example of this approach considered by the Court was the tuition-reimbursement and tax-credit program struck down by the Court in Nyquist. The Supreme Court invalidated the program and did not deem it significant that parents’ choices, not government choices, determined whether these programs’ benefits would be used at religious or secular nonpublic schools.

The New York program, however, was a flawed example of the second approach because it was constitutionally "underinclusive" in failing to provide similar tax relief for parents of children attending public schools. The Minnesota tax legislation that was challenged in Mueller v. Allen filled this gap and therefore passed Supreme Court scrutiny. The Court, in upholding the Minnesota program, was not troubled, as the Court in Nyquist had been, by the fact that public money might end up having "an economic effect comparable to that of aid given directly to the schools." 463 U.S. at 399. In fact, the Court recognized that the vast majority of the benefits conferred under the program would, as a practical matter, end up in religious schools. What was more important to the Court — in keeping with the constitutional theory of this second approach — was that "public funds become available [to religious schools] only as a result of numerous private choices of individual parents of school-age children." 463 U.S. at 399. To the question why the result in Mueller was different than in Nyquist, despite the fact that in both cases involved aid to parents, not schools, Justice Rehnquist answered, "[m]ost importantly, the deduction [was] available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools." 463 U.S. at 397.

In Mueller we see at work a different constitutional theory than that which underlies payment for bus transportation, loaned textbooks, school lunches, instructional materials, and building-construction grants. The program in Mueller was constitutional not because of what was purchased with public funds but because of how the public funds reached the beneficiary. Under this theory, the Constitution is not violated because the money has been directed to its final goal by a private agent, not by a state official.

The Court’s decision in Mueller, and its apparent acceptance of this second approach, explains the result in both Witters and Zobrest. These cases involved expenditures for services that were unquestionably religious in nature. In Witters a blind student was permitted to use public funds to study to be a pastor, and in Zobrest, a deaf student in a Catholic school was provided an interpreter, with government money, even in his religion classes. The Court upheld the aid in both cases although each involved a disbursement of public funds. Furthermore, both the Nyquist tax-credit plan and the Mueller tax deduction had only consequential and circuitous impacts on the public treasury. Taxpayers benefited by reduced tax bills, and it was anticipated that the religious schools would then demand increased payments from the taxpayer-parents to their tax advantages. Witters and Zobrest, however, extended the constitutional theory of Mueller to the area of affirmative government grants. Mr. Witters was permitted to spend government money to buy a religious education, and the parents of James Zobrest were empowered to have public funds spent for an interpreter at a Catholic parochial school. As a result of private choice, the government-sponsored interpreter communicated to the child the context of the school’s religious curriculum as well as its secular teaching. The Court’s view of the matter was clear: "James’ parents have chosen of their own free will to place him in a pervasively sectarian environment. The sign-language interpreter they have requested will neither add to nor subtract from that environment, and hence the provision of such assistance is not barred by the Establishment Clause." Zobrest, 509 U.S. at 13.

(c) Summary

The Supreme Court’s decisions concerning aid to religious schools highlight the important distinction between (1) public-funding programs that limit what may be purchased with government money and (2) public-funding programs that prescribe how government money reaches private beneficiaries. Various efforts along the first of these lines to shape and structure programs funding only secular activities were rebuffed by the Supreme Court in a series of decisions issued in the 1970s and 1980s. Although many of those cases were wrongly decided, they form the constitutional landscape and cannot be ignored in considering constitutional strategy. By contrast, programs that provide unrestricted public funding to private religious schools as a result of designations by private individuals have proved increasingly successful in the Supreme Court in recent years. Today’s school-voucher programs and proposals naturally fall into the latter category, and there are positive signs in recent Supreme Court opinions, and in the work of leading First Amendment theorists, that justify optimism regarding the constitutionality of such programs.

5. The "Charitable Contribution" Analogy

Agostini is the latest in a series of cases, including Mueller, Zobrest, and Witters, indicating that a well-drafted school-voucher proposal would be found constitutional because the proposal would revolve around the manner by which public funds are channeled to religious schools — that is, it would empower parents to make "independent private choices" to send their children to religious schools. The crucial question for advocates of school vouchers is whether the Supreme Court — or, more precisely, a majority of the current Justices — would accept the premise that a school-voucher program, like the programs at issue in the Mueller-Witters-Zobrest-Agostini line of cases, really interposes "genuinely independent and private choices" between the disbursal of funds from the public treasury and the religious school that is the eventual beneficiary of those funds.

