SCHOOL VOUCHERS ARE CONSTITUTIONAL: THERE MAY BE HOPE OF AN INTELLIGIBLE RELIGION JURISPRUDENCE IN OUR LIFETIMES

The Supreme Court upheld the constitutionality of school vouchers today in a 5-4 decision, as I expected. The decision is the logical conclusion of the line of cases in the 1980s and 1990s that backed away from the unworkable Lemon test on issues of government funding to religious institutions. That being said, I do believe there needs to be more nuance than the formal neutrality position as expressed by the plurality position in Mitchell v. Helms, which I'm guessing is quite similar to the majority's decision in this case. I expect the most interesting part of the decision will be Justice O'Connor's concurrence, which may provide a road-map to an establishment clause jurisprudence that is no longer seperationist, but not minimalist.

One quick non-legal thought: The strongest arguments against vouchers have always been the policy ones - will vouchers improve the overall quality of education, will they spur competitive forces in public schools, will they be constructed in a way that focuses on the most needy - or will they be simply a give-away to middle-class parents who are already sending their children to private schools. With this decision, these issues will be addressed where they should be addressed - through the democratic process.