When George W. Bush was re-elected by an unexpectedly wide margin, there was much media and political talk that in order to accommodate social conservatives who were decisive in crucial Red States, Democrats and their liberal allies would moderate their position on hot-button social issues. Soon enough, there were strong signals that this wasn't idle speculation. Perhaps it was their still being blue over the electoral outcome that induced gay righters to say that their advocacy of same-sex marriage was moving too fast - after all, a year later, they're in high drive on the issue - or Senator Clinton to suggest a compromise on abortion.
While certain liberal sacred cows were being offered for political slaughter, there was one that was still regarded as an untouchable, as too sacred to put on any altar to tame the wrath of Evangelical and Fundamentalist Christians. There could be no yielding on separation of church and state, on the dogmatic belief that great evil would befall the country if the wall of separation was even slightly breached.
Along came Katrina and New Orleans' walls holding back flood waters were severely breached, giving the purists, including many in the Jewish community, an opportunity to demonstrate anew that nothing can deter their absolutism. When as part of Washington's response to the disaster President Bush proposed an emergency education program that included vouchers for non-public school students - parochial schoolers among them - liberals and Jewish groups emitted howls of protest.
But Katrina is different. Water and wind did not distinguish between home and church, between public school and religious school. There was perfect neutrality in the destruction. Presumably, there should be a reciprocal neutrality in the government's response and in the challenge to rebuild, certainly when we look at this challenge from the perspective of Katrina's victims. If in helping them, the religious education that some received were excluded from public funding on First Amendment grounds, government would inadvertently, yet inevitably, be hostile to religion.
Putting aside the important question of whether there is sufficient space and educational infrastructure to accommodate the large number of parochial school attendees who cannot return to their former schools, even in its most liberal composition the Supreme Court has sanctioned public programs that encompass religious schools and their students when the primary focus is on the welfare of the children. Is there a more compelling example of the child-benefit imperative than the one provided by Katrina?
There is even a question whether in view of the scope of the disaster America is facing, public funding might be utilized to rebuild churches and other religious institutions damaged or destroyed by the storm. Could they be excluded, if the aim is to restore what once was?
The point is not new. It was made nearly forty years ago by Nathan Lewin, the noted constitutional lawyer who was then at the Justice Department, in a paper presented at a conference on aid to parochial schools that I organized and chaired. Not long before, there had been destructive race riots in the Watts section of Los Angeles and in other cities. Referring to these events, Nat said:
"Hypothesize, if you will, an imaginative Mayor of Los Angeles faced with a destroyed area such as Watts, or a daring housing administration in Detroit or in Newark. What if he were to conclude that his municipality should float a bond issue and rebuild the wasted area from the very ground up at city expense? He designs homes and stores and libraries and offices, and then it occurs to him that he must include churches and possibly a synagogue or a mosque ... Must the Mayor build the churches in the area with the very limited funds which the residents can provide or may he dig into the city's treasury to construct buildings that will fit in with their surroundings? I have no hesitation in saying that he may do the latter - even though the city is financing the construction of a church."
The relevance to Katrina is obvious. For all of Nat's prescience, there is no chance that Washington or Louisiana will rebuild ruined Gulf State churches, nor should they be rebuilt with public funds. I believe that a defensible distinction can be made between churches which inherently and fully are establishments of religion and parochial schools which inherently are educational institutions. In any case, school vouchers go directly to children and their parents and they are neutral instrumentalities. The first blast of criticism of the President's proposal was unwarranted. It was the automatic reaction of people who have long been conditioned to oppose any place for religion in the public square, people who never feel the obligation to re-examine their faithless faith.
As I write, there are indications that congressional strict separationists are tempering their position, in recognition that the extreme emergency warrants attention being paid to all victims, including those of a religious persuasion. There isn't a corollary indication that Jewish church-state purists are ready to soften their views. We are diehards and in what I regard as a perverse way, we are consistent. American Jews, after all, have done a good job undermining Judaism. Why shouldn't they bring their talent and resources to bear on other religions?