By Byrne, Harry J.
Commonweal , Vol. 128, No. 3
Choice has become a key word in public opinion, politics, and the nation's jurisprudence. But parents have been limited by their economic status in choosing the kind of education they want for their children. The affluent can afford the high tuition for private schools and the more moderate tuition for parochial schools. Low-income families are constrained to accept the public education system with its state-mandated system of values. The situation is different in all of Western Europe and Canada, where substantial government subsidies ensure the freedom of parents to choose a religious school. In our nation, the U.S. Supreme Court has long been challenged to strike a balance between the religion clauses of our First Amendment--"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Can unemployment benefits be denied a Seventh Day Adventist discharged for refusing to work on Saturdays? Can creches and menorahs be placed on government property? Can a prayer be offered before public school graduations or football games? What secular benefits may government provide to students in parochial schools? It is in this latter area that the Supreme Court has been frequently challenged to decide whether a practice constitutes "an establishment of religion" or its appropriate "free exercise."
The jurisprudence of our nation's high court has developed with many twists and turns from a twofold bedrock principle it established in 1947 in upholding state-provided bus transportation to children attending parochial schools: "No government can pass laws which aid one religion or all religions" and "State benefits provided to all citizens without regard to religion are constitutional." As state and local governments attempted to provide secular benefits in fairness to parents of children attending parochial schools, extreme church-state "separationists" were quick to lodge court challenges. Providing secular textbooks was approved by the Supreme Court; payments for school maintenance and for the salaries of teachers of secular subjects were struck down. Building on its 1947 decision and other precedents, the Court in 1971 (Lemon v. Kurtzman) established a threefold test for the constitutionality of public funding of religious institutions: Such monies must serve "a secular legislative purpose," have "a primary effect that neither advances nor inhibits religion," and entail "no excessive government entanglement with religion."
In 1975 (Meek v. Pittenger) and again in 1977 (Wolman v. Walter) the Court established a further principle: "books for kids in religious schools, yes; tape recorders and projectors, no." The secular nature of a book could be readily determined and thus permitted, but equipment could be diverted to religious use and thus was prohibited. A plethora of decisions followed, striking down aid programs that did not lend themselves to this easy application. An absolutizing of the establishment clause at the expense of the free-exercise clause seems to have occurred. It was as if the Court treated religion like potential cyanide in the public water supply. In dissenting from a 1985 decision (Aguilar v. Felton), Chief Justice Warren E. Burger wrote that the Court manifested "hostility toward religion and the children who attend church-sponsored schools." Similar sentiments have been expressed by justices in other cases.
In the 1985 Aguilar decision, Justice Sandra Day O'Connor, also writing in dissent, questioned "the utility of entanglement as a separate establishment standard in most cases." In the same case, Justice William H. Rehnquist referred to "entanglement" as a Catch-22 paradox since "aid must be supervised to ensure no entanglement but the supervision itself is held to cause an entanglement." In its tortuous efforts to distinguish between "forbidden religious aid and lawful secular benefit," the Court's evolving incoherence and uncertainty came to be recognized by its own members. …