The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose" or "effect" of advancing or inhibiting religion. Agostini v. Felton, 521 U. S. 203, 222-223 (1997) ("[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the `effect' of advancing or inhibiting religion" (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion.
To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, Mitchell v. Helms, 530 U. S. 793, 810-814 (2000) (plurality opinion); id., at 841-844 (O'Connor, J., concurring in judgment); Agostini, supra, at 225-227; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 842 (1995) (collecting cases), and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U. S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.
(Emphasis supplied.) I think Rehnquist's description is an excellent example of the two pronged strategy that the Right has engaged to break down the "separation of church and state." First, claim that "private choice" use of government funds that promote religion is well established as constitutional (it wasn't.) Second, claim that the jurisprudence regarding direct aid to religion by the government has "changed significantly," implying that the law is unsettled in this area. It never was until the Right gained the upper hand on the Court.
In Zelman, the Court, in a 5-4 vote, proceeded to rule the school voucher system that permitted payments to religious schools constitutional as a "private choice:"
Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. [. . .] We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional.
Justice Souter, in dissent, described the success of the Right in doing away with "the separation of church and state":
The applicability of the Establishment Clause1 to public funding of benefits to religious schools was settled in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), which inaugurated the modern era of establishment doctrine. The Court stated the principle in words from which there was no dissent:
No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
The Court has never in so many words repudiated this statement, let alone, in so many words, overruled Everson.
Today, however, the majority holds that the Establishment Clause is not offended by Ohio's Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious schools. [. . .] How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today's decision on those criteria.
And this is only the first part of the Right's campaign to abolish the separation of church and state. Thus, while too many Democrats spend their time worrying about whether it is appropriate to compare the religious extremists of Afghanistan with the religious extremists of the United States, Christine O'Donnell's vision, the vision of American Theocrats of the Right, continues to get closer to reality. Soon Christine O'Donnell may be right to question whether the First Amendment provides for separation of church and state.
Worrying if progressives are using intemperate language about the Extremist Right is a luxury we can not afford. The Extremist Right has no such qualms and continues its succeeding campaign to impose religion through government means. As Justice Souter wrote:
It is virtually superfluous to point out that every objective underlying the prohibition of religious establishment is betrayed by this scheme [. . .] the first being respect for freedom of conscience. Jefferson described it as the idea that no one "shall be compelled to ... support any religious worship, place, or ministry whatsoever," A Bill for Establishing Religious Freedom, in 5 The Founders' Constitution 84 (P. Kurland & R. Lerner eds. 1987), even a "teacher of his own religious persuasion," ibid., and Madison thought it violated by any " `authority which can force a citizen to contribute three pence ... of his property for the support of any ... establishment.' " Memorial and Remonstrance ¶ ;3, reprinted in Everson, 330 U. S., at 65-66. "Any tax to establish religion is antithetical to the command that the minds of men always be wholly free," Mitchell, 530 U. S., at 871 (Souter, J., dissenting) (internal quotation marks and citations omitted).
Christine O'Donnell is of the Extreme Right. She parrots their words and thoughts. And while their program has not yet reached fruition - the phrase "separation of church and state" still has resonance - it can not be denied that the Extreme Right's campaign is gaining in success, and will continue to do so if not confronted. The philosophical discussions on the Left regarding the use of the phrase "American Taliban" are sideshows. The real threat is being ignored.
Speaking for me only
