Cracks Form in the Wall of Separation

As Rules Change About the Church-State Divide, the Community Needs To Reevaluate

By Marc Stern

Published November 14, 2003, issue of November 14, 2003.
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A revolution is underway in church-state relations, and the Jewish community has yet to grapple forthrightly with it.

In earlier years, the constitutional rule in regard to the disbursement of public money to religious institutions was simple: Aid that gave a substantial benefit to institutions teaching religion was impermissible. By contrast, the current legal regime — as reflected by a narrow 5-to-4 majority on the Supreme Court in last year’s voucher case Zelman v. Simmons-Harris — holds that the same aid is permissible if it is distributed through a religiously neutral scheme. By a “religiously neutral scheme,” the court means that government money flows to a religious institution if it was a result of the unfettered choice of individuals, such as through a voucher program or per-capita funding. It may be, however, that more traditional, direct grant-in-aid programs also will be upheld under this theory so long as religious and secular institutions compete for grants on equal terms.

Some in the Jewish community are in denial, and assert that no government aid to religious institutions is, or ought to be, permissible. Others, who for ideological or practical reasons have long supported aid to religious institutions, have been so busy celebrating their vindication at the expense of despised “strict separationists” that they have failed to observe various threats to Jews, Jewish institutions and religious liberty posed by, and already visible in, the new constitutional order. Still others see nothing beyond the possibility of additional dollars flowing to their institutions and think not at all about what any such additional funding and the manner in which it is distributed means for the Jewish and larger American community.

Self-denial concerning the operative legal facts is not a luxury the Jewish community can afford. It is time to rethink where we are, where we want to be and how we should respond to current and likely future realities. We can and must do better than reflexive, unthinking responses.

The need for reevaluation may soon be even more urgent. The Supreme Court will soon hear Locke v. Davey, a case in which the issue is whether states retain any discretion to continue the older, more restrictive view of subsidies to religious institutions. In Locke, state college scholarship aid in Washington was made available for students of all disciplines but theology.

The state of Washington concedes that the U.S. Constitution would not be violated by awarding scholarships to theology students. It insists, however, that its state constitution prohibits awarding such scholarships. The theology student challenging the policy replies that the state rule impermissibly discriminates against religion.

Jewish organizations that traditionally have opposed government financial assistance to religious organizations have filed friend-of-the-court briefs supporting the state’s position. The Supreme Court, however, is thought likely to rule against the state, thereby strengthening the trend toward expanding the scope of government aid reaching religious institutions. If that happens, the constitutional rule will be, either aid is forbidden by the Constitution — a small class of cases — or it is required, in most cases, by the Constitution to be extended on equal terms to eligible secular and religious recipients.

There are obvious advantages to accepting the new constitutional approach and exploiting it. It will allow strapped Jewish religious institutions to take advantage of government resources to further their communal purposes. These include day schools, but are not limited to them.

The new rule would permit landmarked synagogues, for example, to accept aid to help maintain their aging buildings. It would also allow Jewish social agencies dependent on government aid to be more openly Jewish in their identification than they have been until now, having feared in the past, correctly, that a more sectarian operation would be ineligible for government funds.

It is no longer clear that the community alone can bear the burden of supporting visibly Jewish educational, communal and social welfare institutions. Could it be that turning down government funds has become a pointless gesture, motivated by a vision of church-state relations that no longer has constitutional or social validity?

Such a change would not be an admission that the Jewish community had been following a failed or misguided policy in insisting on a no-aid vision of church-state relations. First, the change would merely recognize a set of decisions already made by the Supreme Court. Second, the strict-separationist policy was adopted under different social conditions, at a time when there was a Protestant hegemony and Catholic schools were teaching doctrines pernicious to Jewish well-being.

Social and theological changes of great import have taken place during the last two generations. Together with these changes, more

than a half-century of litigation has transformed the nation. It has brought us to the point at which real neutrality — as opposed to the coercive religious majoritarianism advocated by opponents of separation through much of the last half century — may now be an acceptable substitute, provided that coercion remains only a theoretical fear.

Perhaps, after considered examination, the community will conclude that the changes in law made by the Supreme Court are not yet deeply rooted, and that concessions in the direction of the new legal regime are not called for at present. If the Democrats should capture the White House in 2004, and if a Democratic president makes several Supreme Court appointments, the law might revert to an older separationist position. Perhaps, too, it will be concluded that the principle of separation is too important to abandon even for financial gain. Perhaps, too, the fear of religious coercion or favoritism reflects reality.

There are many “ifs” to the “hold until 2004” scenario. Not the least is that the new mode of neutrality is not as unpopular as one might think. Many academics, including some with impeccable liberal credentials, support aid to religious institutions under neutral statutory schemes, primarily because they believe it will allow religious institutions to serve the poor, but also because they find the idea of equal treatment of religious and secular institutions appealing.

