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� � ��,�1 � , 3 � � "� EXECUTIVE SUMMARY JULY 2002 UPDATE** re: Zelman v. Simmons-Harris "Tax-Exempt Financing For Faith Based Organizations: The New Constitutional Climate" by Jeffrey 0. Lewis In June 2002, the Supreme Court voted 5-4 in Zelman v Simmons-Harris to uphold Cleveland's school voucher program because it had neither the purpose nor effect of advancing or inhibiting religion. The decision clarifies the Court's Establishment Clause jurisprudence and has important ramifications for taY-exempt financing for faith-based institutions. The Cleveland program was neutral in purpose and in effect with respect to religion. Further, aid flowed to religious institutions only through the genuine, independent, private choices of a multitude of individuals. Therefore, any incidental advancement or perceived endorsement of a religious mission could not be reasonably attributed to the government, whose role ended with the disbursement of benefits. Hence, the Cleveland program does not have the forbidden "effect" of advancing or inhibiting religion. Zelman, therefore, stands for the following propositions: 1) If a governmental program has a valid secular purpose, is neutral with respect to religion, is applied neutrally and, moreover, provides aid directly to a broad array of recipients who may exercise their own genuine private choices to redirect the aid to institutions without regard to whether they are religious or not, then the program is essentially exempt from Establishment Clause challenge. 2) The use to which government money may ultimately be put in such a program cannot be attributed to the government, nor can any usage be properly interpreted as governmental endorsement of religion by a reasonable observer. The independent private choices of individual recipients break the chain of causality. ." The full text of this article antl other relevant articles may be tlownloatletl from the Ice Miller Website (www.icemiller.COm). JULY 2002 3) T{1iS is so, regardless of the character of the downstream recipients and without regard to whether any such entity � secular, religious, religiously a�liated, sectarian or pervasively sectarian. 4) Further, such an aid program is normally exempt from constitutional challenge even if the aid is ultimately used for religious purposes or activities. Prior cases, such as Agostini (1996) and Helms (2000), by way of contrast, set forth criteria for analyzing direct govemmental aid to religious institutions. These direct aid programs are subject to a somewhat higher level of constitutional scrutiny. Constitutionality may depend upon whether governmental aid will actually be used for religious purposes. However, the Court has held on numerous occasions that particular forms of direct aid may be pernussible (e.g., subsidized bus transportation, secular textbooks, diagnostic testing for parochial school students, remedial programs, etc.). For direct aid to pervasively sectarian institutions to be constitutional, programs must have a valid secular purpose, must be neutral with respect to religion, must administer aid in a neutral manner with respect to religion, and must be appropriately safeguarded to assure that funds are not used for religious activities and to do so without resulting in an excessive entanglement between church and state. Zelman represents the culmination of a line of cases dealing with indirect aid in the context of the genuine and independent private choices of individuals who are the primary recipients of aid (e.g., tuition deductions to parents of private school children, vocational scholarships for students, including professional ministry students, and sign language interpreters for hearing- impaired students in parochial schools). Several cases make clear that tax exemptions and deductions are also forms of indirect aid and so not subject to the additional scrutiny of direct aid programs. � �� «�� �'t« a. . � � � �� i� a y?" �..