Supreme Court to Decide School Voucher Issue

WASHINGTON (Reuters) - The U.S. Supreme Court said on Tuesday it will decide whether vouchers, a program endorsed by President Bush that uses tax dollars to pay student tuition at religious schools, are constitutional.

The justices, getting an early start on their new term that begins next Monday, agreed to review a U.S. appeals court ruling that struck down an experimental private school voucher program in Cleveland on the grounds it violated constitutional church-state separation.

The high court accepted the recommendation of the Bush administration to resolve once and for all whether such programs were a permissible way to expand educational choices for children enrolled in failing public schools.

``This is probably the most important church-state case in the last half-century,'' said Barry Lynn of the group Americans United for Separation of Church and State. ``It will be a historic showdown over government funding of religion.''

``This is the most important educational opportunity case since Brown v. Board of Education,'' Clint Bolick of the group Institute for Justice said, referring to the landmark 1954 ruling that ended school segregation.

The Cleveland program has allowed some 4,000 students from mostly low-income families to receive tuition vouchers of up to $2,500 apiece to attend other private or public schools if their parents decided local schools did not meet their needs.

The appeals court struck down the program because it used tax money to pay student tuition for schools with a religious affiliation, promoting religious education.

The Supreme Court will hear arguments in the closely watched case early next year, with a decision due by the end of June. If the court upholds the Cleveland program, it would have sweeping national consequences for education policy.

The Supreme Court, with a 5-4 conservative majority, has handed down a string of recent rulings that lowered the wall of church-state separation by allowing some state involvement with religious schools. But it has never decided the voucher issue.

Supporters of vouchers maintained they promote competition in education and force public schools to improve while opponents argued they threaten the fiscal integrity of the nation's public school system.

School vouchers were a centerpiece of Bush's education platform during his presidential campaign.

The Ohio Pilot Project Scholarship program started in 1995 and covered kindergarten through eighth grade. The only other larger voucher program involving religious schools was in Milwaukee.

Solicitor General Theodore Olson, the Bush administration's top courtroom lawyer, said the Ohio program ``distributes educational aid on neutral terms ... without regard to religion.''

He said private choice helped ensure that the government was not seen as endorsing religion.

In one appeal to the Supreme Court, Ohio Attorney General Betty Montgomery said the case presented ``a fundamental constitutional issue of profound importance to education policy in the United States.'' Alabama, Delaware, Mississippi, Nebraska and South Carolina all supported the appeal.

Private schools in Cleveland and five Cleveland families participating in the program also filed appeals.

Opponents of the program, including the American Civil Liberties Union, argued the appeals should be rejected.

They said the appeals court in its ruling properly applied a 1973 Supreme Court ruling that struck down a private school tuition payment program.

Is anyone other than a lawyer qualified to understand the Constitution, or be qualified to comment upon it? Underlying that, is also the question of whether the Constitution means what is written by the founders, or is it capriciously and arbitrarily modified by Justices on their whim?

"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition".
Martin v. Hunter's Lessee, (1 Wheat 304); Gibbons v. Ogden, (9 Wheat 419); Brown v. Maryland, (12 Wheat 419); Craig v. Missouri, (4 Pet 10); Tennessee v. Whitworth, (117 U.S. 139); Lake County v. Rollins, (130 U.S. 662); Hodges v. United States, (203 U.S. 1); Edwards v. Cuba R. Co., (268 U.S. 628); The Pocket Veto Case, (279 U.S. 655).
"It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power."
Cook vs. Iverson, (122 N.M. 251).
"It cannot be presumed that any clause in the constitution is intended to be without effect;..."
Marbury v. Madison, (5 U.S. 137)
The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.
South Carolina v. United States, (199 U.S. 437).
"To disregard such a deliberate choice of words and their natural meaning, would be a departure from the first principle of constitutional interpretation."
Wright v. United States, (302 U.S. 583).

Not much room for doubt - the Constitution means what IT plainly states, it is not for a Justice to find some arcane, obscure meaning.

So what did the founders mean when thay added the 1st Amendment - the separation of Chuch and state? Or did they mean that the government could not institute a national/state religion as was the case in England? From Commentaries on the Constitution by Justice Joseph Story, (1833)

§ 1867. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines.
§ 1868. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
§ 1871. The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government."

Again, not much room for doubt. But some would argue that the founders meant to separate (excise?) religion from government. If that was the case consider this: the first official act of the Continental Congress, 6 Sep 1774, was a call for prayer. Rev. Jacob Duche offered the prayer. I can post it if you like, along with hundreds of quotes related to the subject. Far from separating religion from politics and government, the two are intertwined even today.

Continued ...

Finally to the subject of this thread, part 1, is the alleged separation of church and state. The following is from US Supreme Court case Vidal v. Girard's Executors, (43 U.S. 127), in 1844. Mr. Girard had died, and left almost 7 million dollars to the city of Philadelphia to create a college for orphans, with the following condition,

I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever in the said college; nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises appropriated to the purposes of the said college. [M]y desire is, that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality.

Lawyers for both sides (the heirs and the city) agreed that the Bible must be taught, that to not teach it was, in their words, "a cruel experiment" The Courts opinion, delivered by Justice Story, went even further,

It is unnecessary for us, however, to consider what would be the legal effect of a devise in Pennsylvania for the establishment of a school or college, for the propagation of Judaism, or Deism, or any other form of infidelity. Such a case is not to be presumed to exist in a Christian country ; ...
Why may not laymen instruct in the general principles of Christianity as well as ecclesiastics. There is no restriction as to the religious opinions of the instructors and officers. They may be, and doubtless, under the auspices of the city government, they will always be, men, not only distinguished for learning and talent, but for piety and elevated virtue, and holy lives and characters. And we cannot overlook the blessings, which such men by their conduct, as well as their instructions, may, nay must impart to their youthful pupils. Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation in the college -- its general precepts expounded, its evidences explained, and its glorious principles of morality inculcated? What is there to prevent a work, not sectarian, upon the general evidences of Christianity, from being read and taught in the college by lay-teachers?

The Court ruled that the Bible MUST be taught. Congress has funded the publication of Bibles (Aitkens), and funded the teaching of Christianity to the Indians. I can cite them as well. Part II, on May 1, 1789 Congress approved the election of Rev. William Linn as Chaplain in the House and Reverend Bishop Samuel Provost as its Chaplain in the Senate. They were paid a $500 salary from the Federal Treasury.

So much for the mythical separation of church and state. And with it, the insistence that vouchers are unconstitutional.

So much for the mythical separation of church and state. And with it, the insistence that vouchers are unconstitutional.

You have obviously done an excellent job of researching opinions supporting your desired result. Have you also done as thorough a job researching opinions supporting the opposing view? If you have I would be even more impressed.

Do I understand correctly that you believe the United States Government should be based on religion? Specifically Christian?

The events of September 11 have instilled in me a great fear of government based on religion. No matter how benign the original intent eventually extremists will gain control.

I am more convinced than ever before that Government and Religion must remain separate or eventually the result will be catastrophic.

The events of September 11 have forever changed this great nation, we have been united not by religion (although many have renewed their faith because of it) but because we are Americans. We must focus this reawakening of our Patriotic Spirit to solve the many other problems facing us. We must solve our problems as Americans, not Christians or Catholics or Muslims or Baptists or Methodists or Atheists or Pagans but Americans. We must each have the right to pray (or not) as we choose in our own way. But we must work together as Americans. That is the only way this nation can survive for another 225 years.

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