On the other hand, if the new rule is to be accepted, there are risks to be considered beyond those inherent in the abandonment of a principle that many in the Jewish community accept as axiomatic. Does the neutrality rule apply only when every citizen or institution that applies and is otherwise qualified — a college student or an accredited school, for example — is automatically entitled to a fixed amount of aid? Or, by contrast, is it sufficient if a program allows religious and secular institutions to compete equally for funds, even if government officials exercise discretion as to which ones will actually receive funds and for what purposes?

Justice Clarence Thomas, a leading proponent of the new constitutional order, has written that the latter regime leaves open the real possibility that more settled and powerful religious groups will receive a disproportionate share of the funds. It makes perfect practical sense, after all, for government to direct aid to those groups most likely to be acceptable to the largest sector of the population. That usually will not be a Jewish institution.

It is true that Jewish institutions are, for now, better equipped to apply for and receive grants than many smaller competitive institutions. But as the Jewish proportion of the population declines, perhaps that success cannot reliably be counted on, especially as there is a concerted push to broaden the base of participating agencies. There already are troubling indications that the new regime is leading to a de facto preference for larger faith groups, leaving Jews at a disadvantage. This disadvantage will worsen if the total amount of funds remains stable, as it has, and the number of groups competing for aid increases, as it will.

Also crucial is the question of what conditions will accompany funds, whether they take the form of direct grants or vouchers. The Cleveland school voucher plan upheld by the United States Supreme Court bars participating schools from discriminating on the basis of religion in admissions; Milwaukee’s school voucher plan requires participating religious schools to offer only optional religious classes.

Are these acceptable conditions? Are they worth the money?

Advocates of vouchers, as opposed to direct grants, often have pointed to Europe for proof that one can simultaneously enjoy government subsidies and religious freedom. France, an example of that model, is now using the power of the purse to regulate the religious curriculum of state-subsidized religious schools. Is that a model the American Jewish community should follow? If not, can we reliably insist on another one?

The most common contested conditions deal with nondiscrimination in employment. Jewish and non-Jewish opponents of President Bush’s faith-based initiative have emphasized the possibility that, under the president’s program, Christian institutions will refuse to hire Jews even though they accept tax funds. It is undoubtedly true that some will do so. There is already litigation in at least one such case and that challenge is endorsed by leaders of the local Jewish federation.

That federation is apparently oblivious to the fact that it, and many, if not all, of its beneficiaries practice exactly the same discrimination. Indeed, they would not be recognizably Jewish if they did not. It will not do, parenthetically, to protest that Jewish organizations do not discriminate in employment. Fairy tales are for children, not adults making critical decisions.

To be sure, some Christian organizations engage in across-the-board employment discrimination, and, by and large, Jewish organizations do so only on a limited basis. If the point is that no discrimination is acceptable with government funds, the difference in degree is irrelevant. Which, then, is more important — the right of individual Jews to seek employment anywhere or the right of Jewish communal institutions to engage in religious discrimination to protect their Jewish identity?

How real is the fear that lowering the barriers against government aid will inevitably entangle religious groups in the political process in ways that are harmful to the religious toleration American Jews depend on? Is it too early in the “new order” to reject this possibility, which is certainly real enough in other countries where government subsidizes religion?

What happens to Jews who have no access to a Jewish social services program — that is, to the increasing number of Jews who live in smaller communities, for whom the only government program available is a non-Jewish religious one? Introducing his faith-based initiative, Bush insisted that no one would be forced to attend a religious program, secular alternatives would always be available and no one would ever be forced to participate in unwanted religious observances.

Unfortunately, as federal agencies have issued regulations to implement the president’s initiatives, they have repeatedly refused to acknowledge these safeguards. Several states have complained that requiring such alternatives is burdensome and should not be required.

Under regulations recently promulgated by the Department of Housing and Urban Development, and in a Department of Labor solicitation of proposals for grants, it appears that beneficiaries could be forced to participate passively in religious activities — for example, by listening to a sermon or prayer. No provision is made in either document for a secular alternative. Despite pointed objections by the American Jewish Congress to high-level administration officials, nothing has been done to curtail these departures from the president’s plan — no doubt because some of the president’s evangelical supporters would object. If this is the inevitable result of the new constitutional regime, is it one with which Jews can live?

These are only some of the questions which need to be asked. The answers are not always simple, and require consideration of differing religious and political perspectives, as well as the differing perspectives of larger and smaller Jewish communities, secular and religious Jews, philanthropists and program beneficiaries. Those grappling with these questions need also to consider the effects, if any, of the new doctrine on other religious liberty issues including prayers in the schools and religious accommodation.

The AJCongress did not welcome the new regime with open arms. Nevertheless, the question now before the community is whether the time has come to accept the current Supreme Court’s interpretation of the religion clause of the Constitution. Neither blind adherence to the past nor thoughtless adulation of the Supreme Court is a viable course for the Jewish community. Now is the time for an honest, informed and searching debate.






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