The Crumbing Wall of Church-State Separation

Human Rights

The constitutional challenge to the phrase "under God" in the Pledge of Allegiance may be the highest-profile church/state case on this term's Supreme Court calendar, but it is not the most important. When the Court hears argument on December 2 in the case of Locke v. Davey, the conflict it confronts will have not just symbolic but tangible real-world effects on the fabric of church/state separation.

The plaintiff in the case, Joshua Davey, is a student majoring in Pastoral Ministries at a religious college in Washington State. Davey qualified for a state-funded scholarship, but lost it when he declared his major. That was because Washington's constitution, like the constitutions of ten other states, explicitly prohibits the expenditure of taxpayer funds for religious instruction.

Once upon a time, it was thought that the U.S. Constitution, by way of the First Amendment’s Establishment Clause, also barred government funding for religion. But a brilliantly successful legal and political strategy over the past two decades has undone that once rarely unquestioned gospel. Today, the question whether government must fund clergy training if it funds other secular education is up for grabs. Indeed, the case before the Supreme Court is Washington State's appeal from a federal appeals court decision that answered the question affirmatively. The appeals court ruled that Washington's ban on funding religious instruction amounts to "viewpoint discrimination" and violates the constitutional right to free exercise of religion.

It is precisely this theory of viewpoint discrimination, combined with a superficially appealing but mistaken argument about equality, that has provided the intellectual ammunition for the Court's reversal of direction on church/state issues. In the 1970s, if one thing seemed clear from the vaguely worded Establishment Clause ("Congress shall make no law respecting an Establishment of religion ..."), it was that tax money cannot be used to support religious practice, proselytizing, or instruction. The reasons were grounded in both the Establishment and Free Exercise Clauses of the First Amendment.

That is, the Framers of the Constitution understood that forcing taxpayers to support religions different from their own violates deeply felt scruples of conscience, is likely to lead to religious warfare, and inevitably entangles the state in the affairs of the dominant churches -- the ones most likely to benefit from government largesse. Public funding thus undermines conscience both for congregations of the dominant churches and for adherents of minority religions and atheists who are forced to pay their bills.

Abiding by these principles, the Supreme Court ruled in the 1970s that government funds cannot be used for religious education; and, following those precedents, it said in 1985 that a school district cannot send public school teachers into parochial schools to provide remedial services. But in 1997, the Court overruled the remedial services decision and cast serious doubt on the earlier precedents. Finally, in 2002, the justices upheld a state voucher program that, among other things, provided funds to help low income and minority children obtain private overwhelmingly parochial education and thereby escape the physical dangers and educational failures of inner city public schools.

It did not hurt that the facts of this voucher case were so sympathetic. Two other recent challenges to state decisions not to fund religion also seemed compelling in their appeal to human sympathy. One involved a deaf student at a Catholic school who was denied a state-funded sign language interpreter; the other, a blind student who sought state-funded vocational rehabilitation services in order to pursue his ministry training. In both cases, the Supreme Court ruled that the Establishment Clause does not require the state to deny funding for the religious activity. The Court’s reasoning relied on a distinction that only a lawyer could love: taxpayer funds would not go directly to the sectarian schools, but to individual students and parents whose private choices, rather than choices by the state, would produce only an "incidental" benefit to religion.

But the Court did not rule that either the free-exercise-of-religion clause or the First Amendment rule against "viewpoint discrimination" requires funding for religious education. Those are the questions in the case now before the Court, and are the inevitable next step in the political and legal campaign to undo church/state separation.

The whole point of the Establishment Clause and, even more forcefully, of state constitutional "anti-aid" provisions, is to make religion an exception to neutral government funding programs. The Constitution treats religious activity differently from secular activity; religious speech differently from speech with secular viewpoints; religious education differently from secular education, because it is best for religious citizens, atheist citizens, and the peace and happiness of our pluralistic society, that government steer clear of financing sectarian enterprises.

The American Center for Law & Justice, representing Davey, argues that the state’s "purposeful discrimination against religious exercise" violates both the free speech and free-exercise-of-religion clauses of the First Amendment. If this is so, then a state's refusal to support the rebuilding of church altars if it funds the rehabilitation of other rundown buildings would also violate the Free Exercise Clause; and its failure to pay the salaries of nuns teaching at parochial schools would constitute unconstitutional discrimination if it has a program to supplement the salaries of teachers at secular private schools. Which may be exactly the direction we are heading if the current juggernaut to undo church/state separation continues.

Marjorie Heins directs the Free Expression Policy Project,

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