In Cleveland . . . taxpayer money is used to fund Catholic masses, Protestant Bible study and instruction in the practice of Islam. —New York Times editorial, February 20, 2002
That tax dollars should not be used to finance the teaching of religion cannot be skirted by passing vouchers through the pockets of parents. —Brent Walker, executive director, Baptist Joint Committee, October 10, 2001
In a crucially important First Amendment case, The Supreme Court will soon decide whether the constitutional separation of church and state will be largely dismantled.
The case, Zelman v. Simmons-Harris, concerns an Ohio program in which $2250 in public tax money is given in the form of vouchers, called “scholarships,” to mainly low-income Cleveland families—many of them black—to remove their children from failing public schools and put them in private schools, including religious schools.
In the case before the Supreme Court, 99.4 percent of the children using these vouchers are going to religious schools. Voucher funds are available to suburban public schools, but those schools have declined them, making this a clear debate on a statement by James Madison, author of the First Amendment:
“Religion flourishes in greater purity, without—than with—the aid of Government. . . . [We must respect] the rightful authority to which governments are limited by the essential distinction between civil and religious functions.”
Or, as Thomas Jefferson called this distinction, “the wall between Church and State.”
At issue is the First Amendment’s command in the Establishment Clause that “there shall be no law respecting an establishment of religion.”
With respect to whether public money to religious schools violates the Establishment Clause, the Supreme Court has previously set up a three-pronged test: Any such law “must have a secular purpose, must neither advance nor inhibit religion, and cannot involve excessive entanglement of government and religion.” (Emphasis added.)
Other arguments that have been made for and against public money for religious schools are not constitutional arguments—for example, the charge that using tax dollars for such schools will take away badly needed funds for public schools. On the other hand, many black parents claim that when the public schools fail their children, vouchers are the only chance for a decent education they have left.
These debates, however, are not at the core of this case. The Supreme Court will decide whether the Cleveland voucher plan—and others in place or planned around the country—advance religion and also entangle government with religion. The Court will also rule on whether there is no violation of the Establishment Clause if the voucher money does not go directly to the religious schools but is paid to the parents, who then make a free and independent choice to use that money for a private religious school.
On February 20, oral arguments were held before the Supreme Court. The Bush-Ashcroft administration, which firmly supports the Cleveland voucher program, sent its top gun, Solicitor General Charles Olson, to defend it. He has often, and effectively, argued before the Court.
Justice Sandra Day O’Connor asked Olson whether the voucher program makes “any effort to make sure that the money that ends up in the parochial schools is not used for religious training.”
“No,” Olson said. But he quickly added that the government is not “putting its thumb on the scales in favor of religion” because the parents make a “genuinely independent private choice.”
Had I been arguing for the other side that day, I would have shown the Court this stern advice to parents who want to use vouchers from a Lutheran school in Cleveland:
“It is highly inconsistent for any parents to send a child to this school if they . . . are not living a Christian life or willing to learn how to lead such a life [and] are not supporting part of a Congregation through worship and sharing of time and talents.”
Jews, Muslims, atheists, and agnostics need not apply to this school, however “genuinely independent” their choice to send their kids, with public money, to a religious school.
I have the mission statements of other schools in the Cleveland program, and you can decide for yourself if public money going to these schools advances religion and entangles the state with religion:
The Saint Rocco School handbook says that education there is designed “to make . . . faith become living, conscious, and active through the light of instruction” and that “religious truths and values permeate the whole atmosphere of the school.”
The Saint John Nottingham Lutheran School handbook states that “the one cardinal objective of education to which all others point is to develop devotion to God about our Creator, Redeemer and Sanctifier.”
The Calvary Center Academy handbook requires students to “pledge allegiance to the Christian flag and to the Savior for whose Kingdom it stands. One Savior crucified, risen and coming again with life and liberty for all who believe.”
Not only are there daily religious classes in those schools but, as the Sixth Circuit Court of Appeals said, in declaring this Cleveland voucher program unconstitutional, the religious schools interweave “Christian doctrines with science and language arts classes [requiring that] all learning takes place in an atmosphere of religious ideals.”
Sir Rudy Giuliani tried mightily to force a voucher program in this city, but he came up against a New York case—Committee for Public Education v. Nyquist (1973)—which until now has been, in the United States Supreme Court, the main bulwark against using public money for religious instruction in religious schools no matter whether the funds go directly or indirectly to those schools.
The vote in Zelman v. Simmons-Harris will, in all likelihood, be 5-4, with Sandra Day O’Connor deciding whether to tear down much of what remains of that wall separating church and state. To be continued.