Commentary The Decisions AreMisguided and Unjust
The U.S. Supreme Court has ruled by 5-to-4 margins that public-school systems in Grand Rapids, Mich., and New York City violated the establishment clause of the First Amendment by sending teachers into parochial schools to offer remedial and enrichment classes. Secretary of Education William J. Bennett has said the rulings reflect "a hostility toward religion." Perhaps. My judgment is that the decisions--in Grand Rapids v. Ball and Aguilar v. Felton--are legally misguided and unjust, representing the logical conclusion to four decades of the Court's misinterpretations of the First Amendment's religion clauses.
By now, many Americans assume that the phrase "wall of separation between church and state" is found in the Constitution. It isn't. It comes from a private letter sent by Thomas Jefferson to the Danbury, Conn., Baptist Association in 1802. As the legal historian Robert L. Cord of Northeastern University argues, the First Amendment was intended only to bar the federal government from preferring one religious denomination over others by establishing a national church, not to create a "wall" between church and state. In Separation of Church and State, he cites numerous examples of fed-eral aid to religion during the nation's early years, including grants to build churches and support for missionary teachers. It is also clear that some states still maintained tax-supported churches even after the ratification of the Constitution. Massachusetts, for example, had an official state denomination until 1833.
Most Americans today would probably not welcome such government support for particular religious beliefs. And yet it is clear--if we can trust the results of numerous polls--that the great majority of Americans favor some form of prayer in the public schools. And many question how the First Amendment's prohibition of religious establishment justifies the Court's recent decisions forbidding public-school teachers to offer secular classes in parochial schools.
The answer lies in the Justices' assumption that reality can be divided into two neat realms: the religious and the secular. To be sure, it is possible to distinguish a communion service or a bar mitzvah from repairing a car or teaching nuclear physics. But insofar as various secular beliefs give meaning and purpose to life, they function in the lives of atheists and agnostics in much the same way religious beliefs function in the lives of believers.
John Dewey certainly understood this point. He thought of his secular and atheistic beliefs as "a religious faith," one that he wanted to make "explicit and militant." Until after World War II, atheistic humanists commonly referred to their secular beliefs as "religious." Only after the Supreme Court began to push religion out of public education did atheistic humanists begin to shy away from such terminology.
In fact, in its own rulings on the free-exercise clause of the First Amendment, the Court has acknowledged that secular beliefs can function much like religious beliefs. In both Seeger v. United States (1965) and Welsh v. United States (1970), the Court interpreted the free-exercise clause to mean that atheists and agnostics could be legitimate conscientious objectors based on their strongly and consistently held secular beliefs. At least in these cases, the Court has said secular and religious beliefs are legally equivalent.
In 1961, in Torcasso v. Watkins, the Court struck down Maryland's requirement that officeholders declare belief in the existence of God. The Justices distinguished between "those religions based on a belief in the existence of God as against those religions founded on different beliefs." In a footnote, the Court cited "Secular Humanism" as one type of "different belief."
What bothers many thoughtful Catholics and Protestant evangelicals is that the Court accepts a broad definition of religion in free-exercise cases but not in establishment-clauseichard A. Baer Jr. teaches in the department of natural resources and is a member of the graduate field of education at Cornell University in Ithaca, N.Y. cases. Indeed, if the Court were more consistent and accepted a broad definition in both instances, then it would make sense to argue--as some critics do--that the public schools themselves constitute a government-sponsored establishment of religion--namely, the religion of secularism. Liberal critics typically dismiss such a claim as religious fanaticism. Thus, when Catholics request aid for parochial schools, the critics see this not as a demand for equity but as an unprincipled sectarian raid on the public treasury.
The clear logic of Seeger, Welsh, and Torcasso should lead the Justices to extend the meaning of the First Amendment in two ways. First, they should forbid the state to establish as orthodox any set of beliefs--whether religious or secular. Second, they should require the state to protect the free expression of any belief--religious or secular--about the nature or ultimate reality and purpose of life. In freedom-of-speech cases, but not yet in its rulings on education, the Court has consistently interpreted the First Amendment to say that the state is incompetent to judge such matters.
