Establishment Clause

School Vouchers and the Establishment Clause

In the first few chapters of Under God: Religious Faith and Liberal Democracy Michael J. Perry explores the basic definition of the Establishment Clause of the Constitution of the United States and what he believes is a violation of it. He discusses issues such as same-sex marriage, abortion, and school vouchers, the latter of which will be our focus. Perry’s conclusion, that school vouchers for religious schools do not necessarily violate the Establishment Clause seems to be a valid one but his dismissal of Justice O’Connor’s “direct/indirect distinction” is troubling, as this distinction is in fact important to the constitutionality of school vouchers (Perry). The Establishment Clause is a section

School vouchers distributed in this scenario would not violate the establishment clause, as the determining factor in whether a particular school received the voucher is their curriculum, not their religious affiliation. Such a requirement would not affect the curriculum of already respected school as they already have certified teachers and successful students. Perry goes on to outline two criteria that he thinks must be met in order to maintain the constitutionality of the school voucher program. First, as discussed, “the eligibility requirements…are religiously neutral” and second, the decision to enact the program in certain areas is not based on a bias for or against a religion (9). If there is a religion whose schools are more favored, then this is because they “sponsor many eligible” schools not because the religion itself is “truer” (9). While this second criteria may be implicit in the first, the distinction is

The one that he particularly disagrees with is the direct/indirect distinction espoused by Justice O’Connor and four other justices. As Perry puts it, “I cannot fathom why it should make a constitutional difference that voucher money goes directly to a parent, who then gives it to the school, rather than directly to the school, upon certification that an eligible child has enrolled there” (10). Perry views both of these cases as constitutionally identical. He is wrong. In a later case (Ohio Pilot Project) that Perry himself brings up, Justice O’Connor endorsed a school voucher program that had the voucher “checks are mailed to the school selected by the parents, where the parents are required to endorse the checks over to the school in order to pay tuition” (10). The need for this direct/ indirect distinction, and the reason that this Ohio program is constitutional is because it helps protect the features of voucher programs that Perry himself