VOUCHERS: QUICK TAKE ON THE DIFFERENT OPINIONS

My full response to this decision, with detailed analysis of precedent, more nuanced, careful reads of the Justices' words, and a full explanation behind my theory of the religion clauses will require me to write the Note I should have written in law school. At the other extreme, here are my first impressions of the various opinions.

(I apologize to those who have waded through multiple revisions of this post - this is the final version!)

Rehnquist (Majority): As expected, a straight-forward application of "neutrality" theory. Start with neutral funding criteria (which at the plurality held was in and of itself sufficient even in the case of direct aid in Mitchell) add indirection through the voucher system (funds go to religious institutions through "genuine choice" of parents) and Presto...Constitutional - end of story.

O'Connor (Concurrence): O'Connor was the swing vote (surprise, surprise), which means her concurrence will be the most parsed section of the opinion. On the plus side, she provides a more fleshed out defense of why public alternatives need to be considered in determining whether a program provides "true private choice." On the minus side, even as she signs on to a holding that puts the last nail in the coffin of Lemon, she claims that the decision was not "a dramatic break from the past." Is it any wonder why students of constitutional law get cynical?

Thomas (Concurrence): Thomas effectively wrote a Critical Race Theory opinion. He invoked Frederick Douglass to advance the argument that the real, concrete educational needs of African-American children in the inner city must be given precedence over abstract understandings of the Establishment Clause. Thomas gets credit for co-opting the discourse of academic left in the service of a cultural right. He gets demerits, however, for implying that he's not fully reconciled to the incorporation doctrine, and wouldn't mind it if the First Amendment's religion clauses were never applied to the States.

Stevens (Dissent): All you need to know is his first line: "Is a law that authorizes the use of public funds to pay for the indocrination of thousands of grammar school children in particular religious faiths a law respecting an establishment of religion within the meaning of the First Amendment?" I've got to believe he toyed with the idea of leaving "respectively" off of this dissent.

Souter (Dissent, joined by Stevens, Ginsburg, & Breyer): While still clinging to separationism, its a much better opinion than what he wrote in Mitchell, by honestly confronting the shift in the Court's theory, rather than vainly grasping for support for seperationism in recent precedent. While his analysis of whether the voucher program presented "true choice" was purely for the sake of argument, it produces the most salient critique in his dissent - that the Court must "define choice in a way that can function as a criterion with a practical capacity to screen something out."

Breyer (Dissent, joined by Stevens & Souter) : This is the must-read part of the case. The reason is that Breyer flags the most critical issues that will have to be addressed in the cases that follow this. Namely, what safeguards must be in place to prevent formally neutral programs from favoring one religion over another? What strings, if any, can the government attach to public funding of religious institutions without violating religious liberty? And what are the possible dangers for American civic identity of shifting primary education away from integrating public schools to parochial education? In the end, Breyer throws up his hands, holding these issues to be insoluble, and retreats behind the safety of separationism. While I disagree with his conclusion, the future success of the Court's new religion jurisprudence will turn precisely on how it addresses the concerns raised in his dissent.