On Dec. 1, the Supreme Court will set its collective foot once again in what a lower court has accurately called the “vast, perplexing desert of Establishment Clause jurisprudence.” And if history is any guide, the Court will only make the desert a little more vast and perplexing.
The Court will hear argument in Mitchell v. Helms, No. 98-1648, a case challenging the constitutionality of government aid to religious schools. Nowhere is the Court’s establishment clause doctrine more perplexing than with respect to aid to religious schools. And nowhere is the Court’s doctrine more under attack, as several states and local governments have enacted voucher programs providing direct subsidies to children who choose to attend religious schools. Mitchell v. Helms does not present the constitutionality of vouchers per se, but as it is argued and decided, everyone’s eyes will be focused on the voucher cases coming down the road. The establishment clause doctrine regarding public aid to religious schools attempts to strike a balance between two competing notions. On the one hand, the Court has said, the government may not directly subsidize religious activity. On the other, the state is certainly permitted to subsidize the education of children. The rub is that in a religious school, particularly at the grammar and secondary school levels, it is extremely difficult to separate religious activity, which may not be publicly supported, from secular education, which may be.
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