The Supreme Court's decision upholding the constitutionality of taxpayer-financed vouchers for private and religious schools was doubtless a significant victory for the cause of religious and educational freedom in America. But supporters of vouchers — and the prerogatives of religion in our national life generally — should note soberly that the victory was the result of a sharply divided 5-4 decision. And more important than the closeness of the vote was the clear and frightening hostility of the Court's liberal bloc toward those who take their faith seriously.
As all four of the dissenters imply, in varying degrees, those who take their religious faith seriously enough to pursue religious education for their children may pose a danger to society. You see, taking one's religious faith seriously may mean taking it too seriously for the public good, or so these wise men argue. All three dissenting opinions contend that such religious devotion is a grave threat to America, and advocate the use of the Constitution's Establishment Clause as a weapon against it.
The whole purpose of Justice Stephen Breyer's dissent — joined by two others — is to warn of the risk from voucher programs "in terms of religiously based social conflict." He argues that the majority's decision could lead to "a form of religiously based conflict potentially harmful to the Nation's social fabric." Justice John Paul Stevens joins in, explaining that he has "been influenced by [his] understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent." And Justice Souter, whose opinion was signed by all the Court's dissenters, fears that vouchers will threaten the "confidence that religious disagreement will stay moderate," and refers in dark terms to "the divisiveness permitted by today's majority."
If that is not clear enough, Justice Stevens makes sure to identify his criticism of religious education — which he pejoratively calls "indoctrination" — with the view of many cultural liberals that people of serious faith in America are linked to religious fanaticism and violence around the globe. Such was the argument made by those in the American Left who, in the wake of the 9-11 attacks, called for increased governmental scrutiny of American religious groups. Justice Stevens leaves no doubt that this connection is foremost in his mind, referring explicitly to "the Balkans, Northern Ireland, and the Middle East."
The Court's liberal bloc wants to use the Constitution's Establishment Clause as its weapon against this great threat, and in doing so it turns the meaning of that clause on its head. This is something that Justice Breyer himself concedes, even after an astoundingly flawed attempt to connect his views to the original intention of America's founders. Notwithstanding his references to the founding, Breyer admits that his interpretation of the Establishment Clause reflects a "development" of constitutional interpretation in the 20th-century Court. Advocating an amorphous constitutionalism whereby judges "interpret" the Constitution to mean whatever they like, he explains that his departure from the original idea behind the Clause is justified by the new historical circumstances of modern America.
In contrast, Justice Clarence Thomas, in his opinion concurring with the Court's majority, faithfully adheres to the Constitution's original intent and plain meaning. As he explains, the whole point behind the Establishment Clause was to permit greater freedom for individuals to practice their religious faiths by prohibiting the federal government from establishing a particular church. The application of this clause to the states through the 14th Amendment was intended to expand the religious liberty of individuals, not restrict it. As Justice Thomas well says, "There would be a tragic irony in converting the Fourteenth Amendment's guarantee of individual liberty into a prohibition on the exercise of educational choice."
It is crucial to be aware of the dissenters' views of the Establishment Clause and of their hostility to organized religion generally, because they make clear that they intend to implement these views should they ever gain another vote on the Court. Justice Souter writes that "my own course as a judge on the Court cannot . . . simply be to hope that the political branches will save us from the consequences of the majority's decision," and he concludes with the hope of a change in direction in a future Court. Justice Breyer, even when referring to fairly well established religious freedoms under the Establishment Clause, merely "concedes" that "the Establishment Clause currently permits" these practices.
This shocking candor makes clear what is at stake as new justices are appointed to the bench in coming years. And this ought to make clear what is at stake in this year's elections for the U.S. Senate, not to mention the presidency in 2004.
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