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The Virtues of Disestablishment

Taking our eye off of healthcare for a moment, Andrew Sullivan calls attention to the analogous case of school curricula, as reported by Rachel Tabachnik:

Some Louisiana students receiving publicly funded vouchers and attending private schools in 2012-2013 will be taught from educational media promoting young earth creationism, global warming denial, history that is not factual, and bigotry toward Catholicism, Mormonism, other Protestants, and non-Christian religions. This is predictable because some of the schools that are on the approved list to receive voucher students use curriculum from A Beka Books, Bob Jones University Press, and Accelerated Christian Education (ACE). Public funding of the teaching of creationism is already happening in Pennsylvania, Florida, and other states with "private school choice" programs.

She does the digging here, here, and here.As more private institutions take on the burden of providing services that the State deems necessary for the flourishing of its citizenry, I predict that we will have more clashes between institutional autonomy and government mandates. The fact of the matter is that you cannot take government money and use it for evangelical purposes. That's establishment.So, as public schools are abandoned and public money is funneled into "private" institutions, they lose their right to teach whatever they want. Similarly, in the absence of a single-payer system a deprivatized healthcare system, if medicare and medicaid funding, not to mention federal student aid, is used to support the heath provisions offered by "private" hospitals and universities, these institutions can no longer claim exemption from government oversight.If you want to be exempt from the mandates of the government, do not take government money. Just ask the Church of England, who fears that, because of their established status, they will be legally bound to bless same-sex marriages. Interestingly, then, in England peoplemight be coming around to the virtues of disestablishment, just as the country that invented it seems to be having doubts.

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Wow! What a hop, skip, and jump you've done here, Eric Bugyis!Here's the basic question: Are there ways in which, say, Catholic universities can legally accept federal funds, say, without a violation of the establishment clause being involved?

Thomas, it depends what you mean by "Catholic." Do you mean the "political" or the "theological" definition? If they are recognized by the government as "religious" institutions, then they should not receive government money. Ironically, the current "narrow" HHS exemption, actually makes it possible for self-identified "religious" institutions to continue receiving federal funds, but that also means that they have to follow government regulations. So, a Catholic university could receive federal funds, but that simply means that, as far as the government is concerned, the university is not "religious." If you are eligible for government money, you shouldn't be eligible for government exemption, and if you exempt yourself from regulation, you forfeit your rights to the public purse.

I don't have a problem with publicly funded schools teaching creationism. I would like to be able to get support for my own daughter's school, where she is taught that a messiah was born of a virgin mother 2,000 years ago.I consider the things taught outside of the state-mandated curriculum as "extra". The decision to support a private school should be: a) is it accredited and b) is it effectively teaching the state-mandated curriculum (which I believe is now "core standards" shared by 48 or so states)If the school meets those standards, I don't see why it can't receive public-funding if it teaches other things over and above that. And if the "other things" are problematic, pull the schools' accreditation.

"Similarly, in the absence of a single-payer system, if medicare and medicaid funding, not to mention federal student aid, is used to support the heath provisions offered by 'private' hospitals and universities, these institutions can no longer claim exemption from government oversight."I think there are two problems with this formulation. The first is with the phrase "in the absence of a single-payer system." With such a system in place, the government would still be paying private hospitals what it now pays for patients on Medicare and Medicaid plus whatever it would pay for everyone else. A single-payer insurance system does not mean a government takeover of hospitals.Second, I don't think anyone is denying that the government should have some oversight of hospitals, public or private. The question is whether it should exercise that oversight in such a way as to require Catholic hospitals to offer services that violate church teaching. No one is suggesting, for example, that safety regulations should be suspended for Catholic hospitals just because they are Catholic.