The roots of the Court's confused rulings on school prayer and aid to parochial schools are deep. James Skillen, director of the Washington-based Association for Public Justice, insists we must go back at least as far as Jefferson if we are to understand how these views were formed. Jefferson believed that his own deistic and Enlighten-ment morality was nonsectarian. It was, he claimed, based on reason and was therefore universal. By contrast, he considered orthodox Christians, adhering as they did to a faith rooted in dogma and revelation, to be parochial and sectarian.
Jefferson's convictions would have been harmless if he had not also insisted that his beliefs--and not the "sectarian" beliefs of traditional Christians--ought to guide the public life of the new nation. The sectarians, Jefferson thought, should practice their religion in their homes and churches, and not intrude their beliefs and values into the public life of the nation. Thus Jefferson's commitment to religious freedom was limited.
Jefferson's position is more self-serving than self-evident. His Enlightenment faith was just that--a faith commitment, a metaphysical and religious world view that was no more obviously based on reason than the beliefs of Christians were.
In our day, this distinction between sectarian and nonsectarian religion is more commonly debated as the conflict between the religious and the secular. As did Jefferson, many people--including Justices of the Supreme Court--wrongly assume the secular to be nonsectarian and "universal." Thus, in dealing with the establishment clause, the Court has accepted a very narrow definition of religion, one that sharply contrasts the religious and the secular.
The Court apparently does not understand that secular beliefs and values can also be biased and sectarian. The Court therefore assumes it is possible to design a secular public-school curriculum that is re-ligiously neutral. And while ruling that state support of parochial schools constitutes an establishment of religion, it simultaneously assumes that the curricula of public schools--if sufficiently sanitized and purified of overt religious speech and practices--do not violate the establishment clause and thus legitimately can be supported by government money.
Such assumptions are wrong. To be sure, public schools can be neutral toward religion in the limited sense that they do not give an unfair advantage to one religious group over another--say, Baptists over Catholics or Jews. Achieving such neutrality has been a significant accomplishment. But unless one accepts Jefferson's mistaken distinction between sectarian and nonsectarian morality and religion, it is hard to see how any purely secular curriculum could be neutral toward religion.
This is because every curriculum, unless it is purely random and arbitrary, necessarily presupposes certain views about the nature of human beings and the purpose of life. This can be seen most easily in such fringe curricular areas as sex education and values clarification, in which authors of manuals and textbooks often posit the view that the purpose of life is the individual's self-fulfillment and happiness. Unfortunately, such an assumption directly contradicts the belief of Jews and Christians that human beings should seek to love God and to give themselves to the service of others.
Even in choosing the subject areas of a curriculum, it is impossible to achieve religious neutrality. When a school stressesmathematics and science over art, music, or the Bible, it is making a statement about the meaning and purpose of life. Over the past two decades, astute critics have documented in detail the claim that the public schools often give a state-sponsored advantage to secular values while placing the values of Christians and Jews at a disadvantage.
What Catholics have claimed for over 150 years is that since every school is biased or sectarian in its basic world view and values, then there is no good reason why the Court should permit tax money to go to public but not private schools. To do so involves the state in unfair and even unconstitutional preference for one set of religious values over legitimate competitors. Certainly the authors of the First Amendment did not intend to give atheistic, secular, and humanistic beliefs a government-maintained advantage over theistic beliefs.
In Compelling Belief, Stephen Arons describes our present system of school finance as one that "provides free choice for the rich and compulsory socialization for everyone else." Extending financial support to all legitimate secular and religious schools, whether directly or through some kind of voucher system, would bring an end to the unfair monopoly that state-run public schools currently enjoy as the only lawful recipients of across-the-board support from tax revenues.
Such a move would not grant special privilege to religious or secular private schools, but would instead redress the injustice and dubious constitutional validity of the present system.