OPINION:
“The fate of the nation’s first religious charter school is before the Supreme Court” (Web, March 14) notes that the Supreme Court will soon consider whether a state may establish and fund a religious charter school.
Those seeking to ban the school point to the Establishment Clause in the First Amendment to the Constitution, which states that “Congress shall make no law respecting an establishment of religion.” The First Amendment applies only to Congress, and the Supreme Court held early on that none of the first 10 constitutional amendments, called the Bill of Rights, applies to the states.
But the Supreme Court has held that the Due Process Clause of the 14th Amendment — which says no state shall “deprive any person of life, liberty or property without due process of law” — incorporates most of the Bill of Rights, including the Establishment Clause, and applies the first 10 amendments to the states.
The incorporation doctrine is controversial, but even if it applies most of the Bill of Rights provisions to the states, it cannot use the Establishment Clause to ban state support of charter schools. The Due Process Clause does not apply unless an identifiable “person” has been deprived of life, liberty or property. Funding of religious charter schools and other monetary assistance to religion does not deprive any identifiable person of life, liberty or property. It’s just an expenditure of public funds.
I once discussed this with Harvard Law Professor Laurence Tribe when I audited his constitutional law class, and he conceded that the Due Process Clause cannot be read to apply the Establishment Clause to the states.
It’s well past time for the Supreme Court to hold that the Establishment Clause does not apply to the states.
JIM DUEHOLM
Washington
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