Church-State Relationships in America

By Gerard V. Bradley | Go to book overview

and collected for the twin purposes of paying clergymen and for building and maintaining churches. The effect would have been to place a clergyman on the government payroll in his sacerdotal and ecclesiastical capacities and to fund the system by direct coercion of individuals. It is nothing like any of the modern private school aid programs, which are conceptually closest to the general assessment but which operate much more indirectly to underwrite "secular" educational functions in religious schools. As Morgan rightly points out, given the amounts, involved these days for particular taxpayers, "only a conscience of prodigious preciosity could be seriously offended." 85

Another flaw is the Court's use of the general assessment as a surrogate for no aid, as if one could not oppose the general assessment without being opposed to all support of religion. While Jefferson's and Madison's opposition may have stemmed from such sweeping principles (and it probably did not), no one else's did. Worse, Everson's excessive focus on an outmoded species of financial support is conducive to a definition of establishment that is at once too narrow and too broad--too narrow in that even careful scholars like Leo Pfeffer and Leonard Levy have succumbed to the temptation of making it a necessary condition of an establishment. Where there was a general assessment, Levy and Pfeffer conclude, there was an establishment, 86 ignoring that there are many other material and nonmaterial ways to support religion besides imposing a general assessment. Levy, for instance, labeled New Hampshire, Massachusetts, Connecticut, Georgia, Maryland, and South Carolina as establishment states simply because their laws authorized the kind of support eschewed in Virginia. 87 Yet each of the thirteen original states generously aided and promoted religion and should therefore, according to Levy's methodology, be called establishment regimes. Further, this narrow focus ignores that even a state hostile to general assessments, like Virginia, was establishmentarian in that it found alternative ways to prefer a single sect--Anglicanism--to all others.

Levy succumbs to the broadening temptation of Everson as well. Committed to Everson's view that an assessment denotes an establishment, even if generally available and thus sect impartial, he is obliged to invent the term multiple establishment to describe the post-Revolutionary era of nondiscriminatory assistance to all Protestant sects." 88 The term multiple establishment does not occur at all in the historical materials, and it could not. Since establishment meant sect preference, eliminating the preference eliminated, not multiplied, the establishment. Multiple establishment is historically an oxymoron; its modern equivalent is nondiscriminatory preference. This derailment, then, represents the elevation of general assessment into both a necessary and a sufficient condition of an establishment. Whatever the emotive appeal such an elevation possesses for modern political warriors, it is thoroughly ahistorical, a simple projection of the present onto the past.


NOTES
1.
A. Sutherland, "Establishment According to Engel," 76 Harv. L. Rev. 25, 31 ( 1962).

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