Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Neutrality and Private Choice

Abstract:     
In a series of majority opinions over the course of his career on the Supreme Court, Chief Justice Rehnquist has successfully championed a relaxed approach to the Establishment Clause in the context of voucher programs and other types of indirect funding. Under this approach, neutral programs of private choice are virtually immune from constitutional challenge. This paper explains how Rehnquist has achieved this result even though a solid majority of the Court rejects his general approach to the Establishment Clause.

Rehnquist's general approach to the Establishment Clause would give the states broad leeway to deal with religion as they see fit. That view has not prevailed. But Rehnquist has secured the support of a narrow majority for a relaxed and deferential approach in the context of indirect funding. He has done so by crafting opinions that bracket his distinctive general approach to the Establishment Clause and that work within the framework of prevailing Establishment Clause tests and values.

Through his success in this context, Rehnquist has partially achieved his broader goal, a limited reading of the Establishment Clause. At the same time, he also has furthered his overarching constitutional vision: reading the Bill of Rights narrowly and thereby enhancing the power and discretion of the states.

This paper will be published as a chapter in The Rehnquist Legacy, a book recounting and analyzing Rehnquist's jurisprudence in a variety of substantive areas.

Keywords: Constitutional Law, Establishment Clause, Funding, Religion, Rehnquist,

JEL Classifications: K00, K10, K19, K30, K39

Accepted Paper Series