The blog posts linked to are primarily made up of references to op-eds and show me very little reporting. Which is understandable given the fact the Jindal bill was only passed and signed a little over a month ago, and its implementation is currently stalled because the states 2 biggest teacher's unions filed a constitutional challenge in state court this week (shocking). But there are some facts to consider, namely:1. The bill passed essentially expands a system of educational reforms that has been in effect in New Orleans since 2005. Not only do I not see any evidence for an alarming increase in creationists and global warming deniers among the poor children of New Orleans who have flocked to private and charter schools, polling indicates a very high degree of satisfaction among these citizens who have been trapped in a dysfunctional (to put it mildly) public system. There have been failures among these schools (my law firm was involved in a dispute in pushing out a management company that was woefully inept), but on the whole, I think national experts agree - the New Orleans system is a decided victory for education reform. Does Andrew Sullivan want to undo that?2. The schools that are listed in the "reports" as having signed up to offer the vouchers are all in largely white, rural, more traditionally "Bible belt" areas of the state, so the educational offerings more than likely represent the point of view many of these people already hold. I see no danger in mass numbers of otherwise innocent children being subjected to weird beliefs. Furthermore, Catholic schools - which continue to be hugely popular in Louisiana - have received state aid for years, and they teach some pretty bizarre things like helping the poor, and standing up for the vulnerable. So where do you draw the line?By the way, the guy implementing the program - the state superintendent John White - was the leader of New Orleans' Recovery School District. His educational links go back to Joel Klein and Arne Duncan, so I'm sure he is all for promoting a Christianism agenda!

Eric: You wrote: "If they [schools] are recognized by the government as religious institutions, then they should not receive government money."I realize that this is the Supreme Court's view since McCollum (already anticipated in the dissent from Everson), but shouldn't it be reconsidered? It makes religious schools the only ones that can't receive aid from the government. Thus government aid can go to a charter school whose curriculum is based, say, upon the theories set out in Black Athena or upon anyone else's worldviews or histories, but not to one based on the Bible. Which doesn't seem quite fair. Why is it only religiously-inspired speech that suffers this disqualification?

Why does government money necessarily require government oversight. In medicare and medicaid, the government is buying services. Why isnt a private institution free to decide which services it wants to sell to the government? That is the way private business is generally conducted.

Irene: "if the 'other things' are problematic, pull the schools accreditation." Yes, my intuition would be to support pulling the accreditation of a school that teaches that humans lived alongside dinosaurs, but I imagine that's when truly private schools, who don't take federal funds, would say that their "free exercise" was being violated. Then we would have to have a debate about what schools count as meeting the minimum education requirements, regardless of funding.Matt: Thanks for the correction re: "single-payer," I hope that I fixed the error. As for your second point, it seems to me that the services on offer at Catholic hospitals receiving public funding is what is at issue. If "we" decide that an individual has a right to access certain services, then any hospital supported by medicare and medicaid funds must provide the services required or stop receiving federal funds, which might then go to a hospital that will provide the services. "I think 'x' is 'intrinsically evil'" is not an argument that the government is competent to assess, not least because, as far as the government is concerned, 'x' could be a particular service or a safety regulation. The government can only determine whether a group is "exempt from regulation/not-eligible for funds" or "non-exempt/eligible" based on the current political definition of "religion."Jeff: "I see no danger in mass numbers of otherwise innocent children being subjected to weird beliefs." I do.Joe: I would be happy to expand the political definition of "religion" to include the Black Athena folks. I don't see any reason that the political definition of "religion" has to be coterminous with a Bible-based worldview.

"Jeff: I see no danger in mass numbers of otherwise innocent children being subjected to weird beliefs. I do."Evidence?

Bruce: A private business is free to decide what services to sell, as long as you agree that the government is free to decide what services to buy. That's how business works, right? So, if the government wants healthcare to include access to contraception or education to include teaching evolution, then only those institutions that provide those services should receive the federal money earmarked for them. Why should the government buy a healthcare or education package that doesn't include everything it wants?

Jeff: If those "weird beliefs" include some people being inferior to others, I imagine that would be "dangerous." No?

Great idea Eric, but that is not what the government proposed. The government may find that the beneficiaries of its largess do not like the restricted access to services which would flow from your suggestion. So rather than the government deal with the problem its policies foment, it forces others to adjust. Looks like totalitarianism, not freedom, to me.

Eric: "Then we would have to have a debate about what schools count as meeting the minimum education requirements, regardless of funding."But, Eric, don't we already do that?. What I'm saying is a little bit the flip side of what you're saying. The state mandates that I must educate my child according to certain criteria. NY, at least, requires that private schools must offer curricula substantially equivalent to public schools. If I send my child to a state-approved private school, I have met my legal obligation to educate my child. I don't see how the State can on the one hand say it meets the criteria of a substantially equivalent education and at the same time say it is unworthy of funding.

Bruce: The problem is that the government is not a private actor, but it is "us." So, the business model you propose doesn't work. The relationship between the government ("us") and the agents it ("we") empowers to provide public services is not the same as between a private corporation and its contractors. The fact that you take it to be the same makes your claim that the government is acting like a "totalitarian dictator" seem logical, because that's how corporations work, but the US is not China.

