Two court decisions concerning religion have once again set off a firestorm of debate over the Establishment Clause of the Constitution. For a society that is so overwhelmingly religious, as much now as ever before in American history, we seem to have grave difficulties reaching a balanced view of the relationship between faith and public life.
The first decision was the Supreme Court's ruling that it does not violate the First Amendment for parents to use school vouchers to send children to religious schools. The second decision, by the Ninth Circuit Court of Appeals, concluded that the “one nation, under God” clause in the Pledge of Allegiance is unconstitutional, before quickly staying its own ruling.
Those who would immediately dismiss either decision need to think again. In the voucher case, the court points out that when the state grants a voucher to a child to attend school, the state is directing money to the child, not a religious institution as such. There are myriad uses for the voucher. The child can stay in public school. The parents may decide to send the child to a non-sectarian private school. Or the parents can select from a huge range of religious schools.
Wherever the money ends up, the court majority argued, it is the parents and the child who make the decision, not the state. In no sense, then, can it be said that the state is displaying favoritism toward any particular religion or even religion in general. The argument is so obviously correct, one wonders why there was such controversy over it. But of course, we know why: Very powerful interest groups, heavily invested in the existing educational structure, are anxious to stop voucher-related educational reforms.
As for the second decision, we are talking about public schools alone. Since 1954, when the words “under God” were added to the Pledge of Allegiance (which itself was only written in 1892), schoolchildren have stood before the U.S. flag and recited these words in a display of civic loyalty, with slight theological overtones. Of course, a child raised in a non-religious home is free to stay silent for the phrase “under God,” but as with prayer in schools, schools have long held that group activities such as these compel children in subtle ways. The claim that this violates First Amendment freedoms is not completely absurd, given the court precedent. Schools are public institutions – owned, operated, and paid for directly with tax dollars – so anything that public schools do that touches on religion raises First Amendment issues.
It's not that those who strongly object to the court's decision believe that retaining the words “under God” in the Pledge saves souls or is somehow essential to keeping this nation godly. Rather, the decision seems to represent the reductio ad absurdum of a long-running trend in a court system that has been gunning for religion for a very long time, in the context of a political culture that doesn't seem to take seriously the concerns of religious parents.
Another major bone of contention has been the overall forced secularization of public schools, such that religion is not permitted to be part of the curriculum in any way, or, rather, the perception that public schools must be de facto atheistic in order to comply with the civil code. Even extracurricular activities that take place after school become magnets for lawsuits if they introduce prayers and acknowledge faith in any way.
In addition, an anti-religious bias is evident in our national political culture. Many criticize President Bush for invoking God or faith in his public pronouncements – never mind that every president back to Washington, including Jefferson, author of the famous "separation" line, has done so. Others have likened religious conservatives to the Taliban. For too long, the received wisdom of the secular cognoscenti has been that the separation of church and state really means a separation of religion and society.
This is where the Supreme Court's voucher decision points the way to resolution. In letting parents make choices concerning the faith content of their child's education, the problem of how and when to pray or acknowledge God falls to the parents and the schools themselves. The state does not have to be involved in any way, and so the conflict and acrimony that has accompanied the relationship between education and religion vanishes.
What needs to change here is the notion that schools are essentially governmental utilities in need of regulation, rather than fundamental institutions of civil society. While government needs to be neutral toward religion, citizens need not be. In allowing parents to choose a school – any school, religious or otherwise – the Supreme Court has recognized the reality that in civil society, the first consideration of most parents is not an abstract deliberation of church and state, but something far more pragmatic: Where can I get the best education for my child?
Parents who choose to send their children to religious schools have been penalized for doing so in having to pay twice for their child's education: once in the form of school taxes and a second time in the tuition they pay to the religious schools themselves.
American culture is, and always has been, de facto, a religious culture. The entire concept of our laws and institutions emerged from religious reflection, and to this day, the vast majority of Americans claim belief in God. An integral part of society is the fact that this faith moves people to make choices.
It may well be the case that school vouchers are not the best possible way to solve this dilemma, especially if it opens the doors to governmental regulation of religious schools. But it strikes me as at least a step in the right direction – toward an educational system that makes no law respecting an establishment of religion, but also does not prohibit the free exercise thereof.