Significance of Agostini

[Michael McConnell]

I think Dan Conkle is too pessimistic (or is it
optimistic?) about the change wrought in Lemon. The three
"primary" criteria are not the same as the three prongs of
Lemon. The first, "government indoctrination," appears to
refer to indoctrination by agents of the government -- not
by anyone who happens to have received neutral "aid." This
I infer from the discussion of Witters, and the
preoccupation with Zobrest. The second (whether the aid
creates incentives for modification of religious practice
by favoring or disfavoring religion) adopts a neutral
treatment baseline for "aid" to religion. This is the best
part of the opinion. (By contrast, under Nyquist and other
Lemon cases, any significant subsidy of a religious
activity, whether on neutral terms or not, was considered
an "advancement.") The third, "excessive entanglement,"
obviously sounds the same as it did in Lemon -- but the
interpretation is different.

The opinion also blesses Witters, Zobrest, and Rosenberger
as embodying the Court's current doctrine.

There is still some silly language, in response to some of
Souter's dissent, about no money going into the coffers of
the religious school and about the aid not going to the
core of the educational program. But on the whole it
looks like a big step forward.

After this, is there any serious argument that Supreme
Court precedent bars a neutral voucher program?
-- Michael McConnell (U of Utah)