Notice in Zelman how Chief Justice Rehnquist's majority opinion emphasizes that the voucher plan was one of "true private choice." (P. 1841 & 1842; see also O'Connor at p. 1845)
The idea here is that generality (i.e.,a plan that provides benefits to a broad class of citizens chosen not because of their religious beliefs but because they satisfy some neutral, secular requirement such as disability or low income) plus indirection (i.e., the state aid "reaches religious schools solely as a result of the genuine and independent choices of private individuals." (p. 1841).
The idea is that the state is not endorsing or advancing religion or even religious education, but rather is supporting a quality education for all beneficiaries who satisfy the neutral, secular criteria.
It is like tax deductions for charitable donations under tax law--the tax code advances charitable giving and the individual decides whether to direct his or her donation to a secular charity (such as Planned Parenthood or the United Way) or to a religious charity (such as a church or religious ministry like the City Mission). The state endorses charitable giving and the individual endorses the particular charity.
Although strict separationists continue to view these programs as providing state aid for religion, the Court seems to have decided that neutral programs of private choice do not violate the EC.
Justice Souter says the voucher plan is not neutral because the voucher laws "were written in a way that skewed the scheme toward benefitting religious schools." p. 1847
What does he mean by that? What options do parents seeking a secular K-12 education have under Ohio law? Which families receive more state educational funding--families attending secular schools or those attending religious schools?
As we leave the Establishment Clause behind, you should keep in mind Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:
"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation. The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ." Casebook p. 1808
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