Document Type

Article

Publication Date

Winter 2003

Keywords

State constitutional provisions, Blaine Amendments, Zelman v. Simmons-Harris, Establishment Clause, State funding, Religious institutions, Voucher program

Disciplines

Constitutional Law | First Amendment | Religion Law | State and Local Government Law

Abstract

In Zelman v. Simmons-Harris, the United States Supreme Court held-by a vote of 5 to 4-that the funding of religious schools with taxpayer money through voucher programs does not violate the Establishment Clause of the United States Constitution. Emboldened by this success, voucher proponents now attack state constitutional provisions (often called "Blaine Amendments") that prohibit taxpayer funding of religious schools. These state provisions, which may stand in the way of religious-school voucher programs, are attacked as violative of the federal Constitution, rooted in anti-religious bias, or otherwise illegal or unwise.

It is my view that efforts to force states to fund religious schools through voucher plans or otherwise will and should fail. My reasons for this conclusion are two-fold. First, there is no viable federal constitutional argument that states are required to fund religious institutions, including religious schools. Second, there are excellent reasons why the funding of religious institutions is very bad and dangerous policy-reasons which states are free to use as the groundings for their own policies, and which the decision in Zelman has left untouched.

Comments

This article pre-dates the author’s tenure at Cornell Law School.

Publication Citation

Published in: First Amendment Law Review, vol. 2 (Winter 2003).

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