Against Religious Liberty
by John M. Swomley
from his book "Religious Liberty and the Secular State: The Constitutional Context"
A careful examination of the history of religious liberty in the United States reveals at least three important conclusions: (1) The founders of the American republic took a revolutionary step in establishing separation of church and state based on a completely secular state; (2) separation of church and state had the overwhelming support of church members and nonmembers alike; and (3) the framers of the Constitution did not foresee all the implications of the new "separation" doctrine and faced them chiefly when they became serious problems. The result over the years of the republic has been a continuing revolution of enormous benefit both to religious groups and to the republic itself. That revolution extended the idea of separation of church and state to education, to the conduct of the separate states, and to various other aspects of our culture.
Since almost every revolution in history has had its counter-revolution, it is not surprising that there are powerful vested interests among some religious groups in the United States that want to limit or nullify separation of church and state even while paying lip service to it as an idea.
Among the counter-revolutionary efforts are the following, most of which are products of the fourth quarter of the twentieth century:
(1) Scientific Creationism. An effort has been made by certain creationist societies to persuade state legislatures to require that public schools teach science "within the framework of Biblical creationism." Evolution, which is currently taught in the schools, was not mandated by legislatures or school boards. It is taught because the scientific community in its various branches, such as biology, geology, paleontology, and astronomy, is virtually unanimous in embracing it. The reason fundamentalist groups want legislatures to declare that creationism is science is their inability to persuade the scientific community that it has anything to do with science.
Judge William R. Overton in the Federal District Court in Arkansas in 1982 stated in his opinion: "The creationists' methods do not take data, weigh it against the opposing scientific data, and thereafter reach the conclusions stated.... Instead they take the literal wording of the Book of Genesis and attempt to find scientific support for it.
(2) Prayer Services in the Public Schools. Voluntary, individual, silent prayer has never been banned or discouraged in the public schools. The Supreme Court has banned state-sponsored religious services. Those who advocate prayer services in the public schools do not want voluntary prayer. They want the government to be officially involved in promoting and sponsoring prayer services so as to put pressure on children to engage in public prayer. They apparently do not care whether parents want their children to engage in public prayer or be indoctrinated with sectarian religious ideas. The object is to provide a captive classroom audience that will be exposed to the prayers of those with a religious message, which they deliver in the form of a prayer.
A professor of law at St. Louis University, Charles Blackmar, wrote me in 1981:
The constitutional issue seems clear. The state is capturing students by the use of the compulsory attendance law, and is forcing them to listen to religious exercises. The only alternative offered is that of the conspicuous exit, which is a kind of coerced expression of non-belief in what is being offered.
The option of a "conspicuous exit. is the basis for its advocates calling it a voluntary proposal.
Prayer is an emotional and divisive issue. The December 5, 1982, Sunday Oklahoman reported that two women who were church members and parents of public school children had opposed participation of their children in "voluntary" prayer services in their local junior high school and had received "death threats because of their stance on this issue." One of them was physically attacked by a school employee who was a proponent of prayer. One woman had received anonymous phone calls threatening to burn down the mobile home in which her family lived. It was subsequently burned to the ground.
The public school is not the agency to teach children to pray or to hold religious services. If parents will not teach religious values at home or send their children to churches or other institutions for their religious education, they and we ought not to permit the public school to become the religious substitute for the home and the church. There are also many parents who do not want the public school interfering with their children's faith by providing a different kind of religious emphasis or worship practice in school.
(3) Silent Prayer in Public Schools. When initial efforts failed to get enough votes in Congress for a constitutional amendment on prayer, federal officials urged Congress to require silent prayer at the beginning of every school day.
Gary L Bauer, Deputy Under Secretary of the Department of Education, in a letter that appeared in the April 9, 1983, New York Times attacked opponents of school prayer and recommended at least "a moment of silence as an opening ceremony for the elementary and secondary school day....
A government-sponsored opening ceremony that promotes religion is not acceptable. The government ought not to have the power to tell children when to pray, how to pray, or to interrupt their prayer after a cursory one minute. Gary Bauer's position, and presumably that of the U.S. Department of Education, since he did not indicate it was merely his personal position, is that "the ceremony, consisting only of silence and lasting for just one minute," is not "offensive to anyone." Government officials may prefer religion to be inoffensive, a watered-down lowest common denominator, a kind of government ritual, but that is not genuine religion. Government sponsorship secularizes religion because the government is not a "believing community" and it does not provide the context of a religious tradition or the example of a living faith.
