Justices Stevens, Bryer and Souter Dissent (August 2002)

Stevens Dissent

“The Court’s Decision Is Profoundly Misguided”

Justice Stevens, dissenting

Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a “law respecting an establishment of religion” within the meaning of the First Amendment? In answering that question, I think we should ignore three factual matters that are discussed at length by my colleagues.

First, the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program is not a matter that should affect our appraisal of its constitutionality. In the 1999–2000 school year, that program provided relief to less than five percent of the students enrolled in the district’s schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program. Of course, the emergency may have given some families a powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program.

Second, the wide range of choices that have been made available to students within the public school system has no bearing on the question whether the State may pay the tuition for students who wish to reject public education entirely and attend private schools that will provide them with a sectarian education. The fact that the vast majority of the voucher recipients who have entirely rejected public education receive religious indoctrination at state expense does, however, support the claim that the law is one “respecting an establishment of religion.” The State may choose to divide up its public schools into a dozen different options and label them magnet schools, community schools, or whatever else it decides to call them, but the State is still required to provide a public education and it is the State’s decision to fund private school education over and above its traditional obligation that is at issue in these cases.

Third, the voluntary character of the private choice to prefer a parochial education over an education in the public school system seems to me quite irrelevant to the question whether the government’s choice to pay for religious indoctrination is constitutionally permissible. Today, however, the Court seems to have decided that the mere fact that a family that cannot afford a private education wants its children educated in a parochial school is a sufficient justification for this use of public funds.
For the reasons stated by Justice Souter and Justice Breyer, I am convinced that the Court’s decision is profoundly misguided. Admittedly, in reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. 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.

I respectfully dissent.

Breyer Dissen

“Protect Against Religious Strife”

Justice Breyer, with whom Justice Stevens and Justice Souter join, dissenting


. . . I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program. . . .

The First Amendment begins with a prohibition, that “Congress shall make no law respecting an establishment of religion,” and a guarantee, that the government shall not prohibit “the free exercise thereof.” These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to “worship God in their own way,” and allows all families to “teach their children and to form their characters” as they wish. The Clauses reflect the Framers’ vision of an American Nation free of the religious strife that had long plagued the nations of Europe. Whatever the Framers might have thought about particular 18th century school funding practices, they undeniably intended an interpretation of the Religion Clauses that would implement this basic First Amendment objective.

In part for this reason, the Court’s 20th century Establishment Clause cases–both those limiting the practice of religion in public schools and those limiting the public funding of private religious education–focused directly upon social conflict, potentially created when government becomes involved in religious education. In Engel v. Vitale, 370 U.S. 421 (1962), the Court held that the Establishment Clause forbids prayer in public elementary and secondary schools. It did so in part because it recognized the “anguish, hardship and bitter strife that could come when zealous religious groups struggl[e] with one another to obtain the Government’s stamp of approval. . . .” Id., at 429. And it added:

“The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.” Id., at 431. . . .

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court held that the Establishment Clause forbids state funding, through salary supplements, of religious school teachers. It did so in part because of the “threat” that this funding would create religious “divisiveness” that would harm “the normal political process.” Id., at 622. The Court explained:

“[P]olitical debate and division . . . are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which [the First Amendment’s religious clauses were] . . . intended to protect.” Ibid.

And in Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973), the Court struck down a state statute that, much like voucher programs, provided aid for parents whose children attended religious schools, explaining that the “assistance of the sort here involved carries grave potential for . . . continuing political strife over aid to religion.” . . .

In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife, particularly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation’s minds and spirits. . . .

I concede that the Establishment Clause currently permits States to channel various forms of assistance to religious schools, for example, transportation costs for students, computers, and secular texts. See Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947); Mitchell v. Helms, 530 U.S. 793 (2000). . . .

School voucher programs differ, however, in both kind and degree from aid programs upheld in the past. They differ in kind because they direct financing to a core function of the church: the teaching of religious truths to young children. For that reason the constitutional demand for “separation” is of particular constitutional concern.

Private schools that participate in Ohio’s program, for example, recognize the importance of primary religious education, for they pronounce that their goals are to “communicate the gospel,” “provide opportunities to . . . experience a faith community,” “provide . . . for growth in prayer,” and “provide instruction in religious truths and values.” History suggests, not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing funding for secular textbooks, computers, vocational training, or even funding for adults who wish to obtain a college education at a religious university. . . .