Irene: I understand what you are saying, but I take it that accreditation does not run afoul of the establishment clause. Just because the government accredits a "religious" school, doesn't mean that the government is financially supporting that school and the "other things" that it does. So, accreditation by itself doesn't equal establishment. That's why it has to be kept separate from the funding question.

Eric,You write, in response to Fr. Komonchak, "I would be happy to expand the political definition of 'religion' to include the Black Athena folks." I'm afraid you'd have to expand it much further than that to ensure the kind of neutrality you seem to demand. Every grade school in the country, public or private, secular or religious, inculcates values that the scientific method does not vouchsafe. Public schools have always been a place of character formation, and always will be.You write, in response to Bruce, "Why should the government buy a healthcare or education package that doesn't include everything it wants." But the government does not buy "a healthcare package" from Catholic hospitals; it reimburses them for particular services. There is no reason in principle that it cannot pay St. So-and-So's Hospital for services A-Y and Metropolitan Public Hospital for service Z (in addition to services A-Y). In most parts of the country, Catholic hospitals aren't the only option, even if they are often the best or most convenient one.And if St. So-and-So's Hospital is the only hospital in the area and it doesn't offer a non-emergency service the government wishes to provide to those covered by Medicaid and Medicare, then the government ought to arrange for the provision of that service by opening a public hospital or clinic in the area. Again, the rule of thumb ought to be: Where there is a compelling state interest that some service be provided, the government has an obligation to provide it.Imagine a government committee drawing up a list of disciplines any college worthy of the name ought to teach, and say it includes comparative literature. Now imagine a college, excellent in every other respect, that, for whatever reason, doesn't have a comparative-literature department. Would it makes sense for the government to decide that students can't use federally subsidized Stafford loans to pay for tuition at this college, when there are other colleges and universities, accessible to the same pool of students, that do offer comparative literature? I don't think so.

Eric: I attended Fordham University as an undergraduate and received Federal grants and loans. I also took a tax deduction for my daughters' childcare costs at a Church-run preschool. Why is it okay for government to support my pre-school and college costs at a religious-run organization, but not primary and secondary school? Do you believe government shouldn't finance those expenses at any educational level?

Eric: Eric: Nothing I wrote suggested that "the political definition of religion has to be coterminous with a Bible-based worldview."What about my point on the disqualifications only religion (or religions) suffer?

How much does organized religion benefit society? The church went downhill ever since it began to receive government funds. In return churches kowtowed to governments and did not object when people were brutalized. The French Revolution was against the church as well as the government. In general churches receive very favorable treatment. More than anytime in American history the churches are politically involved. The pursuit of power rather than goodness predominates. The churches should retain their freedom but no money nor tax exemption. One should sacrifice to choose a religion rather than place it on ones' resume to receive special treatment.

In 2002, the Supreme Court ruled that it did not violate the establishment clause if parents were given vouchers which they could use to pay tuition at a school of their choice:

Held:The program does not offend the Establishment Clause. (a)Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U.S. 203, 222223. This Courts jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U.S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits....http://www.law.cornell.edu/supct/html/00-1751.ZS.html

Just as Smith said that a law of general application that has a rational purpose isn't an unconstitutional prohibition of the free exercise of religion, this says that a law of general application that has a rational purpose isn't an unconstitutional establishment of religion.

I think the impediment to state aid to private schools comes out of the Blaine Amendment. An openly anti-Catholic, anti-immigrant law of the 1800s, 38 states amended their constitutions to prohibit funding for private schools. http://en.wikipedia.org/wiki/Blaine_Amendment

Sorry, prohibit funging for sectarian schools, that is.

-- Jeff: I see no danger in mass numbers of otherwise innocent children being subjected to weird beliefs. I do. Evidence? --To many (possibly most) people in the world, the idea of a baby being born to a virgin because of the influence of something represented by a dove is totally wierd. Or that someone was "raised" from the dead and lived again. Or that a tasteless wafer and a sip of wine somehow become real flesh and blood. Or that girls wearing patent leather shoes incite boys to throes of lustful passion. Or that vowed celibates have credible knowledge about problems and solutions when it comes to marital and sexual matters.Oh, one can indeed go on and on when it comes to the perceptions of the dangers of "wierd beliefs."

