In June's final days, the 9th U.S. Circuit Court of Appeals' ruling on the Pledge of Allegiance and the U.S. Supreme Court's ruling on school vouchers, in Zelman v. Simmons-Harris, focused Americans on religion and education. While the Pledge ruling is likely to be ephemeral, Zelman will have enduring importance; the Court left virtually no doubt that school vouchers are constitutionally valid. The furor over the Pledge decision, however, obscured the powerful consequences that Zelman is likely to have outside the education context. The president's faith-based initiative needed a boost, and Zelman may have provided it.

Like several other cases decided on the term's final day, Zelman produced a 5-4 split along now-predictable lines. Chief Justice William Rehnquist, together with Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Sandra Day O'Connor, made up the majority to uphold the Ohio program, while Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens dissented. The chief justice assigned the Court opinion to himself, perhaps to maximize the likelihood of keeping O'Connor in the fold. And O'Connor, who most Court-watchers expected would have the deciding vote and word, wrote a concurring opinion, but it added little to the emphasis in the Court opinion. Thomas also wrote a separate concurrence, and Souter, Breyer and Stevens each authored a dissent.

NEW CERTAINTY

From a practical perspective, Zelman's chief virtue resides in the chief justice's success in maintaining an intact majority opinion. One of the impediments to approval of school voucher plans has been legal uncertainty, and much of that, at least at the federal level, has now been removed. Accordingly, there is now a stark constitutional disjunction between voucher financing of programs operated by faith-based organizations, schools and otherwise, and direct financing, by grants or contract, of the same kinds of programs.

Just two terms ago, in Mitchell v. Helms (2000), the Court divided 4-2-3 on the approach required by the establishment clause in direct-financing cases. The plurality of four concluded that direct financing of religious organizations was permissible so long as the program had a secular purpose and included secular organizations. The three dissenters argued that such financing was unconstitutional because of the risk that the aid would be diverted to religious purposes. O'Connor and Breyer resolved the case by ruling that the government could provide in-kind assistance to faith institutions so long as the aid was not in fact diverted to religious purposes. The split among the justices in Mitchell has created uncertainty at best, and significant constitutional impediments at worst, for state programs that fit within the president's faith-based initiative.

Zelman provides an unmistakable sign that voucher financing of faith-based services is the administration's most promising route to constitutional success. To follow this path, according to Zelman, the government has to meet two conditions. First, the classes of both service providers and voucher recipients must be defined in terms that are neutral with respect to religion; the state should have little problem with this formal requirement.

The second, and potentially more complicated requirement, stands as the conceptual heart of the Court's opinion and O'Connor's concurrence in Zelman -- when voucher recipients receive government-financed services from faith-based providers, their selection of that provider must be a "true," "genuine," "independent" private choice. While the majority opinion and O'Connor's concurrence offer only the most cursory analysis of the conditions that would constitute "true private choice," it is possible to discern from these opinions answers to three questions often raised about vouchers for faith-based education and other social services.

THREE QUESTIONS

Question 1: How should the relevant universe of available choices be defined? In dissent, Souter claims that the only relevant choices are those created by the voucher program at issue and that, because religious schools represent 96 percent of the available seats in this category, parents have no meaningful choice concerning where to spend the voucher. The majority, however, concludes that the relevant universe encompasses all the educational choices available to parents of children in Cleveland, including charter, magnet and neighborhood public schools, as well as private schools accepting vouchers. Thus, in the Court's view, only a tiny fraction of Cleveland's schoolchildren had chosen state-subsidized religious schools. Any parents who desire nonreligious schools for their children can find a wide array of options in Cleveland.

Question 2: How should courts evaluate the relative quality of the choices available in a voucher program to determine if "reasonable secular alternatives" exist? The majority disavows any searching inquiry into the quality of available alternatives in a voucher program. In her concurrence, O'Connor writes that the adequacy of available options should be gauged not by objective standards of student achievement, but rather by a subjective, market measure -- are the various options "adequate substitutes in the eyes of parents"? So long as parents actually choose to send their children to nonreligious schools, the parents are deemed to regard the alternatives as "reasonable."

Question 3: Who holds the burden of persuasion as to the "genuine and independent" nature of the voucher recipient's choice? In many ways, this subtle concern turns out to be dispositive in Zelman. The Court holds that the burden rests on those who challenge a voucher program to show that "genuine, independent" choices are not available to voucher recipients. Because of the majority's expansive definition of the universe of educational options, and its lack of interest in measuring the relative quality of those options, those who challenged the Cleveland voucher program had virtually no chance of success.

Having answered these three questions, Zelman guarantees the constitutionality of most school voucher programs, but promises somewhat less security for voucher financing of other faith-based services. To be sure, the requirement of religion-neutral classes of voucher recipients and service providers should prove no more an obstacle outside the education context than it did in Zelman. Moreover, the placement of the burden of persuasion on those who challenge the voucher program certainly should bolster the case for other programs that include faith-based providers.

But with respect to the relevant universe of choices, voucher programs for services other than education stand on less certain ground. Because the Court's expansive definition of the range of choices includes seats in public -- and thus secular -- schools, which invariably outnumber seats in religious and secular private schools, vouchers for education turn out to be an easy case. But in most areas of social service, such as child care or substance abuse treatment, government tends to finance privately provided services rather than to operate such programs directly.

In some contexts, such as child care, there tends to be a healthy mix of religious and nonreligious providers; but in others, such as substance abuse treatment programs, the pool of providers tends to be dominated by faith-based providers -- especially if one considers, as most courts do, that 12-step programs count as being "religious." The proportion of nonreligious alternatives available in Zelman will be difficult to replicate in other contexts; in some areas of social service, the requisite "genuine private choice" will simply be lacking.

CONTINUING CONTROVERSY

Even if voucher programs survive in the courts, they will nevertheless face significant political controversy. Service providers in voucher programs have tended to get less governmental scrutiny and control than those working under direct government grants, but more widespread use of vouchers will likely mean an increase in such scrutiny. Civil rights advocates will press for restrictions on the employment practices of service providers, targeting those providers who discriminate in favor of co-religionists and against gays and lesbians. In addition, voucher programs are less likely than direct grants and contracts to induce faith-based organizations into the service arena. Unlike fixed-price contracts, vouchers cannot provide seed money to start new programs or provide a stable financial base on which to build a service program.

Whatever the political dynamics, Zelman guarantees that vouchers will play a central role in the Bush administration's strategy for its faith-based initiative. If the administration wants a "level playing field" for religious and nonreligious social service providers outside of education, vouchers are the only viable game in town.

Ira C. Lupu and Robert W. Tuttle are professors at the George Washington University Law School and co-directors of legal research for the Roundtable on Religion and Social Welfare Policy (www.religionandsocialpolicy.org),which is supported by a grant from the Pew Charitable Trusts. The opinions expressed here are solely those of the authors.