Good exercise

It was a decision that "strikes at the very heart of the constitutionally mandated separation of church and state" warned the lead editorial in the New York Times (June 12). The editorial went on to conjure up a hoary vision of "taxpayer dollars [flowing] into sectarian institutions in contravention of the First Amendment prohibition against the establishment of religion." It railed against the tax-funding of "religious indoctrination," predicted a financial windfall for "religious lobbies,’’ and even foresaw the decimation of the public school system. In short, to fend off the scandalous prospect of mixing religion, education, and government funding, the Times summoned the specter of apocalypse.

The cause of this hyperbole was last month’s Wisconsin Supreme Court decision upholding the use of vouchers funded by public monies for children attending church-affiliated schools. (See www.wisbar.org/Wis2/97-0270.htm for the text of the ruling.) If upheld by the United States Supreme Court, the Wisconsin decision may well bring about a sea change in public education and in how many think about the alleged "wall of separation" between church and state.

In reality, the Milwaukee Parental Choice Program, as the voucher plan is called, is no threat either to government neutrality toward religion or to the health of the public schools. It merely extends to religious schools a program already in place for nonsectarian private schools. Optimally, the Wisconsin decision will mean wider choice and better schooling for about 14,000 of Milwaukee’s poorest children (only poor kids are eligible) and, for the nation as a whole, a less narrowly separationist understanding of the First Amendment’s establishment clause. Both prospects are welcome.

Milwaukee’s voucher plan was carefully designed by parents, lawyers, and legislators to satisfy the U.S. Supreme Court’s recent, somewhat more flexible rulings concerning government aid to religious institutions. These First Amendment rulings suggest that government benefits permitted to secular private enterprises should not be denied to similar religious enterprises. Maintaining state neutrality toward religion does not mean discriminating in favor of nonreligion.

Specifically, Wisconsin’s voucher program had to meet the Supreme Court’s three-part Lemon test: it had to serve a secular purpose; its primary effect could not advance or inhibit religion; and it could not result in excessive entanglement between government and religion. In applying those criteria, the Wisconsin court found the law constitutional. First, it judged that the state’s interest in educating all of its citizens was the primary and secular purpose of the state’s voucher plan. Second, the voucher program is strictly neutral in dispensing money to either sectarian or nonsectarian institutions. Consequently, the law did not advance or inhibit religion. Important here is that voucher money goes to parents rather than directly to schools. As U.S. Supreme Court Justice Anthony Kennedy has articulated the principle of government neutrality elsewhere: "not one cent flows from the state to a sectarian private school...except as a result of the necessary and intervening choices of individual parents.’’ In other words, taxpayers, not government, are doing the choosing among religions or between religious and nonreligious schools. Finally, because the law does not entail any special state supervision of religious schools, no excessive entanglement results. Also crucial in securing the Wisconsin court’s approval was the voucher law’s provision allowing parents to determine whether or not their children will participate in any religious activity.

As the Times editorial exemplifies, the rightly cherished constitutional principle of government neutrality toward religious groups is too often understood to require a kind of absolute quarantine between religious bodies and the state. That is not what the First Amendment’s establishment clause rightly understood means. As John Courtney Murray wrote, "The whole intent of the First Amendment was to protect, not to injure, the interests of religion in American society.’’ If Americans are to exercise freely their right to religious expression, breaches in the so-called "wall of separation" between church and state are inevitable. Tax-exemption for churches and military chaplaincies, and government aid to religious preschools, colleges, and universities are all examples of how religious expression is accommodated under the First Amendment without resulting in the "establishment" of any one religion. More important, the "American proposition," as Murray phrased it, does not isolate but rather links religious expression and the practice of self-government. Federal Appeals Judge John Noonan reminds us of this political reality in The Lustre of Our Country (reviewed on page 20). Any absolute separation of church and state, Noonan writes, "obscure[s] the overlap that exists." Historically, for Americans, "no watertight mental compartments exist by which their religious ideas are isolated from their civic responsibilities."

It is in that light that the injustice of the long-standing prohibition against public funding for religious-affiliated elementary and secondary schools should be understood. Accommodating parental choice in schools would demonstrate a proper regard for the consciences of parents who desire a religious education for their children as well as a realistic assessment of the strengths religious pluralism has long brought to American society. The associational life represented by schools and churches is a laboratory of self-government, not a threat to democracy or national unity. Similarly, voucher programs are not a threat to the far better-funded public schools, which still properly enjoy the allegiance of the majority of Americans. Rather, as in Wisconsin, they enfranchise the poor and constitute a spur to excellence for a public system that has notoriously failed the nation’s neediest.

However, as the Framers of the Constitution knew and many religious educators acknowledge, the acceptance of public monies can threaten the integrity of religious institutions. For example, Catholic schools now require all students, regardless of their religious affiliation, to take religion classes and, in some cases, to attend Mass. Clearly, such stipulations will no longer be permitted under the Wisconsin law. It seems unlikely that many parents will remove their children from such classes or activities, but that fact cannot hide the transfer of authority from school officials to the state or the relegation of religious duty involved. Other, similar conflicts will undoubtedly emerge as Catholic schools accept tuition vouchers. Intelligent compromise, as many Catholic colleges have shown, can preserve the unique character of Catholic schools. But the risks involved should not be lightly dismissed. Vigilance will be needed, and, in some cases, conscience may demand the rejection of tax money.

Finally, it is crucial to keep in mind that the Milwaukee voucher program is designed first and foremost to help poor children. Wisconsin’s highest court has recognized that vouchers accommodate religious expression in a way that also serves the interests of the community as a whole. That is how the American experience of religious freedom has always worked at its best.

Published in the 1998-06-17 issue: 
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