Voucher win's ripple effect on faith groups

The Supreme Court did more last week than hand a victory to supporters of school vouchers. Its controversial 5-to-4 ruling presented a heady breakthrough for advocates who seek to expand the place of religion in American public life.

Christian organizations and scholars have been working to nudge the court into a new interpretation of the First Amendment that would open the door to widespread change, putting faith institutions on an equal footing with secular groups as recipients of public funds. They've had small victories in recent years, but hope this serves as the "tipping point."

The shift away from strict separation of church and state could signal a new era of religious accommodation or of religious divisiveness – but more likely both.

"This decision by the court together with the faith-based initiative will, in the long run, show that the roughly 50-year period of strict separationism is an aberration from what the First Amendment is about," predicts James Skillen, president of the Center for Public Justice (CPJ), a Christian policy research group.

Other Christian advocates claim the court decision also removes any constitutional hurdle to President Bush's faith-based initiative for social programs, which stalled in the Senate after months of bitter wrangling.

Supporters of church-state separation, however, say it is a significant but limited decision, in which the court accepts for the first time that large amounts of tax dollars will end up in religious coffers, but not by direct government decisionmaking.

"This only applies to vouchers," says K. Hollyn Hollman, general counsel for the Baptist Joint Committee. "It doesn't further the desire some people have to give public funding directly to religious institutions."

"They can try to put Charitable Choice on a voucher basis, but that's difficult to do for practical reasons," says Marc Stern, legal director for the American Jewish Congress. As the cornerstone of the faith-based initiative, Charitable Choice aims to give religious groups access to a wide array of federal grants for social service, housing, and justice programs.

Opponents worry that in an increasingly diverse society, it will lead to religious competition and favoritism. In his vigorous dissent, Justice Stephen Breyer emphasized the role the First Amendment has played in "protecting the nation's social fabric from religious conflict."

The question is whether the new thinking on church-state relations will become the wave of the future through court appointments. Mr. Bush, for example, has nominated Michael McConnell, a constitutional scholar and perhaps the lead proponent of funding to religious groups, to the 10th Circuit Court of Appeals.

The shift in constitutional perspective was born of social-political change, including the culture wars and the country's move to the right politically. "Religion reentered the public square in a very powerful way in the 1980s, and it changed the political landscape and the questions the court asked about how to apply the establishment clause," says Charles Haynes of the Freedom Forum First Amendment Center.

In the 19th century, Protestant-Catholic battles over the schools had strengthened the no-aid-to-religion position, says Douglas Laycock, professor of law at the University of Texas. "But in the 1980s, evangelical Protestants switched sides – they had been the group most opposed to aid to Catholic schools, and then they found themselves with their own network of schools."

Now some evangelical Christian leaders are organizing an exodus from the public schools notes Dr. Haynes, fueling a powerful nationwide movement. Further impetus comes from the dissatisfaction of many African-American parents with inner-city schools and the preference of some Muslim Americans to send their children to Islamic schools.

Meanwhile, the conservative movement to limit government encouraged legal theorists and think tanks of various stripes to press new views of private-public, religious-secular interaction.

Rather than treating religion under the First Amendment as a case for government hands off, some began arguing that it called for "equal treatment" and "nondiscrimination" toward religious groups. That led to key court decisions such as requiring the University of Virginia to fund an evangelical publication along with other student activities.

CPJ and others began promoting the idea that equal treatment of religious groups should apply wherever government provides funds to solve societal problems. "If citizens happen to be rendering a service precisely because they are religious, why would government establish criteria to keep them from participating in the same way as other groups?" Skillen asks. "Government has to be neutral and give equal treatment to all."

Ms. Hollman counters by questioning whether those seeking equal treatment in funding are willing to take equal treatment in regulation and accountability. The struggle over the faith-based initiative suggests they are not, she adds. In addition, "it is inevitable any time that the government funds religion that it will tend to do so at the expense of other religions," she says.

In education, the battleground shifts to the states, many of which have constitutional prescriptions even stronger than the First Amendment, and the people will have to decide whether voucher programs are where they want to spend tax dollars.

Equal treatment of religious groups under the faith-based initiative still faces a constitutional hurdle and a contentious Congress. Several challenges to its constitutionality are already in the courts.