When Public Schools Get Religion.
Today, as you sit reading this magazine, the U.S. Supreme Court is one vote away from approving a scheme that would require all Americans to pay for the religious education of a few.
On June 28 the high court handed down a ruling in the case Mitchell v. Helms, which concerned the constitutionality of a federal program that gives computers, audio-visual equipment, and other types of aid to private sectarian schools at taxpayer expense. The Court upheld the program by a 6-3 vote. That was bad enough. What's worse is that four justices indicated that they would have gone much further. Under their legal theory, just about any government aid to religious schools or other religious projects would be deemed constitutional. Furthermore, failure of the government to provide that aid is bigotry and discrimination against religion, they declared.
If you want to know what life in the United States would be like without the wall of separation between church and state, read the majority opinion in Helms, penned by Justice Clarence Thomas. If portions of that wall collapse--and they just might within the next few years--public education will be the first institution to take the hit. Thomas's opinion in Helms provide a peek at what we're in for if that happens. It's not a pretty sight.
How bad will it be? It could be quite bad. For starters, every taxpaying American will find himself or herself supporting a variety of sectarian enterprises. Not only will Americans be handed the bill for parochial school aid programs, vouchers and other types of tax funding of religious schools, they will also be forced to prop up religious-based schemes under the rubric of "charitable choice."
Of course, taxpayers already support religious enterprises, especially things like soup kitchens and homeless shelters run by religious groups. These projects get millions annually in federal and state funds.
But in the past, these institutions, though run by religious groups, could not be "pervasively sectarian." In other words, they could not be too religious. If they were, the funding could be cut off. This standard has been the death blow to many efforts to aid religious schools. Since the schools exist to impart religious instruction, they were obviously "pervasively sectarian" and thus ineligible for taxpayer support.
Thomas and his three compatriots (Justices Antonin Scalia and Anthony Kennedy along with Chief Justice William H. Rehnquist) would toss the "pervasively sectarian"' standard right out the window In his plurality opinion, Thomas ridiculed the idea of barring tax aid to "pervasively sectarian" institutions, saying the court should "regret" ever having devised that rule. In its place, Thomas would substitute a legal theory holding that, as long as the government funds a variety of programs, some religious and some not, the First Amendment is not violated.
In terms of the separation of church and state, this is a giant step backwards. More than 200 years ago, Founding Fathers like Thomas Jefferson and James Madison fought to end all religious establishments and taxpayer support of religion. Other framers, like Patrick Henry, believed that, while there should be no state established church, the government should be permitted to favor Christianity in a general sense, giving money and aid to a variety of Christian denominations. This policy common in some colonies, is called "non-preferentialism" or "multiple establishment."
Jefferson and Madison explicitly rejected this concept. They believed that no one should be required to support religion against his or her will-be it one church or 20 churches.
For many years, the Jeffersonian-Madisonian view held sway at the high court, and a number of programs that awarded tax aid to religious education were struck down. Now those precedents are being eroded or, in some cases, overturned outright. Thanks to ultra-conservative, anti-separation of church and state appointments to the high court throughout the 1980s and '90s, we may now be on the verge of losing the crucial principle that people cannot be taxed to support overtly religious undertakings. Forty years worth of cases upholding the separation of church and state could be wiped off the books at the stroke of a pen by an activist high court determined to knock gaping holes in the wall of separation.
Once the door is open to this type of aid, there is no telling where it could lead. At a minimum, vouchers would suddenly become constitutional. But the final result could be much worse: the ultimate goal of many in the voucher movement--although they are loath to admit it publicly--is the privatization of education. Obviously this will not happen overnight, but, once the constitutional barrier to giving tax aid to religious schools is removed, expect the floodgates to open wide as a torrent of voucher bills appear in the states. Religious school lobbyists are already quite savvy in raiding the public coffers. With much of the wall of separation in rubble, there will be nothing will stop them from making full-fledged raids and carrying off just about everything that is not nailed down. Where will the money come from? The same place it comes from now: the existing public school budget.
