An argument for school vouchers amidst fight over Obamacare

Linda Greenhouse
Linda Greenhouse

Arguments supporting parental school choice can crop up in unexpected places. Even in a left-leaning take on a particularly controversial piece of Obamacare.

In her Nov. 28 column, Linda Greenhouse, the esteemed former New York Times reporter who covered the U.S. Supreme Court for 30 years, discussed two current Supreme Court cases focused on whether corporations can be required to provide health benefits that are inconsistent with their religious beliefs. The cases are part of a flood of litigation challenging whether the government can force employers, including churches, to provide employee benefits such as birth control.

Greenhouse concludes her column by suggesting that forcing employers to provide a prescribed set of health benefits does not violate their religious beliefs since the employees are choosing how to use these benefits, not the employer. She cites parents using publicly funded school vouchers to pay private school tuition to bolster her argument:

“By paying employees as the law requires, neither a corporation nor its owner is endorsing the employees’ choice of what to spend their money on – no more than a local government endorses a parent’s choice to use a taxpayer-funded voucher for religious-school tuition. The Supreme Court for  decades has embraced the notion that an intervening private choice of this sort, even when a government program is clearly designed to channel public money to religious institutions, avoids what would otherwise be a violation of the First Amendment’s Establishment Clause.”

Greenhouse isn’t just any legal observer. She won a Pulitzer Prize covering the Supreme Court. She now teaches at Yale Law School. As a longtime Greenhouse reader, I feel comfortable describing her as a left-of-center progressive Democrat. For someone of her stature and political persuasion to acknowledge the constitutionality of parents using school vouchers to attend faith-based K-12 schools – an argument more often advanced by the political right – is another small but significant milestone in the redefinition of public education.

Greenhouse’s assertion – that “an intervening private choice” allows citizens to use public funds to pay for services from a faith-based provider without violating the Establishment Clause – seems consistent with how most legal scholars understand the interaction between the First Amendment’s Free Exercise and Establishment Clauses. I submit that most of the public intuitively understands this, too. Few people object when college students use Pell Grants to help pay tuition at the University of Notre Dame, or when low-income people use Medicaid funds to pay for treatment at a Baptist Hospital.

In the area of religion, Americans can distinguish between government coercion and individual choice. That’s why, in more and more states, legislation allowing parents to voluntarily use public funds to pay for faith-based schooling is garnering bi-partisan support.