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March 29, 2005

constitutional rights: four

Don Herzog, Herzog: Constitutional Rights: March 29, 2005

Lib, ready to help me work through the establishment clause?  Don't cringe; you've been helpful so far.

Lib [sullenly]:  Don, everyone knows what you liberals think.  Your Bible, the ACLU's mission statement, calls for "the strict separation of church and state."

Lib, I already told you I won't be held accountable for the lunacies and confusions of the ACLU.  If everyone "knows" that, everyone will have to be at least mildly surprised.  I'm going to say that "separation of church and state" is equivocal.  And on the ACLU's interpretation it's a crummy idea.  It's all a matter of whether a law happens to benefit religion, or whether that's its justification.

Let's begin with the modern case that made "separation" (in)famous. New Jersey had a statute enabling school boards to pick up the bus fares for children going to public or nonprofit private schools.  One board picked up fares for children going to public or Catholic parochial schools.  Justice Black, writing for the majority, upheld the measure.  His stirring conclusion, echoing one of Jefferson's letters:

The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.  We could not approve the slightest breach.  New Jersey has not breached it here.

Black danced around a crucial point, but Justice Rutledge, dissenting, hauled out the language of the board's resolution:

The school board of Ewing Township has provided by resolution for "the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier...."

Lib:  Ouch.  I'd think the state may not do that.  It singles out Catholic schools by name for support.

I'd agree.  But maybe Catholic parochial schools were the only nonprofit private schools in the district; the opinion doesn't say, and I've been unable to find out.

Lib [baffled]:  Suppose they were.  You mean it would be okay for the board to support them as nonprofit private schools, but not as Catholic schools?

Sure — unless it could be shown that their support for nonprofit private schools was a pretextual way of shoveling money to church schools or Catholic families.  Now let's take another case.  The University of Virginia had a Student Activities Fund that defrayed costs for various campus publications.  One such publication was Wide Awake:  A Christian Perspective at the University of Virginia.  The magazine was frankly proselytizing, with plenty of language like this:

When you get to the final gate, the Lord will be handing out boarding passes, and He will examine your ticket.  If, in your lifetime, you did not request a seat on His Friendly Skies Flyer by trusting Him and asking Him to be your pilot, then you will not be on His list of reserved seats (and the Lord will know you not).  You will not be able to buy a ticket then; no amount of money or desire will do the trick.  You will be met by your chosen pilot and flown straight to Hell on an express jet (without air conditioning or toilets, of course).

Lib [derisively]:  Perdition on these student writers.  So let me get this straight.  A public university funds a religious publication.  That's got to violate the establishment clause, right?

Too fast, Lib.  The University denied the magazine funding, on the grounds that giving them the money would violate the establishment clause.  But that was wrong.  Or so said a majority of the Court, and I agree.  They noticed that the check wouldn't have gone straight to the religious group; it would have gone to their printer.  The law does get tied in knots sometimes over who-gets-the-check rules, but that's silly.  If the magazine gets the money not because it's Christian, but because it's a student publication, I see no reason to worry about the establishment clause.

Lib:  Fee, fi, fo, fum:  I smell the whiff of faith-based groups getting public funding.

Yup:  after this case came down, both Gore and Bush embraced including such groups.  Not because they were religious, but because they too provide social services the law has an interest in promoting.

Lib:  Methinks the old schnoz doth detect school vouchers, too.

The Court upheld Cleveland's voucher program, which included religious schools.  The majority opinion was by Justice Rehnquist, and you'll forgive me for saying that it wasn't lucidly reasoned.  But it did emphasize that the religious schools were funded as schools, not as religious groups, and there's no reason to doubt that Cleveland sought to remedy the drastically bad educational plight of their students.  The dissenters complained that the voucher's amount made it most suitable for Catholic parochial schools, but I think only the paranoid would spy a plot to prop up Catholicism.

Should legislatures have discretion over whether to extend vouchers to parochial schools?  To my considerable surprise, in another blurry majority opinion by Justice Rehnquist, the Court permitted Washington state to lop the study of devotional theology out of the coverage of a postsecondary education scholarship.  But the University of Virginia had no discretion to exclude Wide Awake.

