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a journal of analysis and comment advancing public understanding of religion and education
(more on the Journal)

Fall 2002, Vol. 29 No. 2

Zelman v. Simmons-Harris: Remarks from a National Press Club Panel

Nicholas Miller

The following is the text of remarks made at a panel discussion sponsored by the Pew Forum on Religion in Public Life and held at the National Press Club in Washington D.C. the day after the Supreme Courtís decision in the school voucher case of Zelman v. Simmons-Harris. In that case, a majority of the court upheld the constitutionality of a voucher system run in the City of Cleveland, Ohio. The decision deeply divided the Court, with five justices broadly upholding the program as constitutional because the government aid was neutral towards religion and passed through the hands of parents who themselves made the final decision where to send the aid, whether secular or religious schools. Four justices strongly dissented. They questioned the neutrality of a program where 96% of the students using vouchers attended religious schools, and argued that the decision was a dramatic departure from the long-standing constitutional principle that tax-payers should not be compelled to support religious views they do not believe in.

I should say at the outset that I am sympathetic to school choice and religious schools, Iím the grateful product of 16 years of Christian education, and I plan to send own children to church schools, I belong to a church, the Seventh-day Adventist church, that has the 2nd largest parochial school system in the world behind the Catholic church.

Therefore, I hope that this decision is good for religious schools, but I fear it is not. I think Zelman is bad for religious freedom generally, and bad for religious schools in particular . . . I will explain why, but first let me put this decision in some larger context.

Smith & Zelman

Twelve years ago in the Smith decision the Supreme Court, in the words of the The Harvard Law Review, "eviscerated" the free exercise clause. Yesterday, in Zelman, the Court appears has basically abandoned the longstanding Establishment Clause principles that prohibit tax support of religion.

Many observers view these two decisions as being in tension or in downright conflict. The Smith decision is viewed as being hostile to religion cutting back on religionís constitutional protections and rights, whereas yesterdays decision is, I believe, viewed as supportive and favorable towards religion, allowing it to use tax monies for religious teaching and mission.

But I think there is an underlying theme or principle that unifies these decisions, and it is not support or hostility or even neutrality towards religion, rather, the unifying principle of these cases can be expressed in one word, majoritarianism Ė giving power to the majority in religious matters.

The Smith decision left the protection of religion to the majority controlled legislatures; now, Zelman has given power over the funding of religion to those same legislatures, meaning inevitably that state funds will find their way, disproportionately into the coffers of large and/or popular religious groups

Both decisions, I believe, misconceive the role of the courts in our constitutional scheme, which is to protect religious minorities under the bill of rights against the insensitivity or hostility of majorities, or from having to support popular religious views with their tax dollars. For this reason, both decisions, I believe, represent tremendous set-backs for religious freedom in America, although for different reasons.

[Fall 2002 Issue Contents]