Humanists reeling from the effects of latter-day church taxes could get another sucker punch in the area of religion in public schools. An aggressively anti-separationist Supreme Court will not only give its blessing to parochial school aid, but will sooner or later turn the full force of its judicial assault on other types of church-state issues relating to education.
The obvious target would be the line of decisions barring state sponsorship of religion in public schools. It's true that just a few weeks before the Helms ruling, the high court ruled 6-3 to strike down a Texas school policy that encouraged prayers before football games. For the time being, at least, the school prayer decisions stand.
However, it's important to remember that the high court's ruling in that case, Santa Fe Independent School District v. Doe, was 6-3. In the original school prayer rulings from the 1962 and '63 only one justice dissented. If an anti-separationist president seeking to placate the Religious Right has the opportunity to replace just two separationist justices in the next four years--which is a good possibility given the ages and past health problems of the some of the pro-separation justices, those rulings will start going the other way too. (The three justices eager to knock down the school prayer rulings are Rehnquist, Scalia, and Thomas. The latter two are relatively young and could easily remain on the Court for 20 years or more.)
If the school prayer decisions are reversed, an entire line of rulings requiring that public education remain neutral on religious matters could quickly follow. Not only will we have formal prayer and Bible reading in many schools, but creationism could find a home in the science curriculum, and public schools could allow outside groups to offer what are essentially Sunday school lessons during the day. In short, public schools would shed the religious neutrality that now is their hallmark and adopt whatever sectarian view holds sway in a given community
Humanists--especially humanist parents--could end up facing a dark future. Not only will they be forced to pay taxes to support private religious schools, but many local public schools will be saturated with religion as well, making them unacceptable alternatives. Where will humanist parents educate their children? Voucher advocates naively insist that under privatized education, schools will spring up to serve all constituents' needs. It's possible that humanist schools might open in a few large urban areas, but the hard reality is that running a quality school costs a lot of money, and in most parts of the country, especially in small towns and rural areas, there will not be enough humanist children to form a critical mass to make a truly secular school viable.
For decades Religious Right activists have had their sights set on public education. They have alternatively sought to "Christianize" the schools (in fundamentalist versions of Christianity, of course) or defund them by promoting voucher schemes. They may be closer to meeting that goal than most people realize because they have succeeded in convincing the Supreme Court to erode the wall of separation between church and state. In a very real sense, the fate of public education hinges on the fate of the wall of separation. Imagine a public school sitting on top of a wall. If you knock down the wall, the school falls with it. Thanks to the machinations of the Supreme Court, we may be on the verge of losing two of America's most important institutions. Sixteen years ago, Rehnquist, then an associate justice on the Supreme Court, wrote that the wall of separation between church and state is "a metaphor based on bad history a metaphor that has proved useless as a guide to judging." He called for it to be "frankly and explicitly abandoned."
At that time, Rehnquist was viewed as a lone voice, crying out in the judicial wilderness. The Religious Right heard him and applauded, but groups like Americans United were appalled and tried to sound the alarm. Alas, few seemed to care. Today Rehnquist is the country's chief justice and appears to have support for his views from three other justices (at least with regard to parochial school aid). With one more vote, Rehnquist can begin implementing his plan to dismantle the wall of separation, either brick by brick or in one fell swoop. (Don't think one fell swoop isn't possible. In the Helms case, the majority blithely overturned two cases from the 1970s barring parochial school aid. So much for respecting precedent!)
This is not an exaggeration. This is not hysteria. This is not fear-mongering. This is reality: the United States Supreme Court is one vote away from approving direct taxation of people for religious purposes, and may soon attack other church-state protections as well. The wall stands in serious jeopardy.
In short, we may not have to speculate about what life would be like without a wall of separation between church and state much longer. If current trends continue, we may all be living there very soon.
Rob Boston is assistant director of communications of Americans United for Separation of Church and State. His most recent book is Close Encounters with the Religious Right: Journeys into the Twilight Zone of Religion and Politics (Prometheus Books, 2000).
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|Date:||Sep 22, 2000|
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