What is “separation of
church and state” in the United States? Do most citizens even know
more than their own connotation of the legal concept of maintaining a
secular state? I believe we would benefit from reviewing the often
debated implications of this term.
The exact term is an
offshoot of the phrase, "wall of separation between church and
state,” as written by Thomas Jefferson in his letter to the Danbury
Baptist Association in 1802. In that letter, referencing the First
Amendment to the United States Constitution, Jefferson writes:
“Believing with you
that religion is a matter which lies solely between Man & his
God, that he owes account to none other for his faith or his worship,
that the legitimate powers of government reach actions only, &
not opinions, I contemplate with sovereign reverence that act of the
whole American people which declared that their legislature should
'make no law respecting an establishment of religion, or prohibiting
the free exercise thereof,' thus building a wall of separation
between Church and State."
Jefferson was describing
to the Baptists that the United States Bill of Rights prevents the
establishment of a national church, and in so doing they did not have
to fear government interference in their right to expressions of
religious conscience. Thus, the First Amendment not only allows
citizens the freedom to practice any religion of their choice, but
also prevents the government from officially recognizing or favoring
any religion.
In this same letter,
Jefferson explained the intent of the Establishment Clause and Free
Exercise Clause of the First Amendment to the Constitution, which
reads:
“Congress shall make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof…”
This, Thomas Jefferson
said, built a “wall of separation of church and state.”
The government does
not prohibit people
from referencing or accommodating religion, nor
is the government compelled to scrub all
religious references from the public square.
Rather, the First
Amendment ensures both
that the government does not show preference to a certain religion
and that the government does not take away an individual’s ability
to exercise religion. In other words, the church should not rule over
the state, and the state cannot rule over the church. Religion is too
important to be a government program or a political pageant.
The Courts have affirmed
this understanding time and time again.
Fast
Forward to the U.S. Supreme Court in January 2020
Now, the U.S. Supreme
Court's conservative majority seemed ready to invalidate a provision
of the Montana state constitution that bars aid to religious schools.
Such a decision could work a sea change in constitutional law,
significantly removing the longstanding separation between church and
state. The case at hand is
Espinoza v. Montana.
The focal point was a
ruling by the Montana Supreme Court that struck down a tax subsidy
for both religious and nonreligious private schools. The Montana
court said that the subsidy violated a state constitutional provision
barring any state aid to religious schools, whether direct or
indirect.
The case involved a
Montana program launched in 2015 to provide tax credits for people
and businesses that donate to private schools. The organizations that
receive the contributions then give financial aid to parents, who
decided which private schools their children should attend.
Thirty-seven other states
have no-aid state constitutional provisions similar to Montana's, and
for decades, conservative religious groups and school-choice
advocates have sought to get rid of them. Now, that seems a little
closer.
Nina Totenberg, National
Public Radio's award-winning legal affairs correspondent, feels it is
important to know a little more about the present justices of the
court …
“Five of the justices
at some time in their lives attended private Catholic schools, and
some of them were particularly vocal. Justice Brett Kavanaugh said
that the history of excluding religious schools from public funding
has its roots in the 'religious bigotry against Catholics' in the
late 1800s. He seemed to dismiss arguments made by the state's lawyer
that Montana had completely rewritten its constitution in 1972,
without any such bias.”
Attorney Mae Nan
Ellingson, described as “a pillar of law” and having the
distinction of being the youngest delegate to the 1972 Montana
Constitutional Convention, said afterward that there were ministers
and "people of all faiths" at the convention who
overwhelmingly had supported the no-aid provision.
"We didn't think that
public funds should be used to support private parochial education
but rather that public funds need to support public education,"
she said. Now, the justices “seem” uninterested in that record.
Chief Justice John Roberts
and Justice Samuel Alito compared the exclusion of parochial schools
from taxpayer-funded aid programs to unconstitutional discrimination
based on race – a view suggesting that Wednesday's case has the
potential for much broader public funding of parochial schools.
Although the Montana court
has treated all private schools the same way and it has invalidated
the tax subsidy for all private schools – whether they were
religious or not – lawyer Richard Komer, representing the religious
parents, maintained that the no-aid provision in the state
constitution is itself a violation of the federal constitution. And
he also argued that because the state constitution illegally
discriminated against religious schools and families, the tax-credit
program must be revived.
(Nina
Totenberg. “Supreme Court Could Be Headed To A Major Unraveling Of
Public School Funding.” NPR. January 23, 2020.)
Justice Ruth Bader
Ginsburg asked how the Montana court’s decision discriminated
against religion, since it canceled the scholarship program for all
private schools. Justice Ginsburg said …
“Under the Montana
judgment, these parents are treated no differently than parents of
children who are going to secular private schools. So where is the
harm?”
Implications For Public
Education
With a conservative
Supreme Court, here we stand at a crossroads whose course may lead to
sweeping changes in laws or constitutional provisions in 37 other
states that currently bar public funding for schools and churches.
Are the direct
implications of judgment more important than the decision in this
case?
The Wall Street Journal
reports …
“The Supreme Court
has been moving away from a strict separation of church and state
through opinions that extend religious exemptions from general laws
as well as other decisions forbidding government from denying some
benefits to religious organizations. Conservative groups backing the
Montana suit hope it will pave the way for broader taxpayer subsidy
of religious schools through vouchers and other programs.”
Last week, President Trump
rolled out guidance to reinforce religious freedom as he seeks to
rally evangelical voters. And Education Secretary Betsy DeVos, in
particular, has been a vocal advocate for expanding school choice
and treating “faith-based education” equally.
However, lawyers for the
Montana Department of Revenue argue that Montana's “No-Aid Clause,”
prohibiting aid to sectarian schools, was enacted in 1972 to “protect
religious liberty” and fulfill the
goal of protecting this liberty by “creating a structural barrier
between religious schools and government.”
They wrote. “By striking down the statute in its
entirety, it also ensured that no one is penalized for exercising
their faith.”
Katie Reilly reported in
Time …
“Teachers’ unions
and some civil rights groups have argued that ruling in favor of the
Montana parents would draw funding away from public schools. The
American Civil Liberties Union has called the case 'the latest in a
disturbing line of cases attacking the very foundations of the
separation of church and state.' And GLSEN, which advocates for LGBTQ
rights in schools, warned that it could allow public funds to go to
schools that discriminate against LGBTQ students and employees.”
I agree with Mark Joseph
Stern who wrote in Slate …
“Christian schools
have a right to teach this ideology, and Christian parents have a
right to send their children to these schools. But shouldn’t
Montana taxpayers also have a right not to subsidize these teachings,
which may violate their own religious beliefs or freedom of
conscience?”
(Mark
Joseph Stern. “The Supreme Court Could Force Taxpayers to Subsidize
Religious Schools.” Slate. January 22, 2020.)
Randi Weingarten,
president of the American Federation of Teachers, has called this
case an “earthquake” and one that would “turn the First
Amendment on its head.”
And, Lily Eskelsen García,
president of the National Education Association, said …
“This case is not
about improving education for schoolkids, it’s about expanding
vouchers, privatization—the systematic effort to dismantle our
neighborhood public schools. This represents just the latest stealth
political attack on public education, and they’re using the Supreme
Court to move their political agenda.”
It certainly seems that
way, doesn't it?
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