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A Supreme Court Ruling Bodes Well for School Vouchers By Richard W. Garnett On Monday the U.S. Supreme Court reaffirmed that
the First Amendment does not require -- in fact, it does not permit
– government to discriminate against religious persons,
organizations and ideas. No doubt some will complain that the court's
6-3 decision in Good News Bible Club v. Milford, permitting a
Christian youth group to meet after school hours in public-school
facilities, somehow lowers "the wall of
separation" between church and state. It does not.
Instead, Justice Clarence Thomas's clear and well-reasoned majority
opinion honors our constitutional traditions of religious freedom and
pluralism by welcoming, on equal terms, the faithful to the public
square. In 1992, Milford, N.Y., adopted a "Community
Use Policy" that permits town residents to use public-school
facilities for "social, civic and recreational meetings. . .
pertaining to the welfare of the community." Policies like this
are both commendable and common. They strengthen our communities by
acknowledging and supporting the private clubs, groups and
associations that are so important in a diverse and democratic
society. The Good News Bible Club is a community-based
Christian youth organization. Its purpose is to instruct
elementary-school children in family values, and its activities are
informed by its members' faith. The children sing songs, play games,
share verses from scripture, and pray. But when the club asked for
permission to use the Milford school's cafeteria for one hour each
week after school, the request was denied. The reason? Government
officials determined that the club's expression was too religious, and
its activities too much like "worship." Relying on a long line of Supreme Court
precedent, the Good News Club filed a federal lawsuit arguing that the
First Amendment's free-speech guarantee does not allow Milford to
exclude the club simply because it teaches morals and values from a
Christian perspective. Our Constitution, the club insisted, does not
permit governments to discriminate against groups because of the
"viewpoints" they espouse. The Supreme Court agreed. In the 1993 Lamb's Chapel decision, for example,
the court had ruled that a school district violated the Constitution
when it excluded a private group from its facilities simply because
the group wanted to show a film that discussed family values from a
religious viewpoint. What was true in that case, Justice Thomas
reasoned, was true here, too. Because Milford permits non-religious
groups to use school grounds to "promote the moral and character
development of children," it cannot exclude religious groups like
the Good News Club from doing the same thing. The court also rejected the argument that the
constitutional prohibition on established religion required Milford to
exclude the Good News Club, and reaffirmed that the equal treatment of
religion is not the establishment of religion. For Milford to treat
the club like other groups -- no better, no worse -- is not to coerce
children to engage in religious activities, but rather to communicate
a respect for religious pluralism and diversity of viewpoints. The Good News decision is welcome, and
noteworthy, for at least two reasons. First, Justice Thomas's opinion
continues the court's gradual and much-needed rehabilitation of its
church-state case law. Last year, in Mitchell v. Helms, the court
permitted government to provide secular educational assistance to
needy children attending parochial schools, and the decision in Good
News continues the trend away from the misguided suspicion of
religious belief and expression that for too long distracted the
court. In particular, it is now clear that viewpoint-based
discrimination against religious expression is impermissible in the
elementary-school context no less than in colleges and high schools. Second, the decision provides further support for
the constitutionality of important reforms like school vouchers and
charitable choice. While reasonable people can and do disagree about
the effectiveness of such proposals, the court's current case law
makes it clear that the First Amendment permits religious schools and
faith-based service providers to participate in our shared efforts for
educational opportunity and empowerment and against poverty and
addiction. The court's decision is a reminder that religious
speech is not second-class speech. Our Constitution protects religious
freedom both by telling governments that they may not establish
religion and by promising citizens that they need not check their
religious beliefs at the entrance of the public square. Mr. Garnett is a professor at Notre Dame Law School. |
