Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. Richard W. Garnett (University of Notre Dame) submitted the following reflection, which we are delighted to publish here.
In 1947, the Supreme Court of the United States constitutionalized a metaphor taken from a constituent-service letter authored by Thomas Jefferson. When Jefferson, in his 1801 Letter to the Danbury Baptists, professed his “sovereign reverence” for the decision of the American people to constitutionalize church-state “separation,” he supplied what is for many the “authoritative interpretation” of the First Amendment’s Religion Clauses. “No metaphor in American letters,” Prof. Daniel Dreisbach has observed, “has had a greater influence on law and policy than Thomas Jefferson’s ‘wall of separation between church and state.’”
And yet, as then-Justice William Rehnquist observed in a prescient 1985 dissenting opinion, the “wall” metaphor is “based on bad history” and has “proved all but useless as a guide to sound constitutional adjudication.” The term “cooperation” points to a more promising path. The Constitution of the United States and the history, practices, and traditions of our political community, reveal and call for an appropriate “differentiation” between political and religious authority, that is, between “church” and “state.” They invite us not to search for a “wall” separating the two but instead for the appropriate terms of reasonable and productive cooperation in efforts to secure the common good and human flourishing.
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The American law of church and state is, to a large extent, the product of political and other struggles over education and, in particular, over the funding of education in Catholic schools. For a long time, the relevant legal doctrines could not be understood apart from American anti-Catholicism, nativism, and nationalism. For several decades in the mid-to-late Twentieth Century, these doctrines were constructed around the “wall of separation” metaphor; more recently, though, the conversation has become one about permissible cooperation.
During the first half of the nineteenth century, the development and rapid expansion of “common schools” coincided with – and was, in many respects, a reaction to – a dramatic increase in Catholic immigration. Catholic parents and leaders objected to the pervasive Protestant ethos of these schools and sought accommodations from curricular practices that they found burdensome on religious grounds, especially mandatory recitations from the King James Bible. While accommodation occurred in some places, elsewhere, Catholic children were punished when they refused to participate in these recitations.
When Catholics’ efforts to exercise “voice” failed, they turned to “exit.” As the fiery bishop of New York, “Dagger John” Hughes, explained at the time, the common-school practice of putting Protestant material “into the hands of our own children, and that in part at our expense, was … unjust, unnatural, and at all events to us intolerable. Accordingly, through very great additional sacrifices, we have been obliged to provide schools … in which to educate our children as our conscientious duty required.”
In the years that followed, equality-based demands for the public funding of Catholic schools increased; these demands also fueled new waves of nativism and conspiracy theories that Catholics were engaged in a concerted effort to destroy American democracy. In 1875, James G. Blaine, then Speaker of the U.S. House of Representatives, proposed an amendment to the U.S. Constitution prohibiting any public funds from flowing to “sectarian” schools. That anti-Catholic animus fueled this effort is widely accepted. While the federal Blaine Amendment narrowly failed to secure approval, Congress thereafter required several new states to adopt similar language in their state constitutions as a condition of statehood. Other states voluntarily amended their own constitutions and, eventually, thirty-seven states’ constitutions included “Baby Blaine” anti-aid Amendments.
Nativist organizations, including the Ku Klux Klan, wanted to go further. The Klan and allied organizations, including the Masons, joined movements for obligatory public schooling in several states. These efforts were ultimately successful in Oregon, which enacted a law mandating instruction in public schools in 1922. Three years later, in Pierce v. Society of Sisters, the U.S. Supreme Court held that the law violated the due process rights of both parents and private schools: “The fundamental theory of liberty upon which all governments in this Union repose,” the justices said, “excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”
The Pierce decision did not address the question whether the Constitution had anything to say about government assistance to parents seeking to exercise this fundamental right. However, and despite the battles over the public funding of Catholic schools in the nineteenth century, it is clear that local governments, states, and the federal government had, from the time of the Founding, financially supported private religious schools for a variety of reasons and in a number of ways.
For decades, these practices by and large flew under the federal constitutional radar. That changed with the Supreme Court’s decision in Everson. In that case, the Court considered an Establishment Clause challenge to a New Jersey law authorizing school boards to reimburse parents for the cost of transporting their children to private schools, including religious ones. Upholding the law, the Court made two significant moves that would shape future school-funding litigation: First, the Court “incorporated” the Establishment Clause, holding that it applied to state and local laws as well as federal ones. Second, employing the “wall of separation” metaphor, it held that the clause “requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.” Two decades later, in Board of Education v. Allen, the Court relied on this neutrality principle to uphold a New York program that lent textbooks to students attending religious schools, reasoning that the beneficiaries of the program were students, not schools.
While Everson and Allen took a relatively accommodationist approach to programs providing public benefits to children attending religious schools, the Supreme Court’s Establishment Clause doctrine took a strong “separationist” turn in the early 1970s. Importantly, in Lemon v. Kurtzman (1971), the Court established a three-part test to determine whether a law violated the Establishment Clause. In Lemon the Court concluded that the school-aid programs at issue violated the Establishment Clause due to the potential for excessive entanglement, and found that monitoring the secular content of instruction would require substantial, ongoing state oversight. Two years later, in Committee for Public Education & Religious Liberty v. Nyquist (1973), the Court used the Lemon test to invalidate a New York tuition reimbursement and tax benefit program for parents of private school students on the ground that the financial aid would “advance religion.”
Thereafter, the Court repeatedly held that a variety of public-benefit programs violated the Lemon test. For example, in Meek v. Pittenger (1975), the Court struck down a Pennsylvania program that provided instructional materials and equipment to religious schools while upholding only loaned textbooks. The Court reasoned that items like maps, films, and projectors could be diverted to religious instruction, making state aid impermissible. The incongruence of the books-but-not-maps reasoning led the late Senator Daniel Patrick Moynihan to quip, “But what about atlases?” In Wolman v. Walter (1977), partially invalidated an Ohio program that provided standardized tests and diagnostic services to religious schools. And in Aguilar v. Felton (1984), the Court held that the Lemon test prohibited states from using federal education funds to pay teachers in religious schools to provide supplemental tutoring to disadvantaged students.
Beginning in the 1980s, the Court gradually began to soften this this position, returning to the neutrality benchmark, especially when government aid reached religious schools indirectly through individual choice. In Mueller v. Allen (1983), the Court upheld a Minnesota tax deduction for educational expenses that benefited both public and private (including religious) school students. In Witters v. Washington (1986), the Court held that the Establishment Clause did not prohibit a state from permitting a blind student to use public funds to pursue a degree in ministry. In Zobrest v. Catalina Foothills School District (1993), it reached the same conclusion about a publicly funded sign language interpreter for a deaf child attending a Catholic school. And in Agostini v. Felton (1997), it allowed public school teachers to provide remedial instruction in religious schools under a federally funded program.
In 1995, two important things happened in the history of the parental-choice effort. First, Wisconsin expanded eligibility to participate in the Wisconsin Parental Choice Program – the nation’s first modern voucher program – to include religious schools. Second, Ohio enacted the Cleveland Pilot Scholarship Program, a modest means-tested program that also enabled participants to attend religious schools. Both of these programs were challenged on Establishment Clause grounds, and the Court ultimately reviewed the Cleveland case. In 2002, in Zelman v. Simmons-Harris, the Court upheld the Cleveland program, rejecting an establishment for two reasons: the program was both neutral toward religion and of “true private choice,” with public funds ultimately flowing to religious schools only as the result of parents’ independent choices.
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The law of religious-school funding in the United States today is that governments and religious actors may, and increasingly do, cooperate in providing education to children and, therefore, in promoting authentic human flourishing and development. It is worth nothing, though, what has not happened: It is not – at least, not yet – the law that equal treatment of state and non-state schools and education providers is required. True, a recent line of cases, starting with Trinity Lutheran, prohibits states from invoking extra-strict understandings of “separation” as a justification for discriminating against otherwise eligible religious schools in the context of school-funding programs. Still, governments remain free to adopt policies that, in effect, impose a financial penalty on the exercise of that right. A next step in the repairing of American religious-freedom law must be remedying this defect.