Vouchers also differ in degree. The aid programs recently upheld by the Court involved limited amounts of aid to religion. But the majority’s analysis here appears to permit a considerable shift of taxpayer dollars from public secular schools to private religious schools. That fact, combined with the use to which these dollars will be put, exacerbates the conflict problem. State aid that takes the form of peripheral secular items, with prohibitions against diversion of funds to religious teaching, holds significantly less potential for social division. In this respect as well, the secular aid upheld in Mitchell differs dramatically from the present case. Although it was conceivable that minor amounts of money could have, contrary to the statute, found their way to the religious activities of the recipients, that case is at worst the camel’s nose, while the litigation before us is the camel itself.

I do not believe that the “parental choice” aspect of the voucher program sufficiently offsets the concerns I have mentioned. Parental choice cannot help the taxpayer who does not want to finance the religious education of children. It will not always help the parent who may see little real choice between inadequate nonsectarian public education and adequate education at a school whose religious teachings are contrary to his own. It will not satisfy religious minorities unable to participate because they are too few in number to support the creation of their own private schools. It will not satisfy groups whose religious beliefs preclude them from participating in a government-sponsored program, and who may well feel ignored as government funds primarily support the education of children in the doctrines of the dominant religions. And it does little to ameliorate the entanglement problems or the related problems of social division that Part II, supra, describes. Consequently, the fact that the parent may choose which school can cash the government’s voucher check does not alleviate the Establishment Clause concerns associated with voucher programs.

The Court, in effect, turns the clock back. It adopts, under the name of “neutrality,” an interpretation of the Establishment Clause that this Court rejected more than half a century ago. In its view, the parental choice that offers each religious group a kind of equal opportunity to secure government funding overcomes the Establishment Clause concern for social concord. An earlier Court found that “equal opportunity” principle insufficient; it read the Clause as insisting upon greater separation of church and state, at least in respect to primary education. See Nyquist, 413 U.S., at 783. In a society composed of many different religious creeds, I fear that this present departure from the Court’s earlier understanding risks creating a form of religiously based conflict potentially harmful to the Nation’s social fabric. Because I believe the Establishment Clause was written in part to avoid this kind of conflict, and for reasons set forth by Justice Souter and Justice Stevens, I respectfully dissent.

Souter Dissent

“Doctrinal Bankruptcy Has Been Reached Today”

Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting


. . . The applicability of the Establishment Clause to public funding of benefits to religious schools was settled in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), which inaugurated the modern era of establishment doctrine. The Court stated the principle in words from which there was no dissent:

“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.”

The Court has never in so many words repudiated this statement, let alone, in so many words, overruled Everson.

Today, however, the majority holds that the Establishment Clause is not offended by Ohio’s Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious schools. In the city of Cleveland the overwhelming proportion of large appropriations for voucher money must be spent on religious schools if it is to be spent at all, and will be spent in amounts that cover almost all of tuition. The money will thus pay for eligible students’ instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension. Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools, to speak only of major religious groupings in the Republic.

How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today’s decision on those criteria. . . .

. . . doctrinal bankruptcy has been reached today. . .

There is, in any case, no way to interpret the 96.6% of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6% reflects, instead, the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students. And contrary to the majority’s assertion, public schools in adjacent districts hardly have a financial incentive to participate in the Ohio voucher program, and none has. For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious. And it is entirely irrelevant that the State did not deliberately design the network of private schools for the sake of channeling money into religious institutions. The criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobson’s choice is not a choice, whatever the reason for being Hobsonian. . . .
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. . . .

The Cleveland voucher program has cost Ohio taxpayers $33 million since its implementation in 1996 ($28 million in voucher payments, $5 million in administrative costs), and its cost was expected to exceed $8 million in the 2001–2002 school year. These tax-raised funds are on top of the textbooks, reading and math tutors, laboratory equipment, and the like that Ohio provides to private schools, worth roughly $600 per child.

The gross amounts of public money contributed are symptomatic of the scope of what the taxpayers’ money buys for a broad class of religious-school students. In paying for practically the full amount of tuition for thousands of qualifying students, compare Nyquist, (state aid amounting to 50% of tuition was unconstitutional), the scholarships purchase everything that tuition purchases, be it instruction in math or indoctrination in faith. The consequences of “substantial” aid hypothesized in Meek are realized here: the majority makes no pretense that substantial amounts of tax money are not systematically underwriting religious practice and indoctrination.