There are knotty issues here.  But they don't threaten the general point:  if the state has a generally applicable funding program justified with secular reasons and money happens to go to religion, that doesn't implicate the establishment clause.  James Madison, more temperate than his buddy Jefferson but every bit as fiercely opposed to establishment, demanded,

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

But everything depends on how and why the taxpayer's three pence winds its way to religion.  If "separation of church and state" means a blanket ban on public funds going to religious groups, count me a vigorous opponent of "separation."

Lib:  Don, I hope you're not a card-carrying member of the ACLU.

No, I'm not.  I'm very high on civil liberties, but I disdain their picture of what that means.  Anyway, the fire department should put out fires at churches, too:  imagine if they pulled up and the chief said, "men, let this building burn to the ground; we can't put public funds to work here."  The church gets fire protection as a building, not as a church.  But if "separation" means the state can't support religious groups because they're religious, I quite agree.

Once again, left and right tailor and twist their approaches to constitutional rights to secure the policy outcomes they like.  The religious right thinks free exercise protects against burdens as such, but doesn't think establishment bars benefits as such.  The secular left doesn't think free exercise protects against burdens as such, but does think establishment bars benefits as such.  I can't see any good reason to take such competing approaches to the two religion clauses of the first amendment.

The establishment clause raises plenty of other issues besides public funding.  These days the doctrine is centrally concerned with state actions that express endorsement of religion.  But Lib, we'd better close up shop now.  There's a church group assembling by city hall.  They want you banned from the park:  they've heard you're an atheist who supports vending-machine heroin.

Lib:  They can't get away with that, can they, Don?

Nope.  But they're certainly allowed to make their case in public, and no one should think we can shut them down because they're religious.  I'll support their right to promote their views as vigorously as I support yours.

Lib [dourly]:  Some friend you are.

Well, Lib, you and I both champion individual liberty.  But if you think that means courts should interpret free speech, equal protection, free exercise, and establishment to be specially sensitive whenever the state happens to burden that liberty, you've got a view no better than the more familiar left and right views I'm assailing.

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Comments

Posted by: Simon

What would you say to Lib if he asked about extending benefits to religion as religion like RFRA or RLUIPA?

Posted by: Simon | Mar 29, 2005 7:10:46 AM


Posted by: Col. Kurtz

But if you think that means courts should interpret free speech, equal protection, free exercise, and establishment to be specially sensitive whenever the state happens to burden that liberty, you've got a view no better than the more familiar left and right views I'm assailing.

I won't disagree with that, at the moment. Your case is initially persuasive, and I will have to review it further. But I will say this: Under a libertarian regime, so to speak, these thorny cases that vex courts for decades and rile up both ACLUers and O'Reilly-ites like a hit of methamphetamine would never exist. Government funding of religious student publications? Hard to find at Non-Existant State U. And Buddhists might ponder this koan: How can a public park that never was contain a sectarian Christmas display?

My point is, I think there is an ideological integrity to the libertarian view of the freedoms in question that is worth something, while your characterization of a libertarian take on matters of current judicial concern is not inaccurate. As for the latter, one could argue that the existence of government institutions like schools and public parks draws libertarians into questions that, had they their way, would need not be asked. When faced with these, an honest application of libertarian principles may necessitate the kind of mechanisms that look like calculations disguised solely to further one's chosen interests. Therefore, while you may be correct that libertarians can claim no real superiority to conservatives' and liberals' positions on the matters in question, they might have a good excuse.

Anyway, I've been awake for way too long (from a long day of pitching vending-machine heroin), and I am more than willing to admit I have mischaracterized the point of the series, if that is the case. I enjoy the blog, and always find your posts thoughtful. In respectful, speculative disagreement...

Posted by: Col. Kurtz | Mar 29, 2005 9:08:57 AM


Posted by: Col. Kurtz

But if you think that means courts should interpret free speech, equal protection, free exercise, and establishment to be specially sensitive whenever the state happens to burden that liberty, you've got a view no better than the more familiar left and right views I'm assailing.

