Monday, March 01, 2004

One More Battle Over Law and Religion

When by a vote of 7-2 the Supreme Court rejects the argument that a state cannot deny scholarship assistance to a college student who wants to study for the ministry at a church-related institution and the majority opinion is written by Chief Justice Rehnquist, it’s a safe bet that the claim was on weak constitutional grounds. Last week’s ruling in a case from Washington State should not be much of a disappointment to those who like me advocate certain forms of governmental aid to religious schools. This was not a good case to hang our hats on.

Thus, the decision is not the end of the world for government aid advocates and it will not put an end to the religion wars that have occupied American courts and judges for more than half a century. We will soon have a decision in the Pledge of Allegiance case and while Justice Scalia has recused himself, the betting is that a majority will rule that the words “under God” in the Pledge do not constitute an unconstitutional establishment of religion.

Whatever the outcome, courts will continue to be entangled in our religion wars, with each side scoring victories and suffering setbacks. This ambiguous scorecard may be functional and even preferable in view of the sharp divisions over the role of religion in what has been termed the public square. In a way, the availability of courts to serve as the arena for these disagreements is a safety valve which limits the intensity of the conflict.

While the New York Times commented that the latest ruling is “a setback for advocates of publicly funded school vouchers,” it remains that not long ago the Supreme Court approved voucher arrangements and it’s unlikely to retreat from that position. The Washington State decision means no more than that when a state is more prohibitive of support for religion than the Federal government, it is not in violation of the Free Exercise Clause of the First Amendment. In his opinion, Chief Justice Rhenquist underscored, “there is no doubt that the state could, consistent with the Federal constitution,” provide scholarship assistance to students to “pursue a degree in devotional theology.” To employ a term favored by the majority, there is room for “play in the joints” and to permit the use of public funds for religious training and other religion-related activity. But this does not mean that government must fund any religious activity.

While the opposing sides keep on battling as if the stakes are high and legal defeat or victory makes a world of difference, what courts decide is often less significant than they and most of us assume. Of course, it is significant when judges order the removal of the Ten Commandments or sustain vouchers. Those who are directly affected have what to cheer or complain about. Yet, we tend to exaggerate the impact of judicial decisions. Most social transactions, including those involving state and religion, occur away from public attention and, at times, beyond the reach of legal institutions.

Irrespective of constitutional language mandating church-state separation, our governments do not operate as if religious activity occurs in a world apart. The First Amendment may proscribe entanglements between religion and government; society makes them inevitable. To an extent, this is the outcome of politics. Religious groups are, after all, interest groups and like other interest groups, political activity provides them with opportunities to benefit from government, a process that is advanced because candidates and officials understandably view religious groups as ripe for political wooing.

Let us suppose that politics is not a factor and that those in office are committed to strict church-state separation. Would this mean no faith-based initiatives, such as those espoused by President Bush? Would there then be a high wall of separation between church and state?

I doubt it, the reason being that in key areas of public responsibility, religious agencies - often acting in a religious capacity – have a vital role to play. This is true of child care, social services, hospitals and nursing, mental health and a great deal more. Our commitment to social justice and concern for those in need are quite frequently fulfilled through religious groups and activities that are to one extent or another funded by government. Because few want to throw out the baby with the bathwater, we have come to accept arrangements that might not pass constitutional muster if the standard of strict separation were used.

With few exceptions, strict separationists, including too many Jews, rarely kvetch about government funding of religious programs, that is if they are outside of the always passionate field of education. Education has been the main constitutional battlefield in the endless war over the First Amendment. But even here social realities mitigate the impact of judicial decisions. As an illustration, the Supreme Court’s validation of voucher arrangements has had little practical effect, despite the fervent cheers of voucher proponents and the intense fears of voucher opponents. On the other side of the ledger, rulings that curtail direct funding of religious schools have themselves been curtailed by the channeling of public funds to parents of religious-school children.

Again, this is not to say that what courts decide is of minor consequence, only that judicial rulings are not necessarily as final or as decisive as they appear to be at the time that they are made. Viewed from this perspective, America’s religion wars are fairly benign exercises and no side loses or wins it all. There is something comforting about this.