(4) Tuition Tax Credits. The effort to get tuition tax credits was initiated by Roman Catholic bishops as a method of getting government aid for private parochial schools. The parents were intended to become the conduit of such aid. A spokesman for a coalition of private religious schools told the House Ways and Means Committee in 1972: "The very moment we put into the pocket of the parent $200 per child, it enables him to contribute that much more to the support of his child going to a non-public school, which, ipso facto, means that the non-public school is being helped indirectly."
Father Frank H. Bredeweg of the National Catholic Educational Association, after speaking about "lower contributions to the parish, the parish responsibility to service the increasing number of Catholic children in public schools ... and other factors ... bringing about higher tuition charges and a lower share of revenue from parish and diocesan subsidies" asked for tuition tax credits.
During the 1977-78 congressional sessions, Senators Daniel Moynihan (D-N.Y.) and Robert Packwood (R-Oreg.) introduced a Tuition Tax Credit Bill that provided a tax credit of 50 percent of private elementary and secondary, college, and vocational tuition payments up to $500 per student. Senator Packwood agreed to sponsorship at the urging of Father Donald Shea, Director of the Republican National Committee's Ethnic-Catholic Division. The bill was drafted by Shea and Packwood with the assistance of Moynihan, Father Virgil Blum, Father James Burtschaell, and Father Charles Whelan. At a meeting between Shea and representatives of the Missouri Synod Lutheran Church and the U.S. Catholic Conference, those church groups insisted on a cash refund being written into the bill so that anyone owing the IRS less than the amount of the tax credit would receive the difference in cash.
One of the purposes of the bill was to reverse the Supreme Court decisions against aid to parochial schools. The National Catholic Reporter stated:
The Senators at their press conference said they believe the Supreme Court will take "another look. at the doctrine that no law can aid one religion, all religions, or one religion over another. Bill supporters say privately that the hoped-for support for the bill will have its effect. The members of the court read the newspapers, one said.
(5) U.S. Catholic Conference Brief in Mueller v. Allen. This brief, which was mentioned in Chapters II and III, put the U.S. Catholic bishops clearly on record as opposing the American concept of separation of church and state on matters having to do with aid for Roman Catholic institutions. It was a direct assault on previous Supreme Court cases that denied aid to Roman Catholic parochial schools. This is not an indication that Roman Catholics in general oppose separation of church and state. In fact, there is every indication that they do not follow the bishops' leadership in seeking to reinterpret or destroy the "establishment" clause of the First Amendment. The bishops, who are administratively responsible for raising the money to pay for the various institutions, such as parochial schools, that characterize the mission of the church, apparently believe it is preferable to finance such institutions by taxing all of the people than by increasing the giving of their own members.
(6) The Adolescent Family Life Act. The Roman Catholic bishops have been successful in getting government funding of Catholic doctrine on contraception and abortion in various sex education programs in Catholic hospitals and other church facilities. The Adolescent Family Life Act (AFLA), adopted in 1981 with the backing of the bishops, is promoting periodic abstinence from sex as the only means of birth control approved by the Vatican and is "discouraging teenagers from using other methods of contraception, often by presenting a distorted account of the safety of those methods."
"The law requires grant recipients to involve religious organizations in their programs, and it encourages religious groups to become grantees. At the same time, the AFLA prohibits the distribution of funds to groups that provide any abortion-related services, including counseling and referral or that subcontract with any agency that provides such services." As a result, the law effectively discriminates in favor of aid to Roman Catholic institutions and against most major religious organizations that do not accept Roman Catholic doctrine on abortion. The act itself, by providing for grants to any religious organization, is a violation of the letter and spirit of the federal Constitution. The result is that millions of dollars are available for Roman Catholic institutions.
In the Mueller v. Allen amicus brief, the Roman Catholic bishops used the device of claiming that the Establishment Clause was opposed to preferential aid to religion, but not against non-preferential aid. In the AFLA, the bishops demonstrated their ability to draft a law that provides preferential aid to Catholic institutions.
