Public funding of religious education implicates the establishment clause of the First Amendment, but it also raises issues of religious liberty. Such funding might impair religious voluntarism by encouraging religious over nonreligious educational alternatives. It might also intrude on the conscience of taxpayers who object to supporting religious beliefs they do not share. Conversely, the denial of funding can raise competing concerns. It might discourage religious choices, or at least deny equal respect to religious decisions and thereby impair the value of religious neutrality. Influenced by these and other constitutional values, the Supreme Court sometimes has ruled that the establishment clause precludes the funding of religious education. Since the 1980s, however, it increasingly has found such funding permissible. Witters v. Washington Department of Services for the Blind, decided in 1986, provides an early example of this trend. It also exemplifies, more specifically, the Court’s general approval of neutral funding programs that extend aid to religious schools or colleges only indirectly, as a result of private choice.
In preparation for a religious career as a pastor, missionary, or youth director, Larry Witters was attending a private Christian college in Spokane, Washington. Because he suffered from progressive blindness, he was eligible for special financial aid under the terms of a Washington statute designed to ‘‘assist visually handicapped persons to overcome vocational handicaps.’’ Noting the religious nature of his education, however, the Washington Commission for the Blind denied Witters any aid, asserting that it would be unconstitutional for the commission to use ‘‘public funds to assist an individual in the pursuit of a career or degree in theology or related areas.’’ Witters sued for relief, but the Washington Supreme Court ruled against him, citing the establishment clause.
In a unanimous decision, the U.S. Supreme Court reversed. Writing for the Court, Justice Thurgood Marshall emphasized that the program of funding was neutral and nondiscriminatory. It did not target religion for special advantage. Instead, the aid was broadly available to students pursuing various careers. In addition, the aid was not in the form of ‘‘direct subsidies’’ to religious institutions. Instead, it was paid to the disabled students themselves, who transmitted it to the colleges of their choice. Thus, any aid that flowed to religious institutions did so ‘‘only as a result of the genuinely independent and private choices of aid recipients,’’ thereby avoiding any implication that the state itself was sponsoring or promoting religion.
Justice Marshall also noted that ‘‘no more than a minuscule amount of the aid awarded’’ under this program flowed to religious education. This factor was not critical to the Witters decision, however, a point that the Supreme Court reiterated in its 2002 decision in Zelman v. Simmons-Harris. In Zelman, the Court approved a neutrally drawn school vouchers program, even though most of the voucher parents were choosing religious schools. The Court cited Witters as a relevant precedent, suggesting that Witters now stands for the broad proposition that states generally are free, if they wish, to include religious education in neutrally drawn programs of indirect funding.
At the same time, the Supreme Court has made it clear in another recent decision, Locke v. Davey (2004), that the constitutional doctrine of Witters and Zelman is permissive, not mandatory. According to Locke, states—as a matter of state law—can maintain a stronger separation of church and state than that required by the establishment clause, and, in so doing, they have some discretion to exclude religious beneficiaries from funding programs even when the establishment clause would permit them to be included.
DANIEL O. CONKLE
References and Further Reading
Cases and Statutes Cited
See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clauses