Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
The Real Religious Establishment
The U.S. Supreme Court will decide this term what may be the most important case affecting schooling in America since Brown v. The Board of Education. They will review Zelman v. Simmons-Harris, a decision that struck down Cleveland's six-year-old school choice program for economically disadvantaged children. The program provided scholarships for 4,000 children to attend any participating private, religious, or suburban public school of their parents' choice. A three-judge panel from the Sixth Circuit Court ruled the voucher program unconstitutional (2-1) on grounds that it violated the First Amendment's prohibition of an establishment of religion. The majority opinion concluded that since most of the schools participating were, in their words, "sectarian," and could not separate their religious and educational missions, such a program could not be funded by public dollars.
The Court's decision does not reflect government neutrality or evenhandedness towards religious institutions. It should be overturned for several reasons. First, the Cleveland voucher program meets the establishment clause tests applied by the Supreme Court in their most recent decisions. A string of cases since the 1980s have established that the government does not advance or establish religion should recipients of government funds decide to spend those dollars at religious institutions. Students have used government Pell grants at religious colleges (and even seminaries) for decades. When parents choose between "faith-based" or "secular" schools for their children, parents, not government, direct the dollars. Government simply fulfills a public purpose: providing schooling for children. It does not endorse the religious mission or worldview of any school, whether "religious" or "secular."
Another factor courts typically consider is whether the program fosters an "excessive entanglement" between church and state. In this case, public dollars first went into "parental pockets and purses" before reaching any school. The claim that the program unifies church and state simply does not stand.
Furthermore, there is no evidence that government favored any faith with preferential treatment. Any student could participate if his or her family's income was below 200 percent of the federal poverty level. The statute explicitly forbade the imposition of religious tests in admitting students. Also, schools of all religious affiliations and other public schools were eligible to take part in the program.
No, the real religious establishment lies elsewhere. It lies in the reasoning used by the Sixth Circuit Court to deny educational freedom and religious liberty to those parents in Ohio who want their children to be able to attend religious schools.
In its analysis, the Court defines religion as a "sectarian" matter. It presumes, like many Americans do, that religion is essentially a private affair. Religious schools are, after all, "private schools." But this view of religion is not shared by all Americans. We do not all share the same religion, nor a common understanding of what counts as religion or even how to define it. For many parents in Cleveland, religion is not a private matter, but a way of life that embraces public matters, such as schooling.
In granting its particular definition of religion official sanction in the law, the Sixth Circuit Court imposes a religious establishment that should not be tolerated. To truly respect the Establishment Clause, government should not privilege any view of religion. In this case, it should uphold the Cleveland example and neither include nor exclude schools based on their religious character. Otherwise its decisions will necessarily be divisive and "sectarian," like the majority opinion. Until then, the religious establishment in America continues.
—Stephen Lazarus, Senior Research Associate
Center for Public Justice
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”