Church-State Separation:
A Keystone to Peace
Clark Moeller, January 2004 --
[Copyright 2004, Pennsylvania Alliance for Democracy -- Printing, copying
and distribution is encouraged with full attribution.]
EROSION OF DEMOCRACY'S FOUNDATION
The erosion of religious liberty is now underway in the United States.
There are at least seven causes that contribute to this erosion.
http://www.padnet.org/CSS2/CSS2Erosion.html#Ero
(EXCERPT)
The sixth attack on church-state separation has come from the U.S. Supreme
Court. Over the last 15 years, the Supreme Court has eroded church-state
separation in a number of decisions.166 Of these, one of the biggest
setbacks was the United States Supreme Court's June 27, 2002, decision
approving the use of taxes to fund religious schools. This 5 to 4 decision
in Zelman v. Simmons-Harris, "...was undeniably the bombshell of the
court's 2001-2002 term," stated an editorial in The New York Times. It
continued, "... by upholding a [Cleveland voucher] program in which 96
percent of the [student] participants attend religious schools, the court
removed a number of bricks from the wall separating church and state."167
In his dissent to this 5 to 4 decision in Zelman, Supreme Court Justice
Souter argued that the majority opinion violated the concept the Supreme
Court had upheld in Everson v. Board of Education of Ewing that "No tax ...
can be levied to support religious activities or institutions ..."
One misconception about school vouchers is that they provide parental
choice. In fact, the choice is that of parochial school administrators who
can accept or reject a student based on his or her parents' religion.168
For 50 years, citizens have rejected vouchers at the ballot box.169
Between 1940 and about 1990, the federal courts and the United States
Supreme Court fairly consistently decided that the Establishment Clause
meant what it said.170 However, this pattern has changed. One perspective
on this apparent shift is reflected in comments by United States Supreme
Court Justice Antonin Scalia in January, 2002, at the University of Chicago
Divinity School, in which he quoted St. Paul: "Dearly beloved, avenge not
yourselves, but rather give place unto wrath: for it is written, vengeance
is mine, saith the Lord." Scalia continued,
"And in this world, Paul's world, the Lord repaid, did justice
through his minister, the state. These passages from Romans represent, I
think, the consensus of Western thought until recent times - not just of
Christian or religious thought, but of secular thought regarding powers of
the state. That consensus has been upset ... by the emergence of democracy.
It seems to me that the reaction of people of faith to this tendency of
democracy to obscure the divine authority behind government should not be
resignation to it, but the resolution to combat it as effectively as
possible, and the principle way of combating it, in my view, is constant
public reminder that ... we are a religious people whose institutions
presuppose a supreme being."171
Commenting on the entirety of Scalia's remarks at the conference, Sean
Wilentz, who directs the American Studies program at Princeton, wrote,
"Justice Scalia seeks to abandon the intent of the Constitution's framers
and impose views about government and divinity that no previous justice, no
matter how conservative, has ever embraced."172 As a result of attitudes
such as Justice Scalia's and court decisions such as that in Zelman, writes
Hollyn Hollman, general counsel of the Baptist Joint Committee on Public
Affairs, fundamentalists are "... now trying to discredit, and eventually
dismantle, state constitutional provisions that present a larger obstacle
to government funding of religious institutions than the First
Amendment."173
There has been a steady decline in protected civil rights besides
religious liberty, most of which has gone unnoticed by the public. For
example, during its 2001-2002 term in a 5 to 4 decision, the United States
Supreme Court decided to reduce a citizen's opportunity to ask for a
redress of grievances based on sex or age discrimination by a state or its
agent, such as a state university. By the same vote split, they narrowed
the Fourth Amendment's search and seizure protections, weakened the Fifth
Amendment's protection against self-incrimination, and further weakened a
defendant's right to effective counsel.174 Most citizens mistakenly believe
they still have these rights.
Martin Garbus, a First Amendment expert and lawyer who has appeared
before the U. S Supreme Court, argues that, "... this U.S. Supreme Court is
seizing power, and in doing so it is radically changing the law and this
country. The Rehnquist Court rejects much of the last sixty-five years of
America's constitutional law; rejects the balance between Congress, the
Court, and the President; and rejects the form of our democracy that these
cases established. It does so to protect entrenched interests at the
expense of unpopular minorities. It attempts to justify its new position by
discarding prior cases and by looking to resurrect and reinterpret the
Constitution as no other court has ever done. Instead of a balance of
power, we have an attempt at judicial exclusivity at the expense of the
Congress and ‘We the People.' "175
166. Supreme Court decisions that have undercut church-state separation:
Employment Division v. Smith, 1990; Rosenberger v. University of Virginia,
1995; City of Boerne v. Flores, 1997; Agostini v. Felton, 1997; Mitchell v.