The fact of the matter is that you cannot take government money and use it for evangelical purposes. Thats establishment.The Supreme Court held in 2002 that it is constitutional for state governments to give parents money that can then be used at explicitly religious. So what you say is the "fact of the matter" is 100% wrong as applied to the Louisiana law you're discussing. Then you say: Similarly, in the absence of a single-payer system a deprivatized [sic] healthcare system, if medicare [sic] and medicaid [sic] funding, not to mention federal student aid, is used to support the heath [sic] provisions offered by private hospitals and universities, these institutions can no longer claim exemption from government oversight.Completely wrong again. That's just not the law. Look up the unconstitutional conditions doctrine: people generally don't forfeit their constitutional rights by participating in governmental funding programs. And that's a good thing. By your analysis, the government would be free to ban religion or ban the hiring of black people as long as it was subsidizing the activity in question.

Common sense must prevail here. And it is a known fact that common sense is not too common. It is the right of the government (us) to have some say-so in the institutions that it funds. Yes, as a public school teacher there are things that I would never teach or I would lose my job; and I hope that goes for private school teachers as well. When I first started teaching I remember a science teacher stating that if you taught that the world was flat, these kids would believe it!As regards Health care, government intervention has been 60 years coming. I saw a special on CNN with Sanje Goupta trying to explain why one IV bag costs $200, and why one suture costs $200, and why a sterilized cutting tool costs $2000, and on and on. The bottom line besides the obvious research that has gone into these items etc. is that indigent and people who don't carry insurance have driven these costs up to those who have insurance. Our system needs to be fixed. And hiding behind a "religious freedom" cry as regards Obama's proposed fix concerning contraceptive services offered to religious institutions who hire the public does not make sense. The institution does not endorse these services even though the government may agree to pay for them. There is a differnce there that is recognizable by the public. The church has way too many problems to try and fly the religious freedom flag.

Stuart is right -- the government may not pay for religious instruction of a particular religion. (Teaching history of religion or comparative religion is OK because by teaching all there is no question of establishing just one of them, which is what the Constitution prohibits.)Current vouchers pay for religious instruction. That is obviously unconstitutional. Solution? Subtract the cost of the religious instruction from the total voucher grant. If, for instance, a school's curriculum includes 1/6 as religion courses, then reduce the voucher by 1/6.Parents and members of the religion would have to make up the difference. Fine. That would be a cheap price to protect our great freedom of religion that our bishops are touting this week.

I am a taxpayer in one of the wealthiest counties in the nation, and we have a first-rate public school system. I have no interest in allowing parents to take my tax dollars and use them to set up a parallel school system, religious or otherwise. We paid for one public system, it is working adequately. If parents want a private or parochial education for their children, they can pay for it on their own, in ADDITION to their support of the common school system that all pay for -- whether parents of children in the school or not. I know things are different in less wealthy districts, but on the other hand, if it can work here, a diverse community, it ought to be made to work elsewhere.With all due respect to my cajun relatives in Louisiana, public services there have been so corrupt for so long it is pretty hard to single out public schools as an example of anything.

Oops =-I didn't realize that Stuart's first sentence was a quotation, and I took off from there. Sorry, Stuart.I didn't realize that the Court had said it's OK to give parents money for religious instruction. Does the Court subscribe to some notion of 'remote material cooperation'? I mean, did it argue that it gave the money to the parents, not the kids, and so it didn't support their religious education directly?

Here in TN, they have taken steps though new legislation to allow creationism back into the classroom. This law turns the clock back nearly 100 years here in the seemingly unprogressive South and is simply embarrassing. There is no argument against the Theory of Evolution other than that of religious doctrine. The Monkey Law only opens the door for fanatic Christianity to creep its way back into our classrooms. You can see my visual response as a Tennessean to this absurd law on my artists blog at http://dregstudiosart.blogspot.com/2012/04/pulpit-in-classroom-biblical-... with some evolutionary art and a little bit of simple logic.

Exactly, Ann. It's the same principle by which Pell grants can be used at a religious university, at which a student might (by his or her own free choice) take a religious class. The government money isn't being designated for the religious class -- it's being designated for the student to educate themselves as they choose. So the religious element is the student's choice, not the government's. In the Supreme Court's words:

A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.

