Trashing the First Amendment. (Church and State)

By Doerr, Edd | The Humanist, September-October 2002 | Go to article overview

Trashing the First Amendment. (Church and State)


Doerr, Edd, The Humanist


On June 22, 2002, a bare majority of the Supreme Court--Justices William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy, and Sandra Day O'Connor--blithely brushed aside more than a half century of the Court's own establishment clause precedents and upheld the Ohio legislature's brazen diversion of public funds to the support of sectarian public schools.

The ruling in Zelman v. Simmons-Harris holds that Ohio's pilot voucher plan "is neutral with respect to religion" and doesn't violate the First Amendment's establishment clause. Justice O'Connor, who cast the deciding vote, turned her back on her own position of two years earlier in Mitchell v. Helms and denied, astonishingly, that the new ruling "marks a dramatic break from the past."

The majority--the same five justices who gave the keys to the White House to the loser of the popular presidential vote in 2000--based its ruling on slim, minor precedents and essentially ignored the bulk of constitutional law on the subject since the magisterial 1947 Everson decision.

In dissent, Justice John Paul Stevens pointed out that the "voluntary choice" view of the majority won't wash because it is "quite irrelevant to the question whether the government's choice to pay for religious indoctrination is constitutionally permissible." He added that "whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy."

Justice David Souter accused the majority of repudiating the 1947 Everson ruling, in which all nine justices then agreed that the First Amendment means at least that "no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion." He added that the Court cannot "consistently leave Everson on the books and approve the Ohio vouchers."

Souter went on to write that "the scale of the aid to religious schools approved today is unprecedented, both in the number of dollars and in the proportion of systemic school expenditure supported." Souter was joined in his strong dissent by Justices Stevens, Stephen Breyer, and Ruth Bader Ginsburg.

In a separate dissent Breyer warned of "the risk that publicly financed voucher programs pose in terms of religiously based social conflict." Breyer accused the majority of "turning the clock back" on fundamental constitutional principles and adopting "an interpretation of the establishment clause that the Court rejected more than half a century ago."

In thumbing its nose at constitutional precedent, the Rehnquist majority also flipped the bird at the vast majority of Americans who, in twenty-five statewide referenda over the past thirty-five years, have registered 68 percent to 32 percent opposition to school vouchers or their analogs. …

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