The Establishment Clause: A Return to the Question of Man's Law and God's Law

The Scobleizer Weblog has a piece on the proper relationship of the State to religion(s). The author takes what I would consider an extreme view of the Establishment Clause, wherein he argues that the State should have nothing to do with any religion, that it should reject any relationship to religion.

Rob does have some other points. For instance, he says that we should consistently deal with all religious displays. Implicit in his arguments is an [sic] "display them all, or display none" point of view. I totally agree with that, although I'd take the "display none" point of view. Governments should not establish religion. At least that's what our constitution says. So, government officials. [sic]You know, teachers, staff, mayors, senators, etc should not do anything that favors one religion over another. And, yes, I include Atheism in that bunch.

Yeah, I know, our money says "in God we trust" and they "swear in" presidents and other elected officials over bibles and such. Personally these are rituals that are repugnant and should be removed. They are unconstitutional on their face and they are a slap in the face of the millions of Americans who do not believe them (or believe differently).

Insofar as he argues that the state needs to reconsider the implicit support it gives any sort of deism by requiring people to swear in on the Bible in court or in other rituals, Scoble is only partly correct. Yes, the Bible can be used for swearing in, but I have often seen people refuse to swear in on the Bible. I've seen some judges remove Bibles from their courtrooms and have simply required an oath of honesty from the witness. Presumably, an atheist president would not need to be sworn in over a Bible. While I agree that we could do away with the practice of swearing people in by way of a religious text in secular courts, I don't think it's accurate to state that the use of this symbol is mandatory and universal.

Scoble's next point is that the state should not have any role in the establishment of religion.

Instead, focus in on what Rob's asking for. He wants it to be OK for schools to establish religion. Market it. Push it. Think about it. A teacher who is allowed to make her class sing a "Christian" song. Hello, what about the Muslim kid in the back row? What about the atheist kid? What about the Jewish kid? What about the kid who believes in some new-age religion? The JW [Jehovah's Witness] kid (they aren't allowed to celebrate Christmas, by the way)?

The question this raises for me would be the nature of Scoble's position on the Establishment Clause vis a vis the use of school vouchers. If the full voucher program is allowed, it will be the case that federal funding is used to benefit religious schools, whether Catholic, Jewish, Muslim, etc. Are we to expect the state to take such a strong stance on the Establishment Clause that this school choice program must fail? I suggest that it should not, that the practice of using school vouchers to pay for schooling at any school that meets minimum educational standards is acceptable because it does nothing to favor any belief over any other (including the lack of belief). Still, it's interesting to see what those with strong views on the Separation of Church and State think about issues like this.

See also The Devil v. Roy Moore and Equal Justice Under Law: More on Justice Moore.

Comments

[Jonas M Luster]

In going with Steinberger et al, who conceded, that the Establishment Clause was not meant to keep the church out of the law, but the law out of the churches, the question of school vouchers warrants revision, in my opinion.

What would the effective influence be, that voucher based financing of educational systems have on the quality and extend of the faith based teaching?

Would such a program give secular financiers a means to control the teachings of faith-based institutions?

Surely, the financing entity must ensure that the money is used to render a qualitatively similar education across the supported systems. In this case, schools might be prevented from, for example, teaching creationism as one accepted theory, or even as the only accepted theory.

Now, I am not a fan of schools who - like some in Alabama did - do no longer teach evolution in favor of creationism, but would this not constitute an undue influence of a secular program into a faith based initiative, when measured along the guidelines of the Establishment Clause?

Similarly the role of man and woman as taught in fundamentalist muslim schools. Islamic law is very strict on the equality of men and women, yet imposes some restrictions on the extend as to how each gender can act in certain situations. Would supporting such a program financially mean a violation of Title VII? And if so, would changing the curriculum not constitute another undue influence?

Or dietary restrictions? What about the current requirements in public schools to provide milk and other dairy products? Would the voucher program not also make it necessary for, say, Jewish schools to break kashrut and offer milchig (dairy) with fleishig (meat)? At this point, either the financing entity violates its own standards as to what it requires of an educational system, which might become a very slippery slope for our already sub-par educational system, or it excludes such schools from the voucher program.

And, let's face it, if vouchers become an across-the-board kind of deal, schools will have to make sure they're able to accept them in order to stay in "business".