When discussing this crucial concept of intervening and independent private choice, the Supreme Court has several times invoked, for purposes of comparison and illustration, a hypothetical model which it apparently views as an example of an unquestionably constitutional transfer of public funds to a religious institution. The model is a charitable contribution made by a government employee to his church. In Witters, Justice Thurgood Marshall considered the "effect" of the challenged government aid in the following terms (474 U.S. at 486-487):

It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary. . . . The question presented is whether . . . extension of aid to petitioner and the use of that aid by petitioner to support his religious education is a permissible transfer similar to the hypothetical salary donation described above, or is an impermissible "direct subsidy."

The Court majority endorsed this same analogy just last year in Agostini v. Felton, 117 S. Ct. at 2011-2012:

The grants [at issue in Witters] were disbursed directly to students, who then used the money to pay for tuition at the educational institution of their choice. In our view, this transaction was no different from a State’s issuing a paycheck to one of its employees, knowing that the employee would donate part or all of the check to a religious institution. In both situations, any money that ultimately went to religious institutions did so "only as a result of the genuinely independent and private choices of" individuals. The same logic applied in Zobrest . . . .

This comparison with a government employee’s "hypothetical salary donation" (Witters, 474 U.S. at 487) to a church or synagogue is a helpful analytical device, as well as an important constitutional touchstone for voucher programs, particularly in light of the confusion that so often plagues the Court’s jurisprudence in this area. If payments made to a religious school pursuant to a parent’s use of an educational voucher are substantially equivalent to a government employee’s voluntary charitable contribution, a school-voucher program should withstand constitutional challenge. If, on the other hand, the use of a voucher payment differs significantly from the "independent private choice" of a government employee’s contribution, the school-choice program may be in serious trouble. It is, therefore, useful to consider how the parents’ choice under a voucher system compares with the "independent private choice" at work in Justice Marshall’s hypothetical charitable contribution.

(a) What route do the funds follow?

The Court observed in Witters that the money directed by Mr. Witters to the religious institution was "paid directly to the student, who transmits it to the educational institution of his or her choice." 474 U.S. at 487. This fact may seem to be a formalistic triviality (indeed, in earlier cases the Supreme Court has treated it as such, see Nyquist, 413 U.S. at 781; Wolman, 433 U.S. at 250) but it is essential to the charitable-contribution analogy. If a parent receives a government check and is then authorized to endorse that check (or pay its proceeds) to any school he or she chooses, the parent is comparable to the employee in Justice Marshall’s charitable-donation hypothetical. If, on the other hand, funds are paid directly from the state treasury to the selected school — be it religious or secular — according to the parents’ designation, it may not — at least formally — be the same as the personal donation. The State, after all, is in the latter case more "directly" involved in transmitting the funds to their eventual recipient. Should this "formalistic" distinction make a difference?

Common sense suggests that it should not. The funds in question belong to the individual, who simply designates an alternate payee — the school of his or her choice. It remains true that it is the individual’s own choice about what to do with his or her grant proceeds that determines where the money ultimately goes. The government does not itself make the choice to pay the religious school. The Court acknowledged as much in Zobrest, noting that "there would be no problem under the Establishment Clause if the [funds] instead went directly to [the student’s] parents, who, in turn, hired the interpreter themselves." 509 U.S. at 13 & n.11. Just as the Constitution permits government to disburse public-welfare benefits to a private individual who, in turn, spends those funds for a religious purpose, it permits government to direct benefits for use in a religious school at the request of an eligible private beneficiary.

A real-world example, familiar to any federal employee, illustrates this point. Each year, as part of the Combined Federal Campaign, federal employees are given the opportunity to designate that a portion of their paychecks be sent by the government to charitable and non-profit organizations. This program is widely viewed as a way of encouraging charitable giving — a secular interest, presumably. Hundreds of these non-profit organizations are overtly religious. No one thinks that when the federal government acts in accord with its employee’s wishes and sends a portion of the employee’s paycheck to a religious organization, it has thereby undertaken to subsidize religion.

(b) Does a limitation on use of the funds matter?

The government’s money disbursed under a school-voucher program may be used only for tuition or other school expenses. A voucher is not simply "free money," and a parent is not at liberty to use the funds he or she receives from the public treasury to pay for groceries, medical bills, or vacation trips. In this regard, however, an educational voucher is plainly different from the salary received by a government employee, who is, of course, free to make any (legal) use he or she wishes of his earned paycheck.

But that difference does not appear to be constitutionally dispositive, as is demonstrated by the Witters case. The allocation involved in Witters was exactly like a school-voucher program. The funds provided by the state agency could only be used "for special education and/or training." 474 U.S. at 483. The money could not be spent on groceries, medical care, lottery tickets, or any other personal purpose. Nonetheless, the Supreme Court unanimously found that Mr. Witters’ use of these funds for a religious education was constitutionally permissible. Similarly, the particular tax deduction at issue in Mueller was available only for educational expenses (although, of course, as in any state, similar deductions were available for other enumerated expenses), and the IDEA funds to which James Zobrest was entitled could only be used for special-education-related expenses.