I won't disagree with that, at the moment. Your case is initially persuasive, and I will have to review it further. But I will say this: Under a libertarian regime, so to speak, these thorny cases that vex courts for decades and rile up both ACLUers and O'Reilly-ites like a hit of methamphetamine would never exist. Government funding of religious student publications? Hard to find at Non-Existant State U. And Buddhists might ponder this koan: How can a public park that never was contain a sectarian Christmas display?

My point is, I think there is an ideological integrity to the libertarian view of the freedoms in question that is worth something, while your characterization of a libertarian take on matters of current judicial concern is not inaccurate. As for the latter, one could argue that the existence of government institutions like schools and public parks draws libertarians into questions that, had they their way, would need not be asked. When faced with these, an honest application of libertarian principles may necessitate the kind of mechanisms that look like calculations disguised solely to further one's chosen interests. Therefore, while you may be correct that libertarians can claim no real superiority to conservatives' and liberals' positions on the matters in question, they might have a good excuse.

Anyway, I've been awake for way too long (from a long day of pitching vending-machine heroin), and I am more than willing to admit I have mischaracterized the point of the series, if that is the case. I enjoy the blog, and always find your posts thoughtful. In respectful, speculative disagreement...

Posted by: Col. Kurtz | Mar 29, 2005 9:11:01 AM


Posted by: Terrier

As a Buddhist, I would rather have the public park. I can live with the amount of play in the establishment clause that Don is arguing as correct. Losing the public park, however, would make us all, Buddhist and Fundamentalist Libertarian alike, poorer.

Posted by: Terrier | Mar 29, 2005 10:40:02 AM


Posted by: Don Herzog

Simon, I'd like to hold off on those thorny issues for now -- I think all of us will be in a better position to discuss them after my next post.

Posted by: Don Herzog | Mar 29, 2005 11:33:43 AM


Posted by: D.A. Ridgely

Mr. Herzog writes regarding Everson, “maybe Catholic parochial schools were the only nonprofit private schools in the district; the opinion doesn't say, and I've been unable to find out.” It is, indeed, an interesting question of fact. Justice Jackson’s dissent, while not dispositive, certainly seems to suggest at least that the majority failed to properly consider the question:

The New Jersey Act in question makes the character of the school, not the needs of the children determine the eligibility of parents to reimbursement. The Act permits payment for transportation to parochial schools or public schools but prohibits it to private schools operated in whole or in part for profit. Children often are sent to private schools because their parents feel that they require more individual instruction than public schools can provide, or because they are backward or defective and need special attention. If all children of the state were objects of impartial solicitude, no reason is obvious for denying transportation reimbursement to students of this class, for these often are as needy and as worthy as those who go to public or parochial schools. Refusal to reimburse those who attend such schools is understandable only in the light of a purpose to aid the schools, because the state might well abstain from aiding a profit-making private enterprise. Thus, under the Act and resolution brought to us by this case children are classified according to the schools they attend and are to be aided if they attend the public schools or private Catholic schools, and they are not allowed to be aided if they attend private secular schools or private religious schools of other faiths…. If we are to decide this case on the facts before us, our question is simply this: Is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination?

(Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947), J. Jackson, diss. at 20-21. Emphasis added.)

Posted by: D.A. Ridgely | Mar 29, 2005 2:00:26 PM


Posted by: Sebastian Holsclaw

The sad thing is we see Don's personal preferences, but he doesn't explain why his, or the ACLU's, or a church's preference is or is not actually Constitutional.

Posted by: Sebastian Holsclaw | Mar 29, 2005 2:40:19 PM


Posted by: stick


"If "separation of church and state" means a blanket ban on public funds going to religious groups, count me a vigorous opponent of "separation." So shall say the Sapphic New Life Church (gaining popularity in South California) also get some public funds to say sponsor Astrology Awareness Days?


I think it is much better to support the separation clause in all instances, and close down parochial and private religious schools and thus also prevent the possibility of the First Chruch of Rosie O'Donnell from occurring as well.

