Legal Commentary

Big New Establishment Clause Case, on Religious Groups? Participating in Evenhanded Government Funding Programs

By Eugene Volokh

The Supreme Court just agreed to hear Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn, which are the latest cases to deal with the question: When may religious institutions ? here, schools ? participate in government funding programs that are equally open to secular institutions and religious institutions (or, as here, to groups that pay for tuition at secular schools and groups that pay for tuition at religious schools)? 

I think the answer is that such programs should almost always be constitutional, regardless of what fraction of the money ends up going to religious schools. That?s true whether the programs are the GI Bill (which funded veterans? college education, whether at religious universities or secular universities), a funding system for vocational training for the blind (which included training for would-be ministers as well as for other trades and professions), the school choice program in Zelman v. Simmons-Harris, or the tax credit system at issue in this case, where taxpayers can get a tax credit for contributing to scholarship-giving organizations, regardless of whether the organizations chosen by the taxpayers give scholarships only for religious schools, only for secular schools, or for a mix of religious and secular schools. I discuss this in considerably more detail in my Equal Treatment Is Not Establishment article.

But in any event, the Court?s decision here may be pretty significant, and may strengthen the Zelman principle to make clear that these sorts of programs are indeed constitutional. Justice O?Connor joined the Zelman majority, but wrote a concurrence that could be read as expressing a somewhat narrower position than the majority?s, and took a different view from Justices Rehnquist, Scalia, Kennedy, and Thomas in the related field of evenhanded per-capita aid programs. I suspect that Chief Justice Roberts is at least as supportive of religious groups? participation in a wide range of evenhanded funding programs as Chief Justice Rehnquist was, and that Justice Alito is more supportive of it than Justice O?Connor was. So unless the case is decided on standing grounds, I expect the opinion to be a pretty solid win for the Arizona program and for other such programs more generally (so long as they are legally equally open to secular and religious institutions).

For links to the lower court opinion striking down the program, and to the opinions concurring in and dissenting from the denial of en banc rehearing of that decision, see here.

Full post as published by The Volokh Conspiracy on May 24, 2010 (boomark / email).