Breaching The Church-State Wall

In proposing a voucher system that would subsidize the tuition of children who choose parochial schools, the Bush Administration is confronting one of the nation's sacrosanct principles: the First Amendment's stricture against "establishment of religion" creates a wall between church and state. That hurdle, while high, may not be impossible to surmount. Over the years the Supreme Court has wrestled with the distinction between direct funding of religious institutions, which is forbidden, and indirect aid that is designed to serve a secular purpose, which may be permissible.

One guiding interpretation is the court's 1947 Everson v. Board of Education decision, which said public money could be spent on busing New Jersey parochial school students because it benefited the children. But funds could not go directly to the school involved because tax money could not be used to support any "institution which teaches the tenets and faith of any church." In 1971 the court strengthened that position further when it ruled in Lemon v. Kurtzman that the state could not reimburse private religious schools for the costs of teaching secular subjects. Chief Justice Warren Burger set forth a stiff tripartite test for legitimate government aid. There must be a secular purpose; the principal effect must neither advance nor limit religion; nothing done should foster "an excessive government entanglement with religion."

In recent years the court has been divided on the proper scope of government aid -- direct or indirect -- to sectarian schools. In 1983, by a 5-to-4 vote, it let stand a Minnesota law that permits parents to deduct parochial school tuition from their state income taxes. Many experts believe there is a good chance the court would uphold a voucher plan like the one the Administration proposes. "It is exceedingly unlikely that this will be seen as a forbidden form of establishment," says Harvard law professor Laurence Tribe, a leading constitutional scholar. "Given the existing doctrine about the separation of church and state, I do not see a serious First Amendment problem in a reasonably written voucher program."