The Article analyzes both the meaning and the constitutionality of Child Care Development Block Grant's church-and-state-related provisions in light of existing Supreme Court Establishment Clause jurisprudence. The CCDBG's church-and-state-related provisions represent a legislative effort to perform the type of Establishment Clause line drawing that the Supreme Court has traditionally undertaken and continues to undertake in cases involving aid to religious institutions. The congressional debate and the public controversy it engendered over line drawing between permissible and impermissible aid to religiously affiliated child care, and the resolution reached in the CCDBG, all achieve an important constitutional aim. They reflect and reinforce a public ideal expressed in the Court's existing jurisprudence, the ideal that religious liberty is safeguarded by the separation of the public sphere of government and the private sphere of religion. However imprecise the exercise, and wherever the line is drawn, the very act of drawing a line, of determining when aid is permissible, upholds the Establishment Clause ideal. The enactment of the CCDBG demonstrates that the line-drawing exercise is a feasible and useful task. With the statute's grant and contract aid provisions, Congress has constructed a scheme that allows substantial aid to religiously affiliated child care while drawing a workable line between prohibited aid that advances religion and permissible aid that does not. The Article argues that under existing Establishment Clause doctrines, the CCDBG measures allowing financial assistance to be paid by states to religiously affiliated nonsectarian child care programs are constitutional, whereas the requirement that the program's vouchers be redeemable for sectarian services is probably not. While the Court may very well modify and develop current Establishment Clause jurisprudence in ways that will allow the use of vouchers for religious programs, the Article maintains that such action by the Court would undermine the traditional Establishment Clause ideal of separation between church and state. The questions addressed in the Article regarding the CCDBG's church-and-state provisions are urgent ones. Federal and state agencies implementing the CCDBG must analyze the statute in light of current Establishment Clause mandates, just as Congress struggled to do in the process of its enactment. State and federal courts will have to do the same in any challenges to the statute. Furthermore, even if federal constitutional doctrines are reworked and relaxed, federal and state policymakers, as well as state courts interpreting state constitutional provisions, will have to decide whether to follow or to depart from federal Establishment Clause doctrine.
The Art of Line Drawing: The Establishment Clause and Public Aid to Religiously Affiliated Child Care, 69 Ind. L.J. 39 (1993) 1993 Winter