(c) Are the funds available for public as well as private schools?

The tuition-reimbursement and tax-credit benefits in Nyquist were only available to parents whose children were attending nonpublic schools. In Witters, however, Justice Marshall observed — quoting from Nyquist’s famous "footnote 38" — that the funds for vocational rehabilitation at issue in that case were "made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." 474 U.S. at 487. The Court has emphasized this same point in many other cases as well. In Allen, New York loaned secular textbooks to all children, including those in religious schools. 392 U.S. at 238. Everson involved reimbursement for public-transportation costs to all parents. 330 U.S. at 17. The construction grants at issue in Tilton were available to all qualifying universities and colleges. 403 U.S. at 675. Minnesota provided all parents with a tax deduction for education-related expenses. Mueller, 463 U.S. at 397. And, most recently, the Court observed in Agostini that "[t]he services are available to all children, no matter what their religious beliefs or where they go to school." 117 S. Ct. at 2014. Given these precedents, a school-choice program should provide that vouchers can be used in public, private, or religious schools.

California’s Proposition 174 was an example of such a program, as is the school-choice program currently in place in Cleveland, Ohio. Proposition 174 offered an "educational scholarship" for every resident, school-age child in the State. These scholarships could have been redeemed at any participating school — public, private, or religious — that met certain non-discrimination requirements. Similarly, in Cleveland, both private schools and public schools in adjoining communities are eligible to participate in the choice program.

(d) Is a voucher program "skewed towards religion?"

This question follows naturally from the previous one. Just as the employer-contribution analogy suggests that a voucher program should include government-run as well as private schools, it would also require that parents be given the same amount of money, or the same benefit, whether their child attends a religious or secular school. In Witters, Justice Marshall emphasized that Washington’s aid program was "in no way skewed towards religion," "create[d] no financial incentive for students to undertake sectarian education," and "did not tend to provide greater or broader benefits for recipients who apply their aid to religious education, nor are the full benefits of the program limited, in large part or in whole, to students at sectarian institutions." 474 U.S. at 487-88. The Court has made the same point in other cases as well. See, e.g., Zobrest, 509 U.S. at 10; Agostini, 117 S. Ct. at 2014. These features, the Witters Court reasoned, distinguished Washington’s program from the program struck down in Nyquist. And these features are also important to Justice Marshall’s government-employee analogy. An employee who chooses to make religious organizations the object of his charity is not paid more than those who prefer secular charities.

To be sure, more parents may choose to give their children a religious education in religious schools if there is a voucher program than do now. This is because parochial-school expenses that have heretofore been borne totally by the parents will, under a voucher program, be partly defrayed by public funds. Choosing a religious school becomes, for many low-income parents especially, a more feasible option. But this merely places religion on a more even keel with non-religion. It does not tip the scales or "skew" the balance in favor of religion. Indeed, putting parents in a financial position where their choice between religious schools and secular ones can be made not on the basis of money, but on the basis of religious belief and educational philosophy, simply increases citizens’ freedoms. Hence the voucher program equalizes opportunity, rather than "skews toward religion."

The right question is not whether more parents may choose to send their children to religious school. It is, rather, whether the program itself creates an "incentive" to use one’s voucher-created power of choice to attend a religious school. Under the voucher program’s own criteria and terms is the religious option more appealing? In Agostini, the Court explained that it was not a "financial incentive to undertake religious indoctrination" if "the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." 117 S. Ct. at 2014. The same was true in Witters, where the Court clarified what it meant when it noted that the program was not "skewed toward religion" by adding that the program did not provide greater benefits to those who chose religious schools. 474 U.S. at 488. As the Court observed in both Agostini and in Mueller, the Constitution does not judge an aid program based on the number of students who use benefits, available under a facially neutral law, to attend religious schools. Agostini, 117 S. Ct. at 2013; Mueller, 463 U.S. at 401.

(e) Is the voucher program designed "to provide desired financial support for nonpublic, sectarian institutions?"

Demonstrating what can only be characterized as a suspicious and hostile attitude towards religious schools, the Court in Nyquist had warned against "ingenious plans for channeling state aid to sectarian schools." 413 U.S. at 785. Justice Marshall quoted this passage in Witters and noted that the Washington program of providing educational assistance to the disabled was also not a covert vehicle for subsidizing religious education. 474 U.S. at 487-488. The program’s objective, rather, was to assist those with vocational handicaps. Religious institutions were aided only as an incident to the accomplishment of that objective. The same could be said of the program that was at issue in Zobrest. Congress and the Arizona public authorities wanted to help persons with disabilities. Religious belief and religious institutions were only the secondary beneficiaries of the program designed to assist disabled people. The Court said in Zobrest (509 U.S. at 12):

Disabled children, not sectarian schools, are the primary beneficiaries of the [Individuals with Disabilities Education Act]; to the extent sectarian schools benefit at all from the IDEA, they are only incidental beneficiaries. Thus the function of the IDEA is hardly to "‘provide desired financial support for nonpublic, sectarian institutions.’" Witters, 474 U.S. at 488 (quoting Nyquist, 413 U.S. at 783).