(I.e attaching some positivistic requirements to education code might be step in the right direction.)

Posted by: stick | Mar 29, 2005 6:27:07 PM


Posted by: DJMatheso

Don: Attractive as I find your reasoning, I've been trying to come up with alternatives for some time. I think there may be some justification for differential sensitivity to incidental burdens on different rights, depending on whether the burden strikes at the “core” of the right.

I don't think this is merely a semantic debate about whether a law that burdens an ancillary aspect of a right actually burdens the right--it's an approach to assessing constitutionality that in essence measures the gravity of the threat to the process of self-government. Rights are perhaps given protection from the legislature not just because its nice when individuals have these rights, but because legislative invasion of certain rights represents the canary in the coal mine. When rights are invaded in certain ways it represents a threat to our particular brand of self-government, so the constitution placed them outside the scope of legislative action. Is it really the atheist who can’t be a notary public we’re worried about, or the way a religious test is going to impact government? (If you don’t like that example, think of the 15th Amendment instead).

Your “what’s the legislature trying to do?” approach works about the same way, but I find the question “what’s the social function of the right?” question helpful. It is more useful in constructing extensions to rights than in resolving current conflicts, but it proves helpful relating to free speech zones, one area in which your approach has (to my mind) failed to produce optimal outcomes.

Let’s take the particular example of the Republican Convention in NY last year. The government’s rationale is “we’re trying to preserve the grass on Central Park from the hordes of protesters at the Republican National Convention, so you can’t have a permit—and that’s OK because no one else can either so we’re not trying to suppress the speech of anyone in particular.” Under my approach, the denial of use of the park even on a viewpoint-neutral basis would be a problem because this regulation was used to prevent the “right” from serving the social function it’s supposed to serve: people want to congregate in central park and protest, and the restriction in this case doesn’t incidentally burden that right, it prevents the event because exercise of the right will cause adverse effects.

Am I just suggesting that we “balance” the importance of immaculate sod against the constitutionally enshrined importance of political protests? I don’t think so. It’s an issue of whether the State can advance justifications sufficient to burden rights the exercise of which is important to self-government. It’s not my “felt need to speak” against Central Park’s flourishing grass, it’s New York’s speech restriction against necessary public debate.

Is this a distinction without a difference? I hope not, because it yields interesting results (aka, results I like) when applied to two questions in particular: speech on putatively private property and developing a distinction between free exercise rights and speech rights.

Posted by: DJMatheso | Mar 29, 2005 8:31:19 PM


Posted by: smijer

Re: Fire Department comment. Although I can't put my finger on it, I perceive that there must be a difference between public funds to a church and a public service to the church. I can understand how everyone benefits from a fire department. I cannot understand how everyone benefits from putting public money into private education. If public funds go to the local Catholic school, can they still legally discriminate against atheists and homosexuals?

Posted by: smijer | Mar 30, 2005 10:35:04 AM


Posted by: D.A. Ridgely

Without getting too far into the philosophical weeds, the public good is an educated public, whether educated in public or in private schools. Note, after all, that parents who choose to send their children to private schools still have to pay taxes to support the public schools and reduce the costs of public education by sending their children elsewhere.

Arguably, in any case, the courts can hold that the public money goes to facilitating the student by providing transportation, not to the school, per se, which might obviate the other sorts of legal issues you raise.

Posted by: D.A. Ridgely | Mar 30, 2005 10:51:23 AM


Posted by: smijer

Without getting too far into the philosophical weeds, the public good is an educated public, whether educated in public or in private schools.

Sure. The public good is a well fed public, whether groceries come from public or private grocery stores. However, if the government funds the grocery store, we consider it public, and we use it only for groceries, not for handing out Bible tracts. Now, the government doesn't fund grocery stores, but if it did, we would no longer consider them private. Why do we continue to consider a school private if it is receiving government funds?

Arguably, in any case, the courts can hold that the public money goes to facilitating the student by providing transportation, not to the school, per se, which might obviate the other sorts of legal issues you raise.

