Separation Anxiety: Church, state and the survival of Catholic schools

The textbook wars in Texas, which erupted over how religion, creationism and the religious origins of the American Republic should be presented in public school social studies classes, positioned a majority on the State Board of Education against critics both on and off the board. The two groups shouted at each other across a cultural ravine. The critics yelled “separation of church and state”; the board majority cheered for a “Christian nation.”

Catholics for the most part have little to contribute to that particular debate. Catholic public policy on education is largely pragmatic, focused on obtaining as much governmental assistance for parochial schools as possible. For Catholics, a people who had to form their own schools to protect their beliefs and culture and then were denied all public assistance for their schools, the pragmatic approach is understandable. Yet as a major sponsor of education in the United States, the church needs to speak with a clearer voice not merely about textbooks, but about educational policy.

A Tired Ideology

With regard to ongoing church-state relations, neither the separationists nor the Christian nation advocates have much to offer. The tired ideology of separationism subverts the First Amendment, which deals with one entity, the state (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”). Yet separationists introduce two entities, the church and the state, and confer on the state the power to separate each into its proper sphere. The power to separate is the power to control. For more than a millennium Europeans struggled to determine the proper boundary between sacred and secular powers. The framers of the Constitution and the first Congress tried to avoid that problem by creating a limited, secular state with no control over religion.

The First Amendment, therefore, does not apply to the church, and religious bodies cannot violate it. A government with no jurisdiction in religion cannot establish religion or impose beliefs or religious devotion on its citizens. Separationists return America to the historic problem that plagued Europe by defining a boundary between the two powers and granting government authority to maintain that boundary. In its important 1971 decision, Lemon v. Kurtzman, for example, the U.S. Supreme Court ruled that the “principal or primary effect” of a law “must be one that neither advances nor inhibits religion.”

What aids or inhibits religion, however, is a religious question outside the jurisdiction of government, reserved to citizens and believers. Government is supposed to evaluate laws according to their impact on the state, that is, whether they involve the government in matters beyond its jurisdiction, not in terms of their influence on religion and the church. Yet almost every rule the Supreme Court has enunciated over the past 60 years for evaluating church-state issues addresses essentially religious criteria: what aids, hinders or is neutral in religion; what is “purely” or “completely” secular; whether colleges are “pervasively sectarian.” In allowing the government to second-guess believers about their own religion and by endowing judges with authority to evaluate religious matters, the court restored to government the very power the First Amendment took away.

The Nonpreferential Option

Separationists now hold that the criterion for evaluating secular laws regarding church and state is whether they aid religion, and Christian-nation supporters accept the separationists’ fundamental misassumption. While the separationists would prohibit all government aid to religion, however, Christian-nation supporters would forbid only “preferential aid” and would allow purportedly evenhanded government support to all. This latter position merely recycles the “Protestant nation” approach of the 19th and early 20th centuries, however, which kept Catholic schools from receiving government support because Catholicism was sectarian, while Protestantism represented the supposedly nonsectarian common currency of American society.

The argument for nonpreferential government support of religion goes back to colonial times—especially in New England—when the Puritans’ Congregational successors argued that their governmental systems of church support were not establishments of religion because they included many different religious groups. Quakers and Baptists then and Catholics later knew from experience that the nonpreferential argument was a ruse for supporting the religion of the majority.

An interpretation of the First Amendment that confines government to its secular, limited sphere is best for government and best for the church. The free exercise of religion means freedom for citizens from government jurisdiction or interference in matters beyond its own specified secular powers. The “Declaration on Religious Liberty” issued by the Second Vatican Council recognizes religious freedom as part of the dignity of the human person and outside the power of government. It does not envisage government as having power to define the realm of the church and to construct a figurative “wall” to confine it within a government-assigned sphere.

In its First Amendment rulings the Supreme Court has not followed its rule of evaluating laws on the basis of whether they aid religion. It could not. The “not aiding religion” standard on education is awash with contradictions. Were the court to apply that test strictly, it would have to declare parochial schools unconstitutional because, by accrediting parochial schools, government aids Catholicism enormously. Churches also benefit from fire and police protection and many other services of civil society. To its credit, the court has upheld many practical aids to religious schools—government-funded textbooks, computers, remedial aid—all matters that can be supervised and evaluated by government agents without involving them in religious decisions.

The ‘No Aid to Religion’ Myth

Although the Supreme Court rarely adverts to the purported “wall of separation between church and state” language to justify its decisions, that image tends to dominate discussion of the First Amendment in the media and among Americans generally, including Catholics. The “wall” metaphor has proved meaningless, since no one can define or describe it. Its proponents attempt to mitigate that problem by inflating the metaphor into a “principle.” Yet it is not a principle.

The “no aid to religion” myth has resulted in the creation of a Dickensian body of legal casuistry. And the disconnect between the rhetoric of the Supreme Court and the practical outcomes of its decisions has generated a thoroughly convoluted body of jurisprudence that has deprived citizens of a reasonable explanation of their most basic right of religious liberty. In the 1947 case that initiated the modern controversies about government assistance to religious schools, Everson v. Board of Education, the court’s rhetoric advanced the “no aid” rule, but its decision aided Catholic schools anyway by upholding the reimbursement of parents for the cost of transporting their children to the schools.

The court can bring its legal arguments into harmony with the societal outcomes of its decisions by acknowledging that the First Amendment confines government to secular matters within its jurisdiction and that the evaluation of secular laws using religious criteria is beyond that jurisdiction. Indeed, in its actions the court has repeatedly had to fix the consequences of its rhetoric. In Good News Club v. Milford (2001), for example, the court required public schools that opened their classrooms for community use to allow religious groups to participate, thereby aiding religion but without involving public authorities in religious decisions.

While the First Amendment prohibits government-sponsored religious exercise, the separationists go much further and attempt instead to banish all religious practice from public places. