By upholding Ohio's school voucher program against an Establishment Clause challenge to the inclusion of religious schools, the Supreme Court issued on Thursday what is easily the most significant case of the term. As a result of the decision, thousands of poor, often minority students will be able to escape the cesspool that too frequently characterizes inner city public education.
The most far-reaching aspect of Thursday's decision comes not in the majority opinion, however, but in the concurring opinion by Justice Clarence Thomas. In what is becoming a trademark in his jurisprudence, Justice Thomas invited the Court to reconsider, "as a matter of first principles," the wholesale incorporation of the Establishment Clause against the states that began, without any constitutional analysis, in the 1947 case of Everson v. Board of Education. It is an invitation worthy of the Court's reply.
Contrary to many recent ACLU-driven court decisions, the First Amendment's prohibition on the Establishment of Religion was not drafted out of hostility to religion. Its aim, rather, was to prevent Congress from establishing a national religion and interfering with existing state support of religion.
James Madison's first draft of what would ultimately become the Establishment Clause of the First Amendment was, "nor shall any national religion be established." During the debate over the First Amendment, some Representatives contended that Madison's language did not give enough protection to religion as it was then supported in the states. The language was ultimately changed to provide that Congress shall make no law respecting the establishment of religion, perfectly capturing the intended prohibition both of a national church and federal interference with existing state support of religion.
None of this original purpose was considered by the Supreme Court when it held in Everson that the Due Process Clause of the 14th Amendment required the federal courts to do the very thing that the First Amendment expressly forbade, namely, interfere with state support of religion. And not only interfere with it, but actually prohibit any state support of religion whatsoever.
In the last decade the Court has revived federalism. But there is no greater intrusion on states rights than the "incorporation" of the Establishment Clause. It is an axiomatic principle of constitutional law that one of the key powers not delegated to the federal government but reserved to the states is the power to regulate the health, safety, welfare, and morals of the people — the so-called "police" power. The founders believed that the effective exercise of this power, particularly the focus on the morals of the people, was critical to developing and sustaining the kind of virtuous citizenry they thought necessary to the perpetuation of our republican form of government.
Yet the founders also believed that reliance on and support of religion was a critical component of the exercise of this core state power. Indeed, as President George Washington noted in his Farewell Address, "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." Pennsylvanian Benjamin Rush was even more blunt: "Where there is no religion, there will be no morals." The famous Northwest Ordinance, enacted by the Continental Congress in 1787 and re-enacted by the first Congress under the Constitution — the same Congress that approved the Establishment Clause of the First Amendment-declared: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
The founders' views on religion in the states are incompatible with the strict separationist view that has prevailed in the Supreme Court over the past half century. "Incorporating" the Establishment Clause to apply to the states is clearly an intrusion on state authority that makes the other intrusions that have recently given the Supreme Court pause look like child's play. Worse, depriving the states of one of the essential tools, if not the essential tool, in their police power arsenal has proven a recipe for disaster.
As Justice Thomas noted, it may well be that state action with respect to religion should be evaluated differently than similar action by the Federal Government. His proposed test is a simple one:
While the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest.
That test gives full protection to the religious liberty interests of the Free Exercise Clause that are properly made applicable to the States via the Fourteenth Amendment, but also protects the States ability to rely on religion — its most potent tool — when fulfilling its police power obligation to protect the health, safety, welfare, and morals of the people. If the Court accepts Justice Thomas's invitation, we may finally find the means to reverse the moral decline of our nation and restore to our citizenry the kind of moral virtue our nation's founders thought critical to sustain our republican form of government.
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