How Does the Constitution Protect Religious Freedom?

By Robert A. Goldwin; Art Kaufman | Go to book overview

nondenominational. Symbolism, chaplains, religiously tinged patriotic observances will surely continue to be sanctioned; pervasively intrusive activities with heavy religious overtones will not. The large majority of America's citizenry will go along. The battle will be joined, however, at the all but certain attempts to broaden and indeed to generalize financial assistance to nonpublic primary and secondary schools, that is, parochial schools, going well beyond the already extant, often indirect, financial aid. Whether in the form of vouchers, tax relief, aid to students, or aid to their parents, it will engender a firestorm of controversy. On that issue many who, like me, consider themselves quasi-centrist or "reasonable" on the church-state imbroglio will draw the line: whatever the future may hold, as a supporter of the spirit of the basic Jeffersonian-Madisonian imperative of separation, I prefer to take my stand with Justice Wiley B. Rutledge's ardent dissenting opinion in the 1947 New Jersey bus case, in which he warned: "Like St. Paul's freedom, religious liberty with a great price must be bought. And for those who exercise it most fully, by insisting upon religious education for their children mixed with secular, by the terms of our Constitution the price is greater than for others." 92 It is, I submit, a price tag well worth paying for the hallowed imperative of liberty.


Notes
1.
J. Abraham, Freedom and the Court: Civil Rights and Liberties in the United States ( New York: Oxford University Press, 1967); now entering its 5th edition.
2.
Ibid., fri. 1, p. 172 (fn. 1, p. 220, in 4th ed.).
3.
Zorach v. Clauson, 343 U.S. 306, at 313.
5.
Albert R. Papa, Auxiliary Services to Religious Elementary and Secondary Schools: The State of State Aid ( Washington, D.C.: Americans United for the Separation of Church and State, 1982), pp. 10-11.
8.
For example, National Labor Relations Board v. City of Chicago, 440 U.S. 490. (It ought to be noted that the Court ducked the constitutional issue here, however.)
9.
See Henry J. Abraham, "The Status of the First Amendment's Religious Clauses:"Some Reflections on Lines and Limits, Journal of Church and State, vol. 22, no. 2 ( 1980), on which some aspects of this essay rely heavily.
10.
Cantwell v. Connecticut, 310 U.S. 196.
12.
Bowen v. Roy, 54 LW 4603 ( 1986).
13.
Jensen v. Quaring, 53 LW 4787 ( 1985). But cf. the 1979 holding in Johnson v..Motor Vehicles Division, 444 U.S. 885.

-39-

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