In the case of busing, yes. In the case of vouchers, no. As a separate issue, I would argue that busing to private schools is not a legitimate public service, since parents choose private schools at their own option. In other words, busing is mandatory because school is mandatory, but private school is optional, so private school busing is not the state's concern. But I wouldn't push that as a constitutional issue.

Posted by: smijer | Mar 30, 2005 3:03:38 PM


Posted by: Untenured Republican

I like the idea of "positivistic requirements [in] the education code." All we need to do is get some state-funded positivistic theologians to tell us what the theological (or, a-theological, same difference) truth is that all should be required to learn. I volunteer! While we're at it, we should probably have required classes in the clear fraudulence of the Book of Mormon, in recent archaeological work that suggests that Exodus could never have happened, and in the evidence that suggests that all but a smattering of the Buddhist Sutras are almost certainly fictional. (I sure hope historical evidence doesn't emerge that suggests that the Jews actually did kill Jesus, because I guess we'd have to teach that too). Why stop there...

Posted by: Untenured Republican | Mar 30, 2005 4:30:09 PM


Posted by: stick

With some real positivistic requirements, theologians, quasi-positivistic or otherwise, wouldn't be permitted in the public schools would they?

Or perhaps, instead of such propeller-head stuff, you think the state should teach religion: how about say the Book of Revelation. Yes Rapture Awareness Days! Yeah let's have the book of Mormon too: and here children is an imagined picture of the plates (but you are not allowed to see the real ones) that Joe Smith found on a hill in Ohio, when lead by the sacred salamander, that reveal that Jesus walked the Americas..... Or Astrology too. Miss CLeo, Principle of Sun Signs ELementary....The truth shall not be denied!

But really why not ramp it the F up and have some Imams teach islamic fatwas, such as one issued a few years ago that denies Copernicus and Newton and claims that all western scientists are infidels...I bet even some texas fundamentalists, if not supreme court justices, would agree with dat

Posted by: stick | Mar 30, 2005 6:33:58 PM


Posted by: D.A. Ridgely

smijer:

Just as a threshold observation, I find it amusing you note everything I previously wrote except my comment about the parents both contributing toward and reducing the cost of public education, but we’ll let that go.

My sense is that people who object to vouchers to attend parochial schools are merely phobic. If children can be educated as well or better and at roughly the same cost outside the public schools as in them, the public interest is served just as well. As long as the choice is the parents’ and the state doesn’t discriminate beyond setting standards for the secular education being taught, the fact that those children might be subjected to some religious instruction at those schools doesn’t bother me one iota (even if I think the religious instruction in question is entirely bogus) because the state will not be engaged in the establishment of religion or of any particular religion.

Bear in mind that the topic at hand here is constitutional interpretation, not what you think of religion or what I’d prefer if such matters were up to me. Believe me, you’d like the latter even less.

Posted by: D.A. Ridgely | Mar 30, 2005 6:57:16 PM


Posted by: stick

Yet Jefferson insisted that public education was essential to the democracy. Rational, secular standards across the curriculum are a good thing. Lacking those, along with the 3 R's, some kids may get the Bible, some get a catechism, some get the Koran, some get Shirley McClaine. It always surprises me that lawyerly types rdon't see the potential hazards of having a society comprised of people with all these bizarre, incompatible ideologies. Would you allow religious courts as well?

I'd wager many teachers would sacrifice mentioning religions and the Good Book if it meant getting rid of new age or post-modernist thinking too. Private schools, like privatization, leads to cliques and factions. The rich jewish or catholics don't care--they will, more or less, let public ed. be ruined while they send their kids to prep school (and then on teo Stanford, Ivy League, etc.). Middle class and poor kids on the other hand have to survive in the madness of public ed., and the politicians if not teachers do not really give a sh*t about the standards, but about damage control.

Posted by: stick | Mar 30, 2005 8:18:16 PM


Posted by: D.A. Ridgely

The problem, Untenured Republican, is that in no time at all the positivists would break up into sectarian squabbles between the verificationists and the falsificationists. On the other hand, I don’t think we’d have to be any more worried about what the truth is than we are now. After all, to Ayer is human...

