INTRODUCTION

[This chapter was completed before the Supreme Court, on June 27, 2002, decided the Cleveland school voucher case: Zelman v. Simmons-Harris. The Court ruled, by a vote of five to four, that the Cleveland school voucher program does not violate the Establishment Clause of the United States Constitution. As one can infer from my argument in this chapter, I think that the Court's ruling was correct.]

Both during his campaign for the presidency of the United States and after moving into the White House, George Bush made two proposals that fanned the flames of the ongoing controversy over the proper role of religion in the nation's public life. Expressing alarm at the persistently sorry state of many of the nation's public elementary and secondary schools, Bush proposed a program of school vouchers in which even religiously affiliated schools would be eligible to participate. More famously, he proposed making it easier for “faith-based” social service providers to gain access to federal financial support. In response to Bush's (and similar) proposals, many have insisted, and many others have denied, that government aid to religiously affiliated entities, such as elementary and secondary schools and social service providers, would violate the constitutionally mandated separation of church and state. In this chapter, I inquire whether the constitutional imperative that government not “establish” religion leaves any room for government to spend money in support of religiously affiliated schools.