Volokh Responds to Vermont Supreme Court Voucher Decision

“The only positive aspect of the Vermont decision is that it will have no impact on other states,” said Eugene Volokh, a professor at the University of California at Los Angeles Law School and one of the nation’s leading legal scholars on the intersection between government and religion—the central conflict on school choice issues.  “The majority of courts have upheld school choice under the First Amendment, and this decision based solely on state constitutional grounds does nothing to reverse that trend.”

“In fact, only five years ago the Vermont Supreme Court made clear that the United States Constitution does not require such discrimination against religion, and most other recent decisions–such as the ones in Arizona, Ohio, and Wisconsin–have taken the same view:  That equal treatment of religion is not establishment of religion,” Volokh said.  “I hope that the United States Supreme Court will in due course consider this question and adopt a rule of equality, not of discrimination.”

“Today’s decision by the Vermont Supreme Court says the government has a constitutional obligation to discriminate against religion,” Volokh added.  “Vermont may not, the court held, treat all children equally regardless of the school–government-run, private secular, or private religious–to which they go.  Rather, it must exclude those kids who go to religious schools, simply because they’re going to religious schools.  But such a discriminatory interpretation of the state constitution is itself unconstitutional–itself violates the United States Constitution, which guarantees religious equality.”

“Under the court’s reasoning, the GI Bill, which funds all students equally, would be unconstitutional,” Volokh said.  “So would Pell grants.  So would a wide variety of Vermont grants that let students attend religious schools and even pursue religious studies.  In fact, this decision even jeopardizes other evenhanded programs, such as the tax exemption for charitable donations, which courts have acknowledged is a form of government subsidy.”

“Equal treatment is not establishment; it’s not compelled support of religion; it is constitutionally permitted and constitutionally mandated, and the Vermont Supreme Court was wrong to hold otherwise,” Volokh concluded.

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Eugene Volokh teaches First Amendment law at UCLA Law School, and is founder and operator of RELIGIONLAW, the leading online discussion for academics specializing in the law of government and religion.