Similarly, the purpose of the textbook-loan program in Allen was the "furtherance of the educational opportunities available to the young." 392 U.S. at 243. And in Mueller the Court easily concluded that "a State’s efforts to assist parents in meeting the rising cost of educational expenses plainly serves [the] secular purpose of ensuring that the State’s citizenry is well educated." 463 U.S. at 395.

This is an important point for religious-school advocates. In a way, the question whether a voucher program is designed "to provide desired financial support for nonpublic, sectarian institutions" is the same as the first "prong" of the Lemon test, which asks whether the program has a "secular legislative purpose." 403 U.S. at 612. It cannot be denied that, in addition to the some of the generic, secular purposes just described, at least one consideration motivating those promoting school-choice programs has been to help religious schools, even if only to promote educational diversity or to ensure some kind of viable competition for government-run schools. Indeed, this fact has often been highlighted by opponents of school choice. If such a purpose irretrievably taints, for constitutional purposes, the result of religious-school advocates’ lobbying efforts, then it is hard to see how a program endorsed by religious organizations could ever pass constitutional muster. Fortunately, the Court has stated that it will "only invalidate a statute [under the Establishment Clause] if it is motivated wholly by an impermissible purpose." Bowen v. Kendrick, 487 U.S. 589, 602 (1988).

Additionally, the Supreme Court has repeatedly rejected the suggestion that an otherwise valid law becomes unconstitutional under the Establishment Clause simply because it happens to coincide with the legislative objectives of a church, or with the tenets of a particular religion. The Court in Bowen v. Kendrick held that the Adolescent Family Life Act, which authorized federal grants to agencies — including religious institutions — that provided services aimed at reducing teenage pregnancy, was constitutional on its face. It was not a fatal flaw that the Act’s supporters were motivated by religious concerns, and that Congress was aware of this fact. 487 U.S. at 602, 604 n. 9. The Court stated, "We see no reason to conclude that [the Act] serves an impermissible religious purpose simply because some of the goals of the statute coincide with the beliefs of certain religious organizations." 487 U.S. at 604 n. 8. Obviously, a contrary rule would be impossible to administer, given that hundreds of government programs and policies are consonant with, and may be prompted by, many people’s religious beliefs. As the Court put it in McGowan v. Maryland, 366 U.S. 420, 442 (1961):

[T]he "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And that the fact that this agrees with the dictates of the Judeo-Christian religions while it may disagree with others does not invalidate the regulation. . . . The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.

(f) Are school vouchers "earned?"

In invoking the charitable-contribution model, it is interesting that the Supreme Court has never discussed or even noted one obvious distinction between its hypothetical and all the public-funding programs that have been and are being litigated: The government-employee contribution has, it is fair to assume, "earned" his or her salary check. The government is not providing a gratuity when money that was once public is, after being earned by the employee, directed by him or her to a religious institution. It is hard to quarrel with the argument that the public treasury (and, by extension, a potentially objecting taxpayer) is not harmed if the government employee exchanges his or her labor for a check that is eventually signed over to a church or religious institution. The beneficiary under any public-funding program is, on the other hand, receiving government largesse when he — like Larry Witters or James Zobrest — personally benefits from services that he purchases with government funds. A unilateral payment, or benefits received under an entitlement program, depletes the public treasury with the government appearing to receive nothing in return.

But this possible difference between vouchers and salary did not trouble Justice Marshall in Witters. Nor was it even mentioned by the majority in Agostini’s recent discussion of Witters. The Supreme Court apparently does not view social-welfare payments as government gratuities. Instead, it seems ready to treat such payments as comparable to a payment of salary. A voucher for which a parent is eligible according to statutory criteria "belongs" to that parent, as long as the statute is in effect, just as surely as does that parent’s paycheck. The fact that James Zobrest’s parents could sue government officials, demanding the benefits to which they were entitled under the law, proves this point. Although a voucher is not "earned" by the recipient, this should not be a serious obstacle to a determination that a school-choice plan is constitutional.

(g) Summary

All of the Supreme Court Justices agree that a government employee can donate his paycheck to his church without violating the Constitution. It does not matter, for constitutional purposes, that money that was once in the hands of the government ends up — via religiously motivated, but entirely private individual choice — being put to a religious use. Such choices are permitted by the Constitution. An important legal and rhetorical challenge for school-choice advocates is to identify and highlight the parallels between charitable contributions and vouchers.

Continued.

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