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I contemplate with solemn reverence that act of the whole American people [the Establishment Clause in the Constitution] which declared that there shall be a wall of separation between church and state.
Thomas Jefferson in a letter to the Danbury, Connecticut, Baptist Association, 1802
While Rudy Giuliani's plan to merge church and state by mandating that public tax money go to religious schools is on hold, it is by no means dead. "It is not off the agenda," he says. "It's very much on the agenda."
Giuliani never gives up. The mayor either will bide his time until Board of Ed chancellor Rudy Crew leaves, or Giuliani will terminally sandbag him. And even now, the widely respected and influential former congressman Floyd Flake and City Councilman Noach Dear, an Orthodox Jew, have declared the formation of a "grassroots" campaign to permit publicly funded vouchers to pay for tuition at religious schools.
Firestorms about vouchers are also raging in other cities and states, and it's time to explain how this plan actually would work in New York. And, more fundamentally, why Giuliani's program would require an amendment to this state's constitution and also require the U.S. Supreme Court to overturn a series of previous decisions that would forbid the Giuliani plan.
Throughout his public career, Giuliani has shown he is in acute need of remedial education on constitutional law. When he was United States Attorney for the Southern District, he scornfully told me that I was wrong in assuring him that the Fourth Amendment requires "probable cause" before a judge can issue a search-and-seizure warrant. Probable cause has been right there in the Constitution for more than 200 years.
As mayor, Giuliani has lost, in court, a series of lawsuits by the press and by citizens' organizations. Most of these legal actions have been intended to protect us against his fierce desire to conceal essential information about his conduct of city affairs very much including the internal workings of the police department.
Giuliani is still intent on providing public tax funds in the form of vouchers for parents to send their children to private schools, including religious schools.
Giuliani has been inspired, he says, by a voucher program under way in the Milwaukee schools. He notes, with characteristic factual ignorance, that the Supreme Court has okayed that program. What the High Court actually did was to decline to review it.
As any first-year law student knows, the Supreme Court's refusal to review does not mean that the Court has decided the case on its constitutional merits. There is as yet no voucher decision applying to the entire country. For that, we will have to wait until the High Court addresses a conflict in the lower appellate federal and state courts.
Giuliani misstates the facts again when he says that under the Milwaukee plan, parents who send their kids to religious schools with state money can "opt out" of religious education at those schools.
Not true. Parents can "opt out" of religious activities at those schools. That means specific classes focused on religious indoctrination and prayers, as well as chapel attendance.
But the rest of the curriculum in religious schools which is taking funds from the pool of tax money, into which everybody in Milwaukee has had to pay is pervasively infused with religion.
I have the mission statements of many of those religious schools benefiting from tax vouchers in Milwaukee. All are similar this one:
"At Holy Redeemer Christian Academy we believe that God has uniquely created each of His children and endowed them with gifts to be used to bring Him honor and glory. We consider it our reponsibility to motivate each child to do his utmost to achieve and exemplify excellence in every aspect of his life. Thus, all learning will be rooted in the understanding of faith in God and the power of His word." (Emphasis added.)
All learning. In biology class, the theory of evolution is discarded in favor of creationism. Jewish, Muslim, atheist, or agnostic parents cannot "opt" to remove their kids from biology or any other classes infusing religion in the curriculum they can only refuse classes in that school's particular religion.
Giuliani's ardent desire to use public tax money to "mirror," as he says, the Milwaukee program will lead to a direct entanglement of church and state.
Supreme Court Justice Hugo Black warned in Engel v. Vitale (1962):
"By the time of the adoption of our Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State.
"These people knew some of them from bitter, personal experience that one of the greatest dangers to the freedom of an individual [and his or her child] to worship in his own way lay in the government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services."
In 1989, the late Justice Harry Blackmun emphasized (in Texas Monthly v. Bullock) that "a [governmental] statutory preference for the dissemination of religious ideas offends our most basic understanding of what the Establishment Clause [separation of church and state] is all about."
And if Giuliani wants to consult one of the Framers, there is James Madison. He largely wrote the First Amendment (and its Establishment Clause), and said clearly:
"The Christian religion [and all religions] ought not, so far as pecuniary means are involved, ever to have funds provided by the government."
What is likely to happen is that Giuliani will bypass the Board of Education and run the vouchers from City Hall. How, then, can lawless Rudy Giuliani be stopped? Stay tuned.