Helms, 1999; Good News Club v. Milford Central School, 2001; and finally,
Zelman v. Simmons-Harris, 2002. [Sources: Garbus, Martin, Courting
Disaster: The Supreme Court and the Unmaking of American Law (New York, NY:
Times Books, Henry Holt, 2002), pp. 251-282; Sheffer, Martin S., GOD Versus
CAESAR: Belief, Worship, and Proselytizing under the First Amendment
(Albany, NY: State University of New York Press, 1999), p. 125; Davis,
Derek, "Constitution, U.S.," in Wuthnow, Robert, ed., The Encyclopedia of
Politics and Religion, Washington, DC),Congressional Quarterly, Inc. 1998,
pp. 187-190; see also ]
167. Editorial, "The Court's Troubling Term," The New York Times, 3 July
2002, p. A22.
168. For example, a 15-year-old boy recently has been removed from a
Baptist parochial school in Lexington, NC, because of his religion.
"Baptist doctrine and teachings do not complement the Catholic doctrine,"
said school administrator Dan Hightower. "Home, school, and church have to
complement one another." The school's policy claims it admits students
"whose parents are in agreement with the Christian philosophy, purposes,
and standards of the school." (Source: "Update: Catholic Student Expelled
from Baptist School," Voice of Reason, No. 3 [80], 2002, p. 7).
169. Vouchers: For more than 50 years, voucher proposals that would
provide tax revenues to fund religious schools have been rejected by voters
at the polls by large margins, generally in the range of 2:1. In November
2000, voters of Washington, California, and Wisconsin voted down voucher
referenda.a In a 2000 survey of public attitudes by Phi Delta Kappa/Gallup,
69% of Americans rejected vouchers in favor of "improving and strengthening
existing public schools."b In 2001, Governor Tom Ridge of Pennsylvania
could not get enough support to bring his voucher bill to the floor of the
legislature for a vote. [Sources: a Doerr, Edd and Menendez, Albert J.,
Church, Schools, & Public Money: The Politics of Parochiaid (Buffalo, NY:
Prometheus Books, 1991), pp. 50-51; bDoerr, Edd, "What Next?" The Humanist,
November/December 2002, p. 41].
170. Sandel, Michael J., Democracy's Discontents: America in Search of a
Public Philosophy (Cambridge, MA: Harvard University Press, 1996), p. 58.
However, there were several exceptions. These included Supreme Court
decisions to approve government support of religious schools with
nonreligious books and tax-supported school busing.
171. Remarks by Supreme Court Justice Scalia in his role as a panelist at
the conference, "Call for Reckoning," at the University of Chicago Divinity
School on January 25, 2002. (Source:
http://pewforum.org/deathpenalty/resources/transcript3.php3)
172. Wilentz, Sean, "From Justice Scalia, A Chilling Vision Of Religion's
Authority In America," The New York Times, 8 July 2002, p. A19.
173. Hollman, Hollyn, "Dredging up Ugliness in the Name of Vouchers,"
Voice of Reason: The Newsletter of Americans for Religious Liberty, No. 3.
[80], 2002, p. 4.
174. Doherty, Fiona, et al, A Year of Loss: Reexamining Civil Liberties
since September 11 (New York, NY: Lawyers Committee For Human Rights,
2002), available at www.lchr.org; Also Editorial, "The Court's Troubling
Term," The New York Times, 3 July 2002, p. A22.
175. Garbus, Martin, Courting Disaster: The Supreme Court and the Unmaking
of American Law, (New York, NY: Times Books, Henry Holt & Company, 2002),
p.1; also see: Noonan, Jr., John T., Narrowing The Nation's Power: The
Supreme Court Sides with the States, (Berkeley, CA: University of
California, 2002). John Noonan is the Robbins Professor of Law Emeritus at
the University of California, Berkeley, and a senior judge of the United
States Court of Appeals for the Ninth Circuit.
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