School voucher ruling:
Shows neutrality, not separation, is standard

		Eye on the  Capitol  John Huebscher

The recent U.S. Supreme Court ruling that use of publicly funded vouchers to send children to religious schools is constitutional was good news for families.

The decision also continues a trend away from the "wall of separation" metaphor that has distorted debates on church state relations for over 50 years.

Church-state relations

As many people have pointed out, the term "separation of church and state" does not appear in the First Amendment. Rather, it was "read into" the Constitution by the U.S. Supreme Court in 1947, some 160 years after the First Amendment was ratified.

However, almost since the justices used that term, they and their successors have sought a better way than strict separation to define the relationship between government and religion in a modern society.

Separation arguments

As I suggested in this column four years ago, those who argue for strict separation between church and state seem to believe that society is limited to two choices in defining the relationship between religion and government.

On the one hand, the society can establish a state religion, as had been the case in Europe. On the other, it could prohibit nearly all contact between church and government. In 1947, the Supreme Court flirted with the latter option.

Principle of neutrality

Almost immediately, however, the courts began to consider that the First Amendment permits another choice. This third way involves neither establishment of a state church nor a wall of separation but rather a "principle of neutrality" that neither establishes nor discourages religion.

The major break came in the case of Lemon v. Kurtzman, decided in 1971. In that decision, the justices scrapped the wall of separation for a three-part test, known today as "the Lemon test." The Lemon test holds that a law is valid if a) it serves a secular purpose, b) it does not have the effect of endorsing or inhibiting religion, and c) it can be applied without requiring an "excessive entanglement" between the government and religion.

Using Lemon test

In the years since Lemon, laws that have met the three-part test have survived court scrutiny, while those that failed one or more of its requirements did not.

Significantly, our own Wisconsin Supreme Court began using the Lemon test as its guide for interpreting our state Constitution. As a result, whereas in the early 1960's our high court had said Wisconsin's Constitution was among the most stringent in the nation in enforcing separation of church and state, by the 1970's it was routinely holding that practices permitted under the Lemon analysis would pass constitutional muster under the Wisconsin Constitution as well.

Justice Rehnquist's opinion in the voucher case concludes that a parental choice law allowing the state to assist parents in making a personal, private choice to educate their children in the manner they deem best is an example of neutrality - a ruling that mirrored the thinking of our own Supreme Court in 1998.

One can only hope that the "principle of neutrality" will last longer than the "wall of separation" as future cases on the relationship between church and state are considered.

John Huebscher is executive director of the Wisconsin Catholic Conference.