Church and State Separation in Crisis


To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical. —Thomas Jefferson

In 1775-76, there was a fierce debate in Virginia as to whether a tax should be enacted to support that state’s established church. Fighting unsuccessfully against that proposal were Thomas Jefferson and James Madison.

In his “Memorial and Remonstrance Against Religious Assessments”—which I hope members of the Supreme Court will have read before deciding this term’s case on using public money for religious schools—Madison, as summarized by Kermit Hall in The Oxford Guide to United States Supreme Court Decisions, argued that:

“A true religion did not need the support of the law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind.”

This led to the passage in Virginia of Jefferson’s Bill for Religious Liberty, which formed the basis for the establishment clause in the First Amendment, written by James Madison. That clause, as Jefferson put it, erected a wall between church and state.

In recent years, the Rehnquist Court has somewhat breached that wall, but no damage it has done so far will come anywhere near the magnitude of commingling government and religion if the Court decides that the Ohio voucher program—providing $2250 in public tax money to parents who want to send their children to Cleveland private schools, including religious ones—is constitutional.

The case before the Court is Zelman v. Simmons-Harris, and no one involved contests the fact that 99.4 percent of the Cleveland children using vouchers are in religious schools.

This is how it works: The state sends the voucher check directly to the chosen school, made payable to the parents, and the parents then come in and endorse the check to the school. Proponents of vouchers say that, this arrangement notwithstanding, the government is really just giving parents public money to use for education, and the parents make an independent school choice, so there is no violation of the establishment clause, which forbids our taxes to be used to advance religion or entangle it with the state.

Justice Sandra Day O’Connor will be the swing vote in this decision, and I hope—though I am far from certain—that she will stay with her concurring opinion in Capitol Square Review & Advisory Board v. Pinette (1995): “The establishment clause forbids a State to hide behind the application of a formally neutral criteria and remain studiously oblivious to the effects of its actions.”

And that’s the determining question in this case: Whether the public money goes directly or indirectly to the religious schools, what are the effects of these contributions to church coffers on the separation of church and state?

Last week, in quoting from the mission statement of some of the schools in the Cleveland program, I showed how these religious schools, in conscience, cannot help but advance religion—wherever their money comes from.

Here is another example, from the handbook of the Saint Mary Byzantine School: “In keeping with our intention of developing religious and moral values in accordance with Christian Catholic teachings, every student participates . . . in daily prayer within the classroom community. . . . All students enrolled in our school must participate in our religious instruction program.” (Emphasis added.)

If the Supreme Court now rules that it is constitutional for public tax money to go to this and other such religious schools, the Court will have eviscerated—if not actually reversed—its longstanding prohibition of excessive entanglement of the state with religion. Of special relevance on this point is Chief Justice Warren Burger’s ruling on entanglement in Earley v. DiCenso (1971).

The state of Rhode Island had provided supplements from public funds for the salaries of teachers of secular subjects in nonpublic schools, including religious schools. Said the chief justice: “A comprehensive, discriminating, and continuing state surveillance will inevitably be required to insure that . . . the First Amendment [establishment clause] is respected.”

The chief justice explained: “Unlike a book, a teacher cannot be inspected [only] once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations [on church-state entanglement] imposed by the First Amendment.”

In the voucher program that the Supreme Court has before it, there is no such continuing surveillance of any kind, and there are no restrictions on how the public money can be used. Therefore, with the uninspected, persistent blurring of church and state, all the limitations on church-state entanglement have been simply and sweepingly done away with.

The late Marvin Frankel, who had a long and exceptionally distinguished career as a defender of the Bill of Rights, submitted to the Supreme Court the most cogent brief in Zelman v. Simmons-Harris. It ends:

“This is indeed a case where the result of the government program in issue is to ‘convey a message of [government] endorsement of Christianity’ and other established religious messages. . . .

“To allow such massive direct funding of such a program,” Frankel continued, “violates establishment clause principles that remain as vital today as they were in Madison’s classic formulations over two centuries ago.”

But do they remain vital to this Supreme Court? The Court appears to be split down the middle. Rehnquist, Scalia, Thomas, and Kennedy are odds-on favorites to approve the Cleveland voucher program—with Souter, Stevens, Ginsburg, and, I hope, Breyer against. Right smack in the middle is likely to be Sandra Day O’Connor, who wrote, in a concurring opinion in Rosenberg v. Rector (1995): “Public funds may not be used to endorse the religious message.”

However, Justice O’Connor has more than once expressed views that seem contradictory, and she prides herself on judging one case at a time—keeping precedents in mind, but focusing on the specific facts in each case.

If the Supreme Court approves public money for pervasively religious schools, the decision may be challenged in those states—like New York—whose own constitutions provide greater separation of church and state. But the outcome is not certain.

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