St. Mary's Law Journal


The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully crafted school voucher programs. In Zelman, the Court held constitutional an extensive financial assistance program established for the parents of school children in a failed Cleveland, Ohio district. The vast majority of these funds were eventually spent for tuition at religious institutions. The distinction between the majority and the dissenting opinions in Zelman might best be explained by the extent to which "judicial activism" is seen to be appropriate by the various Justices. The majority of the Court, in its analysis of the statute under consideration, does not see its role as an overseer of school systems. The majority holds that the program is neutral and allows free choice—in spite of later statistical results which might suggest otherwise. The dissenters, on the other hand, seem more interested in the eventual effect of the legislation than its structure. The dissent would declare a program unconstitutional because of enrollment, which eventually transpires to indicate public support for religious institutions. Whether future voucher programs, with their various facets, will be disputed remains to be seen. For now, a carefully-constructed program like that of Cleveland appears to be free from serious constitutional challenge.


St. Mary's University School of Law