(7) Education Vouchers. Education vouchers are government-funded tuition payments that Secretary of Education William J. Bennett proposed in 1985 at a meeting of the Knights of Columbus in Washington, D.C. The vouchers would be issued to parents of economically and educationally disadvantaged children (about five million in 1985) to attend parochial or other private day schools. It is not a substitute for or alternative to tuition tax credits, but an additional form of aid to religious day schools.
The Equity and Choice Bill of 1985, which was intended to implement Bennett's voucher proposal, would require public schools that receive Chapter I funds from the federal government to continue to finance special help or compensatory services to children who are "educationally deprived" or "disadvantaged." However, parochial schools and any other private schools that accept the vouchers would not be required to offer compensatory education services. The vouchers may simply be used to offset tuition.
Under this proposal, the local public education agency would be responsible for setting up an administrative bureaucracy to educate the people of the community about vouchers and to distribute them to parents who want to use them in religious day schools. The vouchers could be used in other public schools, but there is no need for a voucher system if parents want to keep their children in their neighborhood public school.
The voucher method, like tuition tax credits, is a method whereby the government would encourage parents to consider and to choose church schools for their children at the expense of public schools. State aid to public schools is based on the number of pupils in attendance. Government-sponsored shifts of students to church schools are intended to provide support for parochial schools while at the same time injuring public schools. The ultimate aim seems to be the privatization of education, but the stated aim is to permit poor and disadvantaged children to attend parochial and other nonpublic schools since their parents could not otherwise afford the tuition.
Nothing in voucher proposals or bills would prevent religious or other nonracial discrimination in the hiring of teachers and administrative officials or in the admission of students, thus indicating their sectarian purpose. Taxpayers would have no control over the schools they would be financing, as religious schools do not have locally elected school boards. Vouchers would institutionalize taxation without representation and return America to the prototype of the colonial era when everyone was taxed for the religious schools of the established churches.
Since many and probably most of the disadvantaged children are not members of churches that operate parochial schools, the voucher plan is also a vehicle for sending children into schools that proselytize them and in some cases their parents as the price of enrollment. It is, thus, a governmental method of religious discrimination in favor of churches that believe in privatization of education.
(8) The Equal Access Act. In 1984, Congress adopted the Equal Access Act, which allows student religious groups to operate on public secondary school premises during "non-instructional time" if the school "receives Federal financial assistance" and also "grants an offering to or opportunity for one or more non-curriculum related student groups to meet on school premise...." For example, if a school offered the opportunity to organize a chess club or a religious group that wanted to hold meetings in the school actually organized a chess club, it would open the way for religious meetings in the school. Chess is normally not a part of a school curriculum. Likewise, a political club such as the Moral Majority or the Ku Klux Klan could also meet. Or, if a political club organized first, it would make possible the organization of religious meetings in the school.
After the proposed constitutional amendment authorizing prayer in the schools failed, its proponents rallied around the Equal Access idea as a way of getting religious practices into the schools. The law was intended to allow voluntary student meetings to discuss religion as well as to hold worship services during the school day so long as the school does not officially sponsor the religious activity. The school, however, may assign teachers or other employees to supervise meetings so that "non-school persons may not direct, conduct, control or regularly attend activities of student groups." This forbids regular attendance by an outsider, but does not prohibit an adult religious staff or group from sending a different person each day or rotating personnel to participate in the student religious activity if the school wants to admit non-school persons. Thus, Youth for Christ ministers, Fellowship of Christian Athletes' members, and other groups could attend and participate so long as no one person was in regular attendance.
In other words, student groups and outside attenders may encourage the attendance of children in junior and senior high schools (ages 11 through 18) at religious meetings where proselytization of students may also take place. Young students would almost certainly be impressed by a school athletic star or a professional football or baseball player asked by the Fellowship of Christian Athletes to attend and to witness to his faith.
The above illustrations of the counter-revolution against separation of church and state are not always the result of a joint effort. Some are promoted by Protestant fundamentalists and evangelicals; some are promoted by the Roman Catholic bishops; and some are the joint products of both groups.
