This partial transcript of Special Report with Brit Hume, February 20, 2002 was provided by the Federal Document Clearing House. Click here to order the complete transcript.

Other guests and topics for February 20, 2002 included:
• Jim Angle: President Bush urges North Korea to open its border
• Bret Baier: The Pentagon tries to clarify its policy about propaganda
• Greg Burke: Israeli Prime Minister Ariel Sharon says his country's military will take a different course of action to try to prevent terrorist attacks
• Brian Wilson: Protestors gather outside of the Supreme Court as its justices consider the constitutionality of an Ohio school voucher program
• Carl Cameron: Many supporters of campaign finance reform are scrambling to raise as much money as possible before new legislation takes effect
Order the complete transcript

BRIT HUME, HOST: The constitutional issue before the Supreme Court is this fight over whether the government can provide tuition vouchers that parents could then use to send their kids to private, including religious, schools.

It is the first amendment to the constitution, and it says, simply, Congress shall make no law respecting the establishment of religion or, I believe we have a graphic of it, or prohibiting the free exercise thereof.

So what is the court likely to say that means in terms of school vouchers?

For guidance, we turn to our favorite law professor, Jonathan Turley of George Washington University Law School, who joins us from Chicago tonight.

Good evening, Jonathan. Welcome.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Hi, Brit. How you doing?

HUME: Now, the one thing we always hear in these discussions is that there's a wall of separation between church and state in America. And yet the language of the first amendment doesn't say anything about any wall. So how did that come to be and is there a wall?

TURLEY: Actually, that language comes from a letter written by Thomas Jefferson that really seemed to encapsulate this view that we have to have this complete separation and there is…

HUME: The language, wall — the phrase wall of separation?

TURLEY: That's right. And there is a great deal of tension between people who view the constitution as primarily designed originally, if you look at the original intent to, prevent a Church of the United States, like a church of England.

But since then, the court has been very active in trying to keep an absolute separation in a Jeffersonian sense, a wall that's not just high, but so deep that no money can pass over. But that has started to change. Look back as long ago as three decades and see some of the justices laying a new foundation. And really in the last 10 years, you've seen justices, like Justice Thomas, going aggressively to significantly change the constitutional rule governing that contact between the government and religious schools.

HUME: Now, the idea here is, I assume, that the critics here, the critics of the plan believe, that although parents may actually pass the money to the schools, that if you are in a jurisdiction where nearly all the schools are religious schools of one kind or another, and the money comes from the taxpayers and goes to the parents in the form of vouchers, that in effect what you have is simply money being funneled one way or another to support religious schools and thereby supporting, that is to stay establishing, religion. Have I got that argument stated correctly?

TURLEY: You said it quite well.

And, actually, over 90 percent of the students under the voucher plan have ended up going to sectarian or religious schools. But what the argument of Ohio is, is that, look, that's a choice. And Justice Thomas in a case called Mitchell, for plurality, it wasn't a majority opinion, but in year 2000, he made some very strong changes in how the court viewed this matter.

And he said, look, there's a fundamental difference when this money passes through the hands of citizens. It doesn't go directly to the schools. But where the states go to the citizens and say, here's money. You choose.

He said that type of neutrality is key.

Now, that opinion did not have a majority. It had what is called a plurality, because Justice O'Connor, who is going to be key in this case, was the turning vote. And so all eyes are on her.

HUME: So she went the same way on the case, but didn't join in that argument — that view of it, right?

TURLEY: That's right. But you know, this is an incredibly important case.

For three decades, we've been looking at the court tacking and moving around this issue. We may finally see the Supreme Court, either by plurality or a slim majority, say this voucher program passes constitutional muster because the checks go to the parents.

But I got to tell you, the dissent — if that's the case, you're going to have a roaring dissent, because they're going to say that, look, this is just a fig leaf. These checks are sent to the school and are simply endorsed by the parents and that this is a pretty thinly veiled state support for religion.

HUME: Well, let me ask you a factual question here. As you understand it, if there were more nonsectarian, nonreligious private schools in the area around Cleveland, and parents were sending their children there, I assume this issue would not necessarily arise? Am I correct about that?

TURLEY: Well, it wouldn't be, I think, as heightened in terms of all of the opposition to it.

But I think that the issue would still be there in terms of those sectarian schools that are still getting money.

But I think what you are really seeing now is the final culmination on this court, that we may have out of this case emerge for the first time a very clear ruling by the court as to where the new line between the government and religious organizations currently is.

And what's interesting is, in that 2000 opinion, Mitchell...

HUME: What was the issue in that case?

TURLEY: That was actually educational funds and resources. It wasn't a voucher program, but Justice Thomas actually said that the past approach by the court was born in bigotry.

He actually said that those justices that have maintained this high and deep wall have had a bigotry against religious organizations. That's how tense this language is.

Brit, if you take a look at the lower court discussion from the sixth circuit, it looks like a WWF fight. I mean, the only thing that thee lower judges didn't do was beat each other with chairs.

HUME: You're talking about the decision that's being appealed here in this school voucher case?

TURLEY: That's right. I mean, these justices are as divided as society.

I have never seen such angry words coming out of judges and justices. And I promise you, the decision in this case from this court is going to be as angry.

HUME: Now, we heard today — Brian Wilson reported and other accounts said as well, that the harshest questions, and a lot of them, the toughest questions, were asked by Justice O'Connor, were reserved for the anti- voucher forces and that, relatively speaking, the pro-voucher advocate got off easily.

Now, you could probably advise us as to how to read that kind of thing. Does it tell you anything, that that's how that went?

TURLEY: Well, you know, reading comments from justices is like looking at the entrails of a goat. It has a fairly low ratio of success. But, in this case, you can bet that if O'Connor is willing to vote with the conservative majority, she will write this opinion, and she will set the new doctrine of where that line is.

I think that she is gravitating, I would guess, towards Cleveland and towards the vouch are program, because I think that if you look at her concurrence in that 2000 opinion, she was pretty close on material points. What she didn't like is the way that Thomas went about it. She said it was breathtaking in how far it could be read. She wanted something more moderate.

This voucher program may be the ticket for her to finally sign on with the majority. And people like Thomas and Rehnquist may be willing to give a little to get that 5 - 4 vote that will finally say to all 50 states, you can have voucher programs and it can go to religious schools.

HUME: And last question, real quick. You expect it to be 5 - 4?

TURLEY: I would be surprised if it was more than 5 - 4. It could even be a plurality.

HUME: Thanks very much…

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