Vouchers, Parochiaid & Bigotry

by Fr. Charles Irvin

June 1998

In the emerging debate over school vouchers Geoffrey Fieger is already attempting to muddy the waters by introducing emotionalism, fear and anti-Catholic bigotry (Catholics are “religious nuts” in his rhetoric). Out on the stump in the gubernatorial race his favorite theme is to suggest that the school voucher is nothing but a veiled attempt at funneling taxpayers’ dollars to the coffers of the Catholic Church. It’s all a part of his street theater form of “argumentation” and “debate”, a technique built on bashing others, ridiculing and demeaning them while appealing to the emotions of ordinary people whom he privately regards as idiots and stupid sheep.

In the argumentation and debate carried on in appellate courts, removed from juries and public audiences, Geoffrey’s record is less than spectacular. This is because his techniques don’t play before justices in higher courts. So perhaps we ought to look now at what the courts are saying with respect to educational choice vouchers.

The First Amendment to our U.S. Constitution tells us that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Through the Fourteenth Amendment U.S. constitutional law applies with equal force to our state legislatures, prohibiting them from advancing or inhibiting religion.

The U.S. Supreme Court in the latter half of this century has, through a number of decisions, promulgated a three-pronged test to determine whether or not governmental legislation violates the Establishment Clause of the First Amendment thus breaching the mythical “Wall of Separation Between Church and State.” Under the “Lemon test” (cf. Lemon v. Kurtzman, 403 U.S. at 612), a school choice voucher plan, or any other similar aid-to-education plan, does not violate the Establishment Clause if, (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion.

So under the first prong we need to see that the purpose of a school choice voucher is to provide low-income parents with a real choice as to the schools in which their children will be educated. Poverty, you see, is the inability to access power, particularly the power of choice. There are those who wish to tell us that low-income folks cannot be allowed to choose the schools in which their kids will be educated, Fieger being one of the loudest supporters of the public school monopoly. Nevertheless, if the State of Michigan decides to help low-income people defray the costs of educating their children regardless of the type of schools their children will attend, then the legislative purpose is both rational and secular. In issuing the vouchers, there is no religious test involved; the vouchers are given to individual private citizens who exercise their own personal choices. The school choice vouchers are NOT issued to institutions, church related or otherwise.

Under the second prong we must ask: Is the primary effect one of advancing religion? Does the effect neither advance nor inhibit religion? Clearly it is not; the vouchers are issued to individuals, not to religious institutions. And even though those individuals may choose to present them to religiously based schools, we must recognize that the Establishment Clause is not violated every time tax money is conveyed by private citizens to religious institutions. Why? Well, if that were so, then anyone on welfare could be prohibited from putting their money into their church’s Sunday collection basket. Tax-generated scholarship monies could then, for example, not be spent at the University of Notre Dame or Brigham Young University, etc. Likewise, if a policeman protects a Catholic priest, it is not because the priest or the policeman is a Catholic, it is because the priest is a member (or guest) of our society. Firemen protect Catholic churches and Catholic schools not because they are Catholic but because they those assets are a part of our public social endowments. Neither the policeman nor the fireman is bound to inquire as to religious affiliations before they act, spending public tax generated monies as they do in discharging their duties. Bigots and demagogues may claim this advances the cause of religion, but the courts have decided otherwise. The same holds true for educational school-choice vouchers issued to private citizens; what those individual citizens do with them neither advances nor inhibits the cause of religion.

What about the third prong? Do vouchers create an excessive entanglement between government and religion, between State and Church? Again, the courts have declared they do not. The general principle undergirding the jurisprudence that has developed with respect to the Establishment Clause is that tax dollar generated government programs must be wholly neutral in offering benefits to citizens without reference to religion. Religious neutrality is the controlling factor. But in being “neutral” the U.S. Supreme Court has admonished that all state courts and legislatures must be sure that they do not inadvertently prohibit the extension of general State benefits to citizens because those benefits might help them exercise their religiously based free choices. In other words, to test whether or not any religious belief is involved violates the First Amendment’s standard of neutrality. There is a “free exercise” clause in the First Amendment also!

Do school choice vouchers provide benefits to citizens based on their religious beliefs? Certain demagogues may say so, the courts do not. Vouchers provide a financial benefit that is ultimately controlled by private choices of individual citizens. You see, the question is NOT where the money ultimately flows, it is rather WHO makes the choice? It’s the path along which the money flows that is controlling. If the path is through a religious institution, then the courts will block it. If the path is through the private choices of individual citizens, the courts will allow it, irrespective of what lies at the end of the path.

The Lemon test is still operative and controlling, regardless of demagogic rhetoric gubernatorial candidates may employ to enflame sectarian passions in Michigan’s electorate. The three prongs have been met. School choice vouchers have a secular legislative purpose in promoting the general welfare of Michigan’s citizens, particular its low-income citizens. Its primary effect neither advances nor inhibits religion. And school vouchers do not create excessive entanglement between Church and State because they are directed at benefiting individual private citizens, not church related institutions.