The issues that unite the Roman Catholic bishops and the fundamentalist Protestant leadership are their opposition to abortion, to contraceptive birth control, and to sex education in the public schools together with their desire to get public funding for their church schools, colleges, and other church programs. The result of this congruence of interests is an informal alliance in which fundamentalist and Roman Catholic leaders are collaborating not only to achieve mutual interests, but also publicly to assist right wing political candidates friendly to their religious beliefs.
Some writers believe that the alliance of fundamentalists, Catholic bishops, and right wing politicians is not a coincidence, but was carefully planned by the bishops and leading Catholic rightists such as William F. Buckley Jr. They cite the National Conference of Catholic Bishops' Pastoral Plan for Pro-Life Activities and its program for action in the political, legislative, educational, and ecumenical fields as the origin of the right wing Catholic drive to unite the politically unsophisticated fundamentalists behind the bishops' program.
Stephen Mumford, a population expert, has written that right wing Catholics responsive to their bishops and the Vatican volunteered to help fundamentalist leaders raise money and organize and promote the Moral Majority, Christian Voice, and the Religious Roundtable. He names leading right wing Catholic organizers and fund-raisers who work for these ultra-right fundamentalist groups. Another writer, Connie Page, confirms this, saying that Catholics Paul and Judie Brown actually organized the religious fundamentalist leadership into the overall anti-abortion movement, which is the centerpiece of the hierarchy's political leadership of right wing politics. Page quotes Paul Brown: "Jerry Falwell couldn't spell abortion five years ago."
Another writer traces the alliance to the leading right wing Catholic, William F. Buckley. "Almost to a man their leadership can be traced back to a meeting of ninety-three conservatives at the Sharon, Connecticut, estate of William F. Buckley Jr., in September of 1960."
Whatever the actual facts of the origins of this movement, it is clear that it will continue to be the driving force of the counter-revolution and will be dominated by the financial and legal strength of the Roman Catholic bishops who have everything to gain by modifying or ending the doctrine of separation of church and state. The stakes are government financing of Catholic schools and the triumph of imposing the Vatican's sexual restrictions on the American people. That triumph would lead politicians to capitulate to the bishops on almost every issue they decided was in the interest of their church, including domestic and foreign policy.
Religious groups and religious issues have increasingly played a role in politics. The New York Times of August 21, 1985, reported that the right wing "think tank," the Heritage Foundation, sponsored a discussion, "Why Conservatives Need Religious Issues in Order to Win." The leader of the discussion, who is legislative director for the Moral Majority, according to a foundation announcement "strongly believes that conservatives need a comprehensive plan with regard to economics, national security and issues of morality and religion in order to become a governing majority."
During these efforts by religious groups to win politically, little is said publicly in the way of direct attacks on separation of church and state. However, they support politically the first president who publicly demonstrates his rejection of separation of church and state. On August 6, 1984, the columnist Mary McGrory wrote about President Reagan:
Catholic issues seem to consume him.... Reagan's motivation now seems to be his inability to tolerate the "oppression of the Church" to which the Pope has attested.... John Kennedy may be smiling somewhere at the sight of an American president wrapping himself in the arms of Holy Mother Church.... By contrast, Reagan is going out of his way to show that with him there is no separation of church and state. He wants it known that there is a direct line between him and the Pope, that he seeks counsel from Vatican City.
President Reagan had said in April 1982 to the National Catholic Education Association: "I am grateful for your help in shaping American policy to reflect God's will...."
This is the first time in American history that there has been an all-out attack led by the Roman Catholic bishops, their fundamentalist Protestant counterparts, and the administration on separation of church and state. It remains to be seen whether the American principle of church-state separation will survive such a concerted effort. The Southern Baptists are divided and have capitulated to fundamentalist demands for some religious activity in the public schools. They have also accepted in essence the Roman Catholic bishops' political position on abortion. The major Protestant denominations have been effectively silenced by ecumenism, falsely based on fear of offending the Catholic hierarchy. In turn, this signals the bishops and the administration that there will be no effective political resistance to their position.
The chief defense of separation of church and state is, therefore, led by the American Civil Liberties Union, Jewish organizations, the National Education Association, Americans for Religious Liberty, Americans United for Separation of Church and State, the Unitarian-Universalists, the Seventh Day Adventists, and the American people who continue to support separation of church and state on most specific issues in public opinion polls.