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Mitchell
v. Helms
533
U.S. 793 (2000)
Commentary
by Samuel M. Ventola, Esq.
Rothgerber
Johnson & Lyons Religious Institutions Group
Copyright,
September 2001
The
opinion joined by four justices finds that aid to religious
schools, in the form of allowing them to participate in
a program allowing all schools to borrow textbooks and instructional
materials from the government, does not violate the Establishment
Clause if it is given "neutrally," i.e., the program
is enacted for a secular purpose and the participation of
religious providers is permitted under religion-neutral
criteria. However, a majority of justices did not agree
to that opinion, as they were joined by two justices who
wrote a separate concurring opinion. The concurrence of
Justices O'Connor and Breyer indicates that they would apparently
approve of aid to religious schools under more narrow circumstances,
on a case-by-case basis. The O'Connor/Breyer view appears
to be that neutrality is only "one factor" to consider.
The concurrence also appears to require that public funds
not be used "to finance religious activities." However,
the concurrence would apparently allow sectarian participation
in aid programs, even when they financially benefit the
Church, when the aid flows to the religious institutions
"only as a result of the genuinely independent and private
choices of aid recipients."
Until
a clear majority of the justices endorses a test establishing
when aid to religious schools is permitted, lower courts
will be inclined to follow the concurring opinion of Justices
O'Connor and Breyer. O'Connor and Breyer would apparently
permit participation in religious schools in a government
aid program in two circumstances: (1) programs which do
not provide funds which could be used for religious activities
(such as the lending of textbook and instructional materials
in this case), or (2) voucher-type reimbursement systems
which depend on the individual choices of the program beneficiaries.
However, the concurrence declines to announce any reliable
test, and instead states that all aid programs must be reviewed
on a case-by-case basis.
The
issues addressed by Mitchell will likely be cleared
up in the near future, as the Supreme Court has now granted
certiorari to a case challenging the Ohio voucher program.
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