" Then we would have to have a debate about what schools count as meeting the minimum education requirements, regardless of funding."Eric --Well, what should be the minimum across the U. S.? It seems to me that what is objectionable about the creationist schools is not that they teach creationism but that they do not ALSO teach that most scientists disagree with it and they do not give some time to anti-creationism arguments. (It seems to me that at least on a high school level all children have a right to hear *at least* some of the basic reasons that different people -- both creationist and Darwinians -- hold different views. And that's a whole other thread: what curriculum do all have a *right* to?)On the other hand, the schools that teach only Darwinism short change the kids too (at least on a high school level). It is true that creationism is bad science, but creationism/intelligent design is not only bad science -- it incorporates some philosophical principles that the scientists (as such) are simply not competent to judge. While creationism is bad science, the Darwinists are generally very bad philosophers who would like to reduce everything to particles moving about in space. Both isms are disasters. So, again, what do kids have a right to? The creationist/Darwinist argument continues to polarize the West even after more than 150 years. I think that the reason it is still unresolved is because the Humanities have been so dreadfully weakened in the colleges over the last 75 years that our public intellectuals can no longer identify a philosophical problem when they find one, and so they ask the scientists for the answers to all their questions. Well, the scientists can't provide them -- they, as scientists, are limited to only one kind of question. Because of the failure of the colleges we're still arguing over whether or not some kid in Shreveport High School ought to be taught creationism or Darwinism and who should pay for it either way.The politicians, of course, don't know anything except who can be expected to pay for their next political campaign.We avoid the foundations at our own risk.

"Well, what should be the minimum across the U. S.?"Our parochial school next year will begin teaching something called "core standards" which is a joint effort of states (not Federal govt) to develop common standards. 45 states and 3 territories have formally adopted the standards. http://www.corestandards.org/

"There is no reason in principle that it cannot pay St. So-and-sos Hospital for services A-Y and Metropolitan Public Hospital for service Z (in addition to services A-Y). In most parts of the country, Catholic hospitals arent the only option, even if they are often the best or most convenient one."And if St. So-and-sos Hospital is the only hospital in the area and it doesnt offer a non-emergency service the government wishes to provide to those covered by Medicaid and Medicare, then the government ought arrange for the provision of that service by opening a public hospital or clinic in the area. Again, the rule of thumb ought to be: Where there is a compelling state interest that some service be provided, the government has an obligation to provide it."Matthew --EXCELLENT POST!!Now an ugly question rears its head: why do some people oppose allowing this principle to operate? Could it be they'd like to put the religious hospitals and schools out of business? There are some people who would. See Dawkins et Co. At least he's honest about it.

""A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. '"Stuart --Thanks very much for the SCOTUS quote. I must say it makes the same sort of sense that paying for comparative religion courses makes -- because all views are presented none is established -- and because the religions of the recipients of the vouchers are varied no religion is established.That might be true, but I'm still certain that the government shouldn't be paying for grammar school and high school religion classes. They are typically meant to persuade impressionable kids of the truth of one religion, and I don't think that can be justified even if many kids of many different religions get the vouchers. With college kids, they're more independent and they are taught to be critical, so I don't see the threat of the establishment of a religion. Of course, if the whole country turned Mormon/Catholic/Zen, then it would be a different situation.We mess with the First Amendment at our own risk. I think the bishops are right about that.

Irene --Thanks for that site, but it turned me off immediately. It says its mission is to produce kids who can compete in the global economy. Well, rah, rah for them. But if that is all schools are best for our culture is doomed. There has to be more to life than commercial competition.

Jeff, you don't have a problem with forking over your taxes so that they can subsidize schools which teach that the Pope is the Antichrist and Catholics are not Christians? Evangelicals will make nice with Catholics as long as it suits their anti-abortion, anti-gay rights agenda, but they won't change their firmly held conviction that we're all going to hell.