It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme, but something has to be said about the enormity of the violation. I anticipated these objectives earlier, in discussing Everson, which cataloged them, the first being respect for freedom of conscience. Jefferson described it as the idea that no one “shall be compelled to . . . support any religious worship, place, or ministry whatsoever,” A Bill for Establishing Religious Freedom, even a “teacher of his own religious persuasion,” and Madison thought it violated by any ” ‘authority which can force a citizen to contribute three pence . . . of his property for the support of any . . . establishment.’ ” Memorial and Remonstrance. “Any tax to establish religion is antithetical to the command that the minds of men always be wholly free,” Mitchell, 530 U.S., at 871 (Souter, J., dissenting). Madison’s objection to three pence has simply been lost in the majority’s formalism.

As for the second objective, to save religion from its own corruption, Madison wrote of the ” ‘experience . . . that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.’ ” Memorial and Remonstrance. In Madison’s time, the manifestations were “pride and indolence in the Clergy; ignorance and servility in the laity[,] in both, superstition, bigotry and persecution,”; in the 21st century, the risk is one of “corrosive secularism” to religious schools, and the specific threat is to the primacy of the schools’ mission to educate the children of the faithful according to the unaltered precepts of their faith.

The risk is already being realized. In Ohio, for example, a condition of receiving government money under the program is that participating religious schools may not “discriminate on the basis of . . . religion,” which means the school may not give admission preferences to children who are members of the patron faith; children of a parish are generally consigned to the same admission lotteries as non-believers. This indeed was the exact object of a 1999 amendment repealing the portion of a predecessor statute that had allowed an admission preference for “[c]hildren . . . whose parents are affiliated with any organization that provides financial support to the school, at the discretion of the school.” Nor is the State’s religious antidiscrimination restriction limited to student admission policies: by its terms, a participating religious school may well be forbidden to choose a member of its own clergy to serve as teacher or principal over a layperson of a different religion claiming equal qualification for the job.

Indeed, a separate condition that “[t]he school . . . not . . . teach hatred of any person or group on the basis of . . . religion,” could be understood (or subsequently broadened) to prohibit religions from teaching traditionally legitimate articles of faith as to the error, sinfulness, or ignorance of others, if they want government money for their schools.

For perspective on this foot-in-the-door of religious regulation, it is well to remember that the money has barely begun to flow. Prior examples of aid, whether grants through individuals or in-kind assistance, were never significant enough to alter the basic fiscal structure of religious schools; state aid was welcome, but not indispensable. But given the figures already involved here, there is no question that religious schools in Ohio are on the way to becoming bigger businesses with budgets enhanced to fit their new stream of tax-raised income. . . . (of 91 schools participating in the Milwaukee program, 75 received voucher payments in excess of tuition, 61 of those were religious and averaged $185,000 worth of overpayment per school, justified in part to “raise low salaries”). The administrators of those same schools are also no doubt following the politics of a move in the Ohio State Senate to raise the current maximum value of a school voucher from $2,250 to the base amount of current state spending on each public school student ($4,814 for the 2001 fiscal year). Ohio, in fact, is merely replicating the experience in Wisconsin, where a similar increase in the value of educational vouchers in Milwaukee has induced the creation of some 23 new private schools, some of which, we may safely surmise, are religious. New schools have presumably pegged their financial prospects to the government from the start, and the odds are that increases in government aid will bring the threshold voucher amount closer to the tuition at even more expensive religious schools.

. . . it is enough to say that the intensity of the expectable friction can be gauged by realizing that the scramble for money will energize not only contending sectarians, but taxpayers who take their liberty of conscience seriously. Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics, and every major religion currently espouses social positions that provoke intense opposition. Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America’s Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines “a nationalistic sentiment” in support of Israel with a “deeply religious” element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention. Views like these, and innumerable others, have been safe in the sectarian pulpits and classrooms of this Nation not only because the Free Exercise Clause protects them directly, but because the ban on supporting religious establishment has protected free exercise, by keeping it relatively private. With the arrival of vouchers in religious schools, that privacy will go, and along with it will go confidence that religious disagreement will stay moderate.

* * *

If the divisiveness permitted by today’s majority is to be avoided in the short term, it will be avoided only by action of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. Perhaps even cities with problems like Cleveland’s will perceive the danger, now that they know a federal court will not save them from it.

My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority’s decision. Everson’s statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the Establishment Clause has largely been read away. True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today’s dramatic departure from basic Establishment Clause principle.

Freedom From Religion Foundation