Simmons-Harris v. Goff

711 N.E.2d 203, 86 Ohio St. 3d 1
Ohio Supreme Court·Decided May 27, 1999·No. No. 97-1117·Published·Cited by 73 cases

Opinions

Pfeifer, J.

The court of appeals ruled on six substantive constitutional issues. We will address each of them in turn. We conclude that the current School Voucher Program generally does not violate the Establishment Clause of the First Amendment to the United States Constitution or the Establishment Clause of Section 7, Article I of the Ohio Constitution, and does not violate the School Funds Clause of Section 2, Article VI of the Ohio Constitution, the Thorough and Efficient Clause of Section 2, Article VI of the Ohio Constitution, or the Uniformity Clause of Section 26, Article II of the Ohio Constitution. We also conclude that the current School Voucher Program does violate the one-subject rule, Section 15(D), Article II of the Ohio Constitution. Further, we conclude that former R.C. 3313.975(A) does violate the Uniformity Clause of Section 26, Article II of the Ohio Constitution. Accordingly, we affirm in part and reverse in part.

I

The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * In Cantwell v. Connecticut (1940), 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218, the Supreme Court stated that “[t]he Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” Thus, Ohio’s General Assembly is proscribed from enacting laws respecting an establishment of religion.

In Lemon v. Kurtzman (1971), 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, the Supreme Court set forth a three-prong test to determine whether the Establishment Clause has been violated. Various Supreme Court Justices have challenged the continuing validity of the Lemon test. See Lamb’s Chapel v. Ctr. Moriches Union Free School Dist. (1993), 508 U.S. 384, 398-399, 113 S.Ct. 2141, 2149-2150, 124 L.Ed.2d 352, 364 (Scalia, J., concurring); Allegheny Cty. v. Am. Civ. Liberties Union, Greater Pittsburgh Chapter (1989), 492 U.S. 573, 655-657, 109 S.Ct. 3086, 3134-3135, 106 L.Ed.2d 472, 535 (Kennedy, J., joined by Rehnquist, C.J., White and Scalia, JJ., concurring in the judgment in part and dissenting in part); Westside Community Schools Bd. of Edn. v. Mergens (1990), 496 U.S. 226, 258, 110 S.Ct. 2356, 2376, 110 L.Ed.2d 191, 221 (Kennedy, J., joined by Scalia, J., concurring in part and concurring in the judgment). See, also, Nowak & Rotunda, Constitutional Law (5 Ed.1995) 1223, Section 17.3, fn. 1. Nevertheless, Lemon remains the law of the land, and we are constrained to apply it. In its most recent Establishment Clause case, the Supreme Court used the principles [5]*5set forth in the Lemon test, even as it modified the analytical framework of the three prongs. Agostini v. Felton (1997), 521 U.S. 203, 223, 230-233, 117 S.Ct. 1997, 2010, 2014-2015, 138 L.Ed.2d 391, 414, 419-421.

According to Lemon, a statute does not violate the Establishment Clause when (1) it has a secular legislative purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not excessively entangle government with religion. Lemon, 403 U.S. at 612-613, 91 S.Ct. at 2111, 29 L.Ed.2d at 755.

The first prong of the Lemon test is satisfied when the challenged statutory scheme was enacted for a secular legislative purpose. On its face, the School Voucher Program does nothing more or less than provide scholarships to certain children residing within the Cleveland City School District to enable them to attend an alternative school. Nothing in the statutory scheme, the record, or the briefs of the parties suggests that the General Assembly intended any other result. We conclude that the School Voucher Program has a secular legislative purpose and that the challenged statutory scheme complies with the first prong of the Lemon test.

The second prong of the Lemon test is satisfied when the primary effect of a challenged statutory scheme is neither to advance nor to inhibit religion. Appellees argue that Commt. for Pub. Edn. & Religious Liberty v. Nyquist (1973), 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, compels a holding that the School Voucher Program unconstitutionally advances religion. In Nyquist, a program that provided direct money grants to certain nonpublic schools for repair and maintenance, reimbursed low-income parents for a portion of the cost of private school tuition, including sectarian school tuition, and granted other parents certain tax benefits was ruled unconstitutional. The court held that there was no way to ensure that the monies received pursuant to the tuition-reimbursement portion of the program, even though received directly by the parents and only indirectly by the schools, would be restricted to secular purposes. Id. at 794, 93 S.Ct. at 2976, 37 L.Ed.2d at 975. Therefore, according to the court, the program had “the impermissible effect of advancing the sectarian activities of religious schools.” Id. at 794, 93 S.Ct. at 2976, 37 L.Ed.2d at 975.

The Nyquist holding has been undermined by subsequent case law that culminated in the court stating, “[W]e have departed from the rule * * * that all government aid that directly aids the educational function of religious schools is invalid.” Agostini, 521 U.S. at 225, 117 S.Ct. at 2011, 138 L.Ed.2d at 415. See Witters v. Washington Dept. of Serv. for the Blind (1986), 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (state provision of vocational aid to a blind person, who used it to attend a Christian college, held constitutional). Thus, we continue our analysis of the impermissible-effect prong of the Lemon test unburdened by the bright-line Nyquist test advocated by appellees.

[6]*6In Agostini, the court stated that its understanding of the criteria used to assess whether aid to religion has an impermissible effect had changed. Id., 521 U.S. at 223, 117 S.Ct. at 2010, 138 L.Ed.2d at 414. According to the Agostini court, the three primary criteria to use to evaluate whether government aid has the effect of advancing religion are (1) whether the program results in governmental indoctrination, (2) whether the program’s recipients are defined by reference to religion, and (3) whether the program creates an excessive entanglement between government and religion. Id. at 230-233, 117 S.Ct. at 2014-2015, 138 L.Ed.2d at 419-121. In applying this test, we bear in mind that analysis of Establishment Clause jurisprudence is not a “legalistic minuet in which precise rules and forms must govern.” Lemon, 403 U.S. at 614, 91 S.Ct. at 2112, 29 L.Ed.2d at 757.

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Simmons-Harris v. Goff, 711 N.E.2d 203, 86 Ohio St. 3d 1 (Ohio 1999).

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