Sunday, September 08, 2024

Mitchell v. Helms: Neutrality vs. No Direct Aid

I want you to pay attention to Justice Souter's dissent in Helms, and in particular to the following statements:

1.(edited from casebook): "The First Amendment's Establishment Clause prohibits...not only the institution of an official church, but any government act favoring religion, a particular religion, or for that matter irreligion."

Souter believes a neutral program that supplies computers, VCRs, copy machines, maps, lab equipment and library books to all schools based upon a per capita formula favors religion. Does it? Do religious schools get something all other schools do not get? Does this program favor religion or favor a quality education for all schoolchildren?

2. p. 1839: "The plurality's new criterion [of evenhanded neutrality]...would replace the principle of no aid with a formula for generous religious support."

Does the formula provide for "religious support?" Or for educational support for all schools whether public, private secular, or private religious?

You need to be aware of the way language is used in these opinions--neutral aid for some Justices means evenhanded aid that favors no one because it includes all; but for other Justices neutrality somehow means favoring religion because to treat religious schools equally is somehow to favor them.

No comments: