Breaching the Wall Between Church and State

A case currently before the Supreme Court is one that Jewish citizens should take very seriously…despite the fact that it appears to have nothing to do with Jews at all.

The case has to do with Lutherans, and specifically with a church in Missouri, the Trinity Lutheran Church in the town of Columbia. At first blush, the whole issue seems wholly unremarkable. The church operates a daycare center and a preschool on its premises, and maintains a playground in which the children can play outdoors. But the playground has a surface that could be dangerous if a child falls, and so the church had the idea of replacing the hard surface with a rubber one. That sounded like a sensible plan forward and so, upon hearing that the State of Missouri was actually offering grants to playground operators to make that specific improvement using the rubber salvaged from recycled tires, the church applied for one…only to be turned down cold because the state’s constitution specifically prohibits the state from spending any public funds “directly or indirectly in the aid of any church.”

This understandably irritated the church leadership and prompted them to sue the State of Missouri on the grounds that the state’s prohibition was in violation both of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. To a non-lawyer like myself, neither argument feels too compelling. The First Amendment forbids Congress from “prohibiting the free exercise” of religion, but that feels like quite the stretch here: the State of Missouri is not forbidding the church from having a rubberized surface in its playground, just declining to pay for it. Nor is it obvious in what sense having one or another sort of playground could be described as the “exercise of religion” in the first place. Moving along, the Equal Protection Clause argument prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws,” which means that the law must always be enforced evenly and fairly, and specifically that the rights and freedoms enshrined in our laws cannot be imagined to apply to some citizens but not to others. But bringing the Fourteenth Amendment to bear in this context too feels a bit tenuous: to say that the State of Missouri is denying equal protection under the law to the members of the Trinity Lutheran Church by declining to buy them something sounds like weak argument to me! And then, just to muddy the waters a bit more, the Governor of Missouri, Eric Greitens, announced last week that Missouri will no longer discriminate against religious organizations in the evaluation of grant applications, including applications for improvements like the resurfacing of outdoor playgrounds. That sounds as though it obviates the need for a court decision, since the change in policy has in effect decided the matter in the church’s favor. But neither side apparently wishes for the Supreme Court not to reach a ruling, the one side fearing a change back to the earlier policy under some future administration, and the other side—in effect defending a state policy that no longer exists—feeling themselves nobly fighting to maintain the traditional separation between church and state. This, is, however, hardly a question just for Missourians to worry over.

To understand the larger picture here, it’s necessary to know something about the so-called Blaine Amendment. This goes back a long ways. In 1875, President Ulysses S. Grant called for a constitutional amendment that would formally prohibit the federal government from using public money to fund “sectarian schools,” by which expression he meant non-public schools run by religious organizations. Shortly after that, Congressman James G. Blaine, a Republican from Maine, proposed just such an amendment. It was, to say the least, contentious. Congress, in fact, was split: the bill passed in the House of Representatives by a whopping 173 votes, but failed to clear the two-thirds majority in the Senate necessary for a proposed amendment to be sent to the states for ratification.  There is, therefore, no specific constitutional amendment that prohibits the use of public money to fund religious schools.

But on the state level, things were and are different. In the wake of the failure of the Blaine Amendment on the federal level, all but ten of the states approved similar amendments to their own state constitutions. (For the record, the ten are Arkansas, Connecticut, Maine, Maryland, New Jersey, North Carolina, Rhode Island, Tennessee, Vermont, and West Virginia.) And most of those amendments remain in effect to this day. An effort to get rid of the "Blaine" amendment in Florida in 2012, for example, failed, as have similar efforts over the years in New York, Michigan, Oregon, Washington, Alaska, and Massachusetts. Only one state, Louisiana, had such an amendment once but doesn’t now, but that didn’t come about as the result of a successful effort to repeal the law but rather by the adoption in 1974 of an entirely new state constitution. As far as the Missouri playground goes, then, it is in a state that has a “Blaine” amendment in its constitution and that theoretically prohibits the state from approving the expenditure of public funds for improvements to religious institutions, including schools.

Judging the matter from where I personally sit and look out at the world is complicated.

