Second Quarter 1998
The following excerpts come from the just-released book, Equal Treatment of Religion in a Pluralistic Society, edited by Stephen V. Monsma and J. Christopher Soper (Eerdmans, 1998). Monsma, a trustee of the Center for Public Justice, and Soper both teach at Pepperdine University.
Introduction by Stephen V. Monsma and J. Christopher Soper
Three end-of-the-twentieth-century facts converge to form the seedbed for the topic of this book: the increasing religious pluralism of the United States, the rise of the comprehensive administrative state, and continuing widespread dissatisfaction with Supreme Court church-state jurisprudence.
The basic concept of equal treatment says that the establishment clause of the First Amendment (Congress shall make no law respecting an establishment of religion) is not violated, even if government grants aid, recognition, or support to religion or religious groups, as long as government gives equal aid, recognition, or support to all religions and parallel or similar secularly based systems of belief and their organized groups. Equal treatment, says the First Amendment, does not mandate an artificial, perhaps impossible-to-attain strict separation between government and all of religion in its various manifestations. Instead, it argues that the establishment clause mandates governmental neutrality on matters of religion, a neutrality that is more fully attained by the equal treatment of persons and groups of all faiths—religious and secular—than by an attempt strictly to separate religion and government, which leads to a rejection of all governmental aid, support, and recognition for religious groups.....
Strict separationists tend to believe that this sort of neutrality is attained when government gives no aid to religion, for when government aids religion, it must choose which religions to aid and what levels of aid to provide. And even if it aids all religions, it is showing preference to religion over secular belief structures. Equal treatment advocates... argue that neutrality is violated if government grants support to a variety of secularly based programs—but systematically excludes all of their religiously based counterparts. It is these contrasting perspectives that this book explores.
Principled Foundations (from Chapter 3) by James W. Skillen, Center for Public Justice
The way to resolve deep religious disputes about public life is not to grant a privilege to secularism in public life while pushing other views of life out of the public arena, but rather to assure all religions equal access to the public square regardless of their majority or minority status. In a pluralistic society, organized under a constitutionally limited government, the argument for the equal treatment of religion can be understood as an extension of the argument for "justice for all" or for "equal treatment under the law."
A just political order is characterized, among other things, by its adherence to two pluralist principles, which should govern two types of human diversity. The first type of diversity is the wide range of human responsibilities and social institutions, and the first pluralist principle is that the laws of the land should acknowledge and do justice to this societal diversity by upholding an open, non-totalitarian, and pluralist social order. The second type of diversity is the variety of faiths and philosophies by which people direct their public and private lives, and the second pluralist principle requires that the laws of the land do justice to these faiths and philosophies by means of their equitable and nondiscriminatory treatment in public as well as in private spheres of life.
A strict separationist position on religion cannot do justice to these principles of pluralism, because it insists that religion can be predefined as a private affair and that the public order is neutrally secular. While this position aims to shut out other views of religion from public life, it remains unselfconscious about the deep religious character of its own comprehensive point of view, which it wants to impose. The fact is that what underlies the religious/secular division of life is a comprehensive view of reality, with roots in the Enlightenment, that designates traditional religion as private and modern politics as secular. It is this comprehensive view of life, therefore, that ought to be compared with comprehensive Christianity or comprehensive Judaism. Strict separationists would no more want their view of public life to be confined entirely to private spheres than would Christians, Muslims, and Jews want their views of life to be so confined. The only way to treat all positions fairly, then, is by protecting the full freedom of all to express themselves, to exercise their convictions, in public as well as in private life—in other words, in all spheres of life ....
The principle of confessional pluralism is enshrined in the U.S. Constitution's First Amendment, but that principle has been challenged and sometimes violated by the interpretation that religion is a purely private or ecclesiastical affair. In this chapter, I have tried to show that such an interpretation not only misunderstands the First Amendment, but also does an injustice to many non-governmental institutions and organizations by overlooking their independent character or forcing on them a secularized identity. Genuine religious freedom can be achieved only by means of equal legal treatment of all religions and religiously equivalent views of life, a treatment which recognizes that they have the right to express themselves in diverse ways in every sphere of life.
Equal Treatment for Public Education (from Chapter Four) by Charles L. Glenn, Boston University
The only way to have a publicly supported educational system that can truly educate through dealing seriously with the profound stuff of life, while avoiding paralyzing conflict over the basis and content of this education, is to encourage a real diversity among schools, based upon parent and teacher choice among meaningful alternatives. Teachers must be allowed to do their intricate work in schools that provide collegial support based upon shared values and goals. Parents must be allowed to select schools whose teachers share their own values. Parents, teachers, and children should be encouraged to form communities in support of real education. This is, not coincidentally, also the best formula for the fundamental reform that American education so urgently requires.
It may be that the fundamental problem of American public schools is the misguided effort to subject them to the bureaucratic rationality of large school systems and extensive—and intrusive—state and federal regulation rather than to empower them as institutions of the civil society. The belief that magnet schools provide this kind of empowerment may explain why they have been so successful, and why charter schools, the logical next step in school-level autonomy, have aroused such enthusiasm. But those who develop or seek to enroll their children in charter schools are already coming up against the limits created by the prevailing doctrine of religious neutrality. It is no accident that the great majority of nonpublic schools in the United States have a religious basis: those motivated to make the efforts that these schools demand of their sponsors, staff, and clients alike are typically concerned that the meaning of life not be "off limits."
It is not enough to talk about the importance of families, if the educational system is so organized as to deny parents the opportunity to make significant decisions. The present system of assignment of pupils to schools in the United States is almost unique among nations with universal schooling in its refusal to acknowledge the right of parents to choose schools for their children ....
Federally funded research that I have directed found that inner-city parents of all racial/ethnic groups are keenly interested in making school choices for their children, and use a variety of means of obtaining information and reaching conclusions about which schools would best meet their needs. The major impediment to allowing them to exercise such choices is the disrespect for the family that is unfortunately widespread among professional educators ....
Policies that treat parents as incapable of responsible decision-making do not serve children well. A system that expects parents to be passive conveys a message that responsible choice, the expression of character or virtue, is exercised for, not by, the individual—a lesson that encourages personal irresponsibility. An opportunity is thereby lost to engage parents and their children together in making decisions whose consequences are immediately apparent to both.
Normative judgments are the essential stuff of successful family life, and of successful education. They cannot be avoided. Neither can they be imposed by the state. That is why only a system of schooling based upon family choice of schools would permit the uninhibited expression of particular perspectives on the truth in schools.
Realistically, however, the courts are unlikely to reach the point of articulating a right to publicly funded religious schooling until a lot more water has flowed under the bridge. Even in Europe, the human-rights high court has declined to rule that the right to choose a religiously based school implies a right to public funding for that school, though in fact most European governments do provide such funding as a policy matter. It seems likely that a similar sequence of political and legal decisions will be followed in the United States. First, governments will decide to support religiously based choices as a matter of fairness and good policy. Then the courts will rule that this does not violate the establishment clause if the decision about which schools should receive public funds rests entirely in the hands of parents.
