Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, March 28, 2013

More on the Indiana voucher decision

As the other Richard already noted, Indiana's Supreme Court (unanimously) rejected the attempt by school-choice opponents to overturn the Hoosier State's exciting new program.  We should hope that the Indiana Court's analysis serves as a model, in the future, for other state courts dealing with state-constitutional-law challenges to school-funding reforms.  This paragraph, for example, nicely responds to the objection that school-choice programs unconstitutionally direct public funds for the "benefit of [a] religious or theological institution": 

We first find it inconceivable that the framers and
ratifiers intended to expansively prohibit any and all government expenditures from which a religious or theological institution derives a benefit -- for example, fire and police protection,municipal water and sewage service, sidewalks and streets, and the like. Certainly religious or theological institutions may derive relatively substantial benefits from such municipal services. But the primary beneficiary is the public, both the public affiliated with the religious or theological institution, and the general public.  Any benefit to religious or
theological institutions in the above examples, though potentially substantial,
is ancillary and indirect. We hold today that the proper test for examining
whether a government expenditure violates Article 1, Section 6, is not whether
a religious or theological institution substantially benefits from the
expenditure, but whether the expenditure directly benefits such an institution.
To hold otherwise would put at constitutional risk every government expenditure
incidentally, albeit substantially, benefiting any religious or theological
institution. Such interpretation would be inconsistent with our obligation to
presume that legislative enactments are constitutional and, if possible, to
construe statutes in a manner that renders them constitutional.  Section 6 prohibits government expenditures
that directly benefit any religious or theological institution. Ancillary
indirect benefits to such institutions do not render improper those government
expenditures that are otherwise permissible.


Garnett, Rick | Permalink


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