Last Wednesday, the Supreme Court heard argument in Zelman v. Simmons-Harris, easily the most significant case of the term. The case presents the claim, adopted by the U.S. Court of Appeals for the Sixth Circuit, that a Cleveland, Ohio school vouchers program is an unconstitutional establishment of religion because most of the children who participate in the program use their vouchers to attend religious, primarily Catholic, schools.
Most of the legal commentary, mirroring the positions taken in the historic number of briefs filed in the case, has focused on whether the Cleveland program violates the middle prong of the long-standing and much maligned three-part test from Lemon v. Kurtzman, namely, whether the program has the effect of advancing religion. Heaven forbid that anything so nefarious could possibly be going on!
Our nation's founders must be turning over in their graves when they look down and see how seriously that question is being debated in our nation's highest court. For them, it would have been a nonsensical question. A little, or even a lot, of aid flowing incidentally to religion as the result of independent choices made by parents was not the stuff that "Establishments of Religion" were made of. Compelled attendance at Sunday church services held by the favored sect; ministers of the favored sect on the payroll of the government; limitations on eligibility for office or even voting to members of the preferred sect. That was what the Founders meant when they spoke of established religions. And they wanted the federal government to have no power to erect such an established national church.
We sometimes forget, however, that the First Amendment's prohibition on the Establishment of Religion was not drafted out of hostility to religion. It was drafted, rather, out of concern that the national government might interfere with existing state-established churches if it established a national church of its own. James Madison's first draft of what would ultimately become the Establishment Clause of the First Amendment prohibited Congress from establishing a national religion. During the debate, some members contended that Madison's language did not give enough protection to religion as it was then supported in the states, and the language was ultimately changed to provide that Congress shall make no law respecting the establishment of religion, perfectly capturing the intended prohibition both of a national church and of federal interference with existing state support of religion.
None of this original purpose was considered by the Supreme Court in 1947 when it held in Everson v. Board of Education that the Due Process Clause of the 14th Amendment, adopted nearly 80 years earlier, actually required the federal courts to do the very thing that the First Amendment expressly forbade, namely, interfere with state support of religion. And not only interfere with it, but actually to prohibit any state support of religion whatsoever.
After the last decade of revival of a jurisprudence of federalism, it should be clear just how serious an intrusion on states rights this "incorporation" of the Establishment Clause really is. It is an axiomatic principle of constitutional law that one of the key powers not delegated to the federal government but reserved to the states is the power to regulate the health, safety, welfare and morals of the people — the so-called "police" power. The founders believed that the effective exercise of this power, particularly the focus on the morals of the people, was critical to developing and sustaining the kind of virtuous citizenry they thought necessary to the perpetuation of our republican form of government.
Yet the founders also believed that reliance on and support of religion was a critical component of the exercise of this core state power. Indeed, as President George Washington noted in his Farewell Address, "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." Pennsylvanian Benjamin Rush was even more blunt: "Where there is no religion, there will be no morals." The famous Northwest Ordinance, enacted by the Continental Congress in 1787 and re-enacted by the very first Congress — the same Congress that approved the Establishment Clause of the First Amendment — declared: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
The founders' views on religion in the states are thus fundamentally incompatible with the strict separationist view of the Establishment Clause that has prevailed in the Supreme Court over the past half century. Whether or not that view is legitimate vis-Ã -vis the federal government, its application to the states clearly constitutes an intrusion on state sovereignty that makes the other intrusions that have recently given the Supreme Court pause look like child's play. Worse, depriving the states of one of the essential tools, if not the essential tool, in their police power arsenal has proved a recipe for disaster. If the Rehnquist Court is really serious about its federalism, it needs to rethink its incorporation of the Establishment Clause and, at the very least, allow the States a lot more leeway for the incidental support of religion that it has permitted to the federal government. Only then will the States be able to successfully return to their most important mission, that of educating a virtuous citizenry capable of fulfilling the obligations of self-government.