1971:
Lemon v. Kurtzman
The court, in an 8-1 vote, struck down laws in Rhode Island and Pennsylvania that provided salary supplements for teachers in private religious schools. Of more lasting significance, the court used the case to establish a three-part test for evaluating the constitutionality of government programs that benefit religion.
Under the so-called Lemon test, the statute or program must have a secular legislative purpose, its primary effect must be one that neither advances nor inhibits religion, and it must not result in excessive entanglement of government in religion.
Several of the current justices have called for the replacement of Lemon with a less stringent test, and some justices have all but ignored the test in recent rulings dealing with religion. However, the court has yet to clearly overrule the 1971 decision.
1973:
Committee for Public Education and Religious Liberty v. Nyquist;
Sloan v. Lemon
In these two cases, the court struck down programs in New York state and Pennsylvania that provided tuition tax credits and tuition reimbursements for parents who sent their children to private schools. The vast majority of nonpublic schools in each state were Roman Catholic.
At issue in the Nyquist case was a New York program that provided grants of $50 to $100 per child in reimbursement to low-income parents who sent their children to private schools. The court’s opinion, delivered by Justice Lewis F. Powell Jr., cited several reasons the program failed to pass constitutional muster, including the fact that the programs gave parents an incentive to send their children to religious schools, thereby removing the government’s neutrality toward religious education.
The fact that the reimbursements went to parents rather than directly to the schools did not save the program because the funds eventually made their way to the schools, Justice Powell wrote.
In the Sloan case, the court rejected the argument that Pennsylvania’s tuition-reimbursement program was constitutional because the grants were available to parents of all children in private schools. The court held that the program violated a constitutional mandate against government financial support of religion.
Opponents of recent voucher proposals contend that these two precedents have not been undermined by more recent High Court rulings and could be cited to invalidate voucher programs that include religious schools.
1983:
Mueller v. Allen
Changing course somewhat from the Nyquist and Sloan rulings, the court upheld a Minnesota law that allowed parents to take a state tax deduction for their children’s expenses for tuition, textbooks, and transportation for attending public or private schools. Then-Associate Justice William H. Rehnquist wrote the majority opinion in the 5-4 ruling, in which he emphasized that the benefit was constitutional because it was available to all parents.
The dissenters called the program a thinly disguised benefit for private religious schools. They pointed out that because most parents of public school children did not face tuition expenses, the program in reality provided a much greater benefit to private school parents.
1986:
Witters v. Washington Department of Services for the Blind
The court unanimously upheld the payment of state vocational-assistance funds to a blind student attending a Bible college. Justice Thurgood Marshall, in the main opinion, wrote that the “fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the state.’' He noted that the vocational aid could be applied to a range of public and private programs and was not skewed toward benefiting religious institutions.
1993:
Zobrest v. Catalina Foothills School District
The court ruled 5-4 that a school district’s provision of a sign-language interpreter for a deaf student attending a Roman Catholic high school would not be a violation of the U.S. Constitution’s ban on government establishment of religion. The district had refused to provide the interpreter because it feared a possible church-state violation. It had noted that it would have provided the interpreter, under federal special-education law, had the student attended a nonsectarian private school.
Chief Justice Rehnquist wrote for the majority that government programs that neutrally benefit a broad class of citizens without regard to religion do not violate the establishment clause. Voucher proponents hailed the decision as providing further guidance about how a constitutional voucher program could be constructed.
1995:
Rosenberger v. Rector and Visitors of the University of Virginia
Voucher proponents also were heartened by the court’s 5-4 ruling last term that a university was required under the U.S. Constitution to subsidize the printing costs for a Christian magazine on the same basis as other student publications. Writing for the dissenters, Justice David H. Souter warned that the ruling marked a significant shift in church-state law and was the first time that the court approved “direct funding of core religious activities by an arm of the state.
Voucher opponents, however, questioned the impact of the ruling in the debate over private school vouchers.
