Free Men in Black by Mark R. Levin Page A

forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws. 40
     
    It is almost impossible to discern a consistent thread of logic in these cases. This is because the Supreme Court has once again intervened in matters not on sound constitutional grounds, but because it wishes to dictate policy. And in this area of law, lacking a consistent rationale for its decisions, the Court is flailing. Having rejected the plain meaning of the religion clauses, it is forced to concoct ever more nuanced arguments to support its rulings. Two recent cases highlight the problem.
    In 2002, in Zelman v. Simmons-Harris , the Supreme Court ruled that the state of Ohio could provide education vouchers to low-income parents so they could send their children to private secular or religious schools. 41
    Writing for a 5–4 majority, Rehnquist noted that the Ohio program did not favor one religion over another: The choice was completely up to the parents. “In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.” 42
    Still, four of the justices would have overturned the program. Predictably, Justice John Paul Stevens, the most senior (and arguably most liberal) member of the Court, argued, “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.” 43
    Only two years later, in the 2004 case Locke v. Davey , the Supreme Court ruled that a Washington State scholarship program could specifically bar state scholarship funds to students pursuing a degree in theology. 44 Joshua Davey—who had won such a scholarship—sued the state and argued that its prohibitions on religious study violated the free exercise, establishment, and free speech clauses of the First Amendment. The Supreme Court’s majority opinion against Davey was written by Rehnquist. On the surface, this seems remarkable, given Rehnquist’s grasp of constitutional history and his past opinions. However, it’s possible that Rehnquist, seeing that a majority of his fellow justices had lined up against Davey, decided that he would write the decision with the intention of limiting its scope and, therefore, its damage to the religion clauses.
    In any event, Rehnquist wrote:
     
    The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses…are frequently in tension. Yet we have long said that “there is room for play in the joints” between them. In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause….
Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology. 45
     
    Rehnquist reasoned that while the state could provide scholarship funds for a student to major in theology, refusing to do so—while funding other majors—is neither discriminatory nor violates the First Amendment.
    The