Matt, In my response to Joe, I did not say anything about the standards that would determine an appropriately "secular" curriculum, and I certainly would not want to endorse a narrowly scientistic one. I think that there are properly "secular" values (i.e. ones that are available to human reason without reference to revealed religion or any other foundational worldview), and yes, of course, those should, have been, are, and will be used to form character in public schools. But any ostensibly competing value system that claims to be insulated from "outside" critique (e.g. because its first principles have been Divinely revealed) should not be supported by government funds.Concerning medicare/medicaid reimbursement, of course, you are right that the money is given to hospitals to cover specific services. I've seen numbers that say that medicare/medicaid account for 40% or more of hospital revenue, and that number goes up depending on the area. US News reports that 60% of the revenue in the Sinai Health System in Chicago comes from medicaid and only 5% comes from private carriers. (http://health.usnews.com/health-news/best-practices-in-health/articles/2...)As Medicaid benefits are expanded, that number will only increase, and at a certain point, the government will be responsible for a major share of the operating budgets of hospitals. At a certain point, it is simply more efficient and cost effective to ask the existing hospitals to provide all of the services deemed "necessary," rather than invest money in starting up entirely new facilities. And, given that the healthcare money being spent by the government is, technically, "our" money, one would think that private providers should have to submit to the buying public when it comes to healthcare reform. The whole point of healthcare reform is to lower costs and increase access. So, why should we allow private interests to unduly thwart public needs? Why should the rule of thumb be that the latter should always be subordinated to the former, when the private interests are "religious"? We wouldn't do that if the interests were financial or preferential.Regarding the non-comparative literature college example, colleges and universities do have to go through accreditation reviews. So, if offering "x" was included as part of the standard for accreditation, then a college not offering "x" would not be accredited. The principle still holds, even if you stipulate arbitrary "values" for "x."

Joe: I'm sorry, I didn't mean to imply that you were saying that the political definition of "religion" had to be coterminous with a Bible-based worldview. I was agreeing with you that conventionally religious doctrines ought not to be singled out by the law, but any worldview claiming to be insulated from "outside" critique ought to be considered politically "religious." So, the Black Athena folks, who I know nothing about, might be just as easily considered not eligible for funding as Christians. To your point, though, the perceived discrimination and/or privileging of "religion," depending on the issue and one's perspective, is the constitution's fault. It is the constitution that singles out "religion" for both protection in its free exercise and for its disestablishment. I think it's important to remember that the same amendment that protects "religion" also seeks to exclude it. Of course, the extent of the protection and exclusion is always a question of interpretation. I find it interesting, though, that when it's a question of claiming exemption, "we" argue for the widest definition of protected "religious" practice possible, but when it is a question of being eligible for funding, "we" do our best to make "religion" look like any other "worldview" in order to neutralize the exclusionary force of the concept. This is natural. No one likes being excluded, and everyone wants to be protected, but the constitution seems to suggest that the protections come with the exclusions.

Ann Olivier finds philosophical depth in creationism and thinks it should be thought alongside the theory of evolution. This is exactly parallel to the idea that astology should be taught alongside astronomy. What Olivier is groping for is the theological doctrine of Creation, which has nothing to do with the debased coinage of creationism. New Age fuzziness that professes to judge the wisdom of all disciplines is a dangerous form of obscurantism.

Eric: I don't think that the First Amendment can be taken to mean that it both protects and excludes religion. What it excludes is the establishment of any particular religion; it is not dealing with that modern abstraction "religion". It was Justice Black's dictum in Everson that turned the whole matter around: ""The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." This led J.C. Murray to remark, "We won on the particular case, but lost on the First Amendment." Personally, I don't see why the FA need be taken to mean that aid to all religions must be excluded. If all religions were to receive governmental aid, none of them would be established.

JAK --Back to Platonic problems. ISTM there are differences between 1) "an establishment of religion", 2) "the establishment of a religion", and 3) "the establishment of the Church of England",The First Amendment forbids 1). It says: "Congress shall make no law respecting an establishment of religion". It seems to me that supporting all religions would amount to "an establishment of religion", entail an establishment of religion. To establish many religions is to establish religion. (Splitting hairs, yes, but that's what protecting a Constitution requires.) Further, though the agnostics and atheists are not mentioned in the FA, it seems to me that given the government as agnostic (or IS that a given?) the non-believers should have the right not-to-support any and all religions. (The issue here is whether or not non-religous conscience has any constitutional protection. I can't say why, but I think it does. Probably beause freedome of speech implies freedom of thought.)

Joe, I think it's hard to avoid the "modern," abstract definition of "religion." If you are going to have a notion of "religious exemption" that is supposed to fit a plurality of traditions, then you are going to have to have an abstract, or universal, concept. And if there is an abstract category of "religiously exempt" groups, then in exchange for being exempt from the effects of the law, this same abstract collection will need to be barred from its privileges. It doesn't make a lot of sense for the government to support several communities all claiming exemption from its laws. If a religion wants to be set apart, then it is going to have to support itself.