Financing Religious Educational Institutions with Tax-Exempt Public Bond Proceeds: Implications of Zelman v. Simmons-Harris

When a government issues bonds, with the proceeds to benefit non-governmental schools, does the program run afoul of the Establishment Clause if some bond proceeds benefit pervasively religious schools? This article begins by tracing the historical development of Establishment Clause jurisprudence, then turns to the 2003 Supreme Court decision in the “school voucher case,” Zelman v. Simmons-Harris, for insight as to the current state of Establishment Clause law. In light of the Zelman decision, and its emphasis on the importance of “private choice” in saving government programs from violating the Establishment Clause, the article reevaluates a pre-Zelman lower court case that sought to address the issue of providing tax-exempt public bond proceeds to a religious school. I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other.