On the one hand, the children who attend the preschool in the Trinity Lutheran Church are citizens of Missouri whose parents pay the taxes that fund the government’s initiatives on behalf of the state’s citizenry, including its children. So, you could argue, why shouldn’t they benefit from a program designed neither to foster religion in general nor to promote any specific kind of religious observance, but merely to make some of Missouri’s children a bit safer when they play outdoors? When put that way, it sounds more than reasonable for the church to get its grant! On the other hand, though, the arguments against using public money to redo the surface of that playground also sound cogent to me: by not extending grant money to churches even when they operate in a way that does not specifically promote religion, Missouri is—or, rather, was—guaranteeing that none of its citizens would end up indirectly breaching the traditional war between church and state by being forced to see their tax money funneled to religious institutions that are traditionally supposed in our country not to rely on public funds.  It’s also interesting to me that none of the authors of any of the essays and articles I’ve read in the last week about this topic appears to know much about preschools…or at least not enough to wonder out loud if it is conceivable that a preschool or a daycare run by a church does not teach religion to the children enrolled there. We have a preschool at Shelter Rock and we certainly do our best to teach the boys and girls about our festivals, our rituals, and the basic tenets of our faith as part of the educational program we offer. Are we supposed to imagine that the programming at the church’s preschool does not teach, thus promote, Christianity at all? Not a single Bible story? Not a tiny Christmas tree? I don’t think so!

Related to all of this—and not even in a particularly subtle way—is the whole question of parochial school vouchers.

For all the years Joan and I lived in British Columbia, we found it natural for the province—the Canadian equivalent of the state—to pay for the secular education of children in Jewish day schools and other parochial settings, thus leaving their parents’ tuition payments to cover the costs connected with the specifically religious instruction also offered by the school. This arrangement is not at all contentious: British Columbians are all used to the idea that it only makes sense that the children of all citizens who pay their taxes receive the benefit of a free secular education, not just those who send their kids to schools run by the province and not by religious societies. (Why this only applies in some provinces is one of the mysteries of Canadian life, one with roots in the original efforts of the nation’s founders to bring Quebec into the original confederation in 1867. Perhaps I’ll write about that some other time.) And it’s not a bad arrangement at all: all children are served, all taxpayers receive some bang for their buck, and the province plays no role in the religious education of the children in parochial schools.

Here, on the other hand, the wall between church and state is supposed to be impenetrable and fully opaque. The siren call of tuition vouchers—in effect, the imposition of the Canadian system on the American one—is more than seductive…surely, we would all like nothing more than for day school education to cost less, ideally dramatically less, and thus become accessible to larger numbers of children! Could it be possible for the government to underwrite the cost of children’s secular education without breaching the wall between church and state? That, and not whether there should be such a wall in the first place, is the right question for our Jewish community to be asking.

I know from first-hand experience that such an arrangement can and does work in B.C. But it is also true that, at least in my opinion, no good can ever come to the Jewish community from any effort to breach the wall meant by our Founders to keep the spiritual and religious lives of Americans completely away from government control. We have all made our peace with the petty chinks in that wall that characterize American life at its least inclusive: a calendar of federal holidays that specifically includes Christian festivals, the almost universal presence of Christian symbols in post offices and other governmental venues in the weeks leading up to Christmas, the apparently annual White House seder (I’ll write about my strongly negative feelings in that regard on some other occasion), federal postage stamps celebrating the religious holidays of some faiths (including our own) but not others, and the use of Bibles as part of the oath-taking ceremony in court and in public investiture ceremonies, including the presidential inauguration. (To be fair, not every president has taken the oath of office with his hand resting on a Bible. But only John Quincy Adams, Franklin Pierce, and Theodore Roosevelt chose not to do so.)  We can and do live with all of that. But diverting public funds to underwrite church-run schools, daycare centers, youth groups, senior centers, etc., is in a different category entirely and is not something to which we should quietly acquiesce.

The Canadian system may well be something we could and should consider. But, in the end, the question is whether that could be done without weakening the wall our founders erected between church and state, which consequence will never be in our best interests. We are a tiny people who constitute less than 2% of the population in these United States. There are ten times as many American Catholics, and almost twenty-five times as many American Protestants, as there are American Jews. It’s true that we occupy a much larger place in the American psyche than our numbers would appear to justify. But, in the end, we are a small minority that flourishes precisely because the government keeps out of religious affairs and leaves us to chart our own course forward as we see fit. It will always be in our best interests to maintain that specific aspect of the status quo. The Supreme Court should not work at cross-purposes with our founders’ clear vision of not only a division between church and state, but an ironclad wall between the two.