Posted by: D.A. Ridgely | Mar 30, 2005 9:28:57 PM


Posted by: Untenured Republican

I see that no one gets it.
No value-neutral education is possible.
But I don't understand why stick wouldn't want to support, for example, banning parochial schools altogether (or, if the conscience blanches, setting licensing standards in such a way that only the correct, that is, secular views and associated values, get taught anywhere).

Good thing we all know what the *true* values are...

Posted by: Untenured Republican | Mar 30, 2005 9:42:02 PM


Posted by: D.A. Ridgely

Sure, they're the ones that aren't false!

Posted by: D.A. Ridgely | Mar 30, 2005 9:47:40 PM


Posted by: Perseus

How do we *know* that no value-neutral education is possible? In the mean time, I'll munch on some of the free cookies that UR is passing out--and people say Republicans are stingy.

Posted by: Perseus | Mar 30, 2005 9:59:44 PM


Posted by: stick

"I don't understand why stick wouldn't want to support, for example, banning parochial schools altogether."

I think it is obvious I do support that. Better some little spat between Ayerheads and Popperian administrators then, say, between catholics and wiccans. Moving towards a German model of gymnasium/hauptschule should also be considered, or the japanese model of corporate involvement and hard-core technical training and mathematics. About anything would be an improvement on the boot camps of US public education now, where 25% of students are permitted to go to college and then be some low-ranking professional, and 75% are in gangs and moving to vegas when they graduate (that's nearly LA, no lie)

Posted by: stick | Mar 30, 2005 10:37:09 PM


Posted by: Terrier

Untenured Republican, just an aside to defend my poor little stitched together teachings - unlike others we Buddhists don't expect history from our sacred texts - they make a philosophical argument not an affirmation of eternal truth. Likewise that is why I support the state providing the safety net and not private charity - personally I would be glad to teach fishing but I don't want to hand out fish. Those that need fish should get them from the non-sectarian state that represents us all so that democracy is not hijacked by need and we can all engage in an equal debate.

Posted by: Terrier | Mar 31, 2005 2:31:24 PM


Posted by: Anand

I understand that you'd like to have a Catholic School funded through public money in so far as it is a school. But I think this argument lets the flies back in through the window after pushing them out of the door, for it is now not at all clear what a school is. It may well depend on who is doing the defining. Is a school that teaches (only) catechism a school as defined by "the public"? Is it one as defined by the church? Is a school that teaches "intelligent design" really a school? Now, instead of saying that schools with religious affiliation shouldn't get money, I think you have to determine which schools (religious or otherwise) should actually count as schools as defined by the "state". This appears to be practically more painful (leading to further debates - is the definition of school minimal, in that a religious school can do more, or complete, as in a school that teaches more is in violation of the definition) , I think the proxy of "religious affiliation" does quite well in its stead.

Posted by: Anand | Apr 1, 2005 4:29:01 PM


Posted by: Untenured Republican

Terrier:

You'll have to take it up with stick. Once the Ministry of Truth determines that Buddhism's eternal truths actually are, he'll allow you to teach it--in the public schools, since the private Buddhist ones will all be abolished in his Utopia of Knowledge. Personally, I think there's a lot there myself as well. But I'm more generous: I'll let you teach it without having to *prove* to all reasonable people (hello? any out there?) that there is.

Posted by: Untenured Republican | Apr 1, 2005 4:39:11 PM


Posted by: D.A. Ridgely

Anand, that isn't really such a difficult task. Christians and Jews have founded hospitals, too, but I don't think anyone seriously worries about whether they are practicing Presbyterian or Jewish medicine. And, yes, I am aware that some hospitals refuse to perform certain medical procedures on religious grounds, which gets us back to the whole Darwinism debate again. But my personal answer to that is that if the worst think that happens to a kid in, say, a Roman Catholic school is that she doesn't get Darwin, she's leagues ahead of what most kids in some public schools are missing.

Posted by: D.A. Ridgely | Apr 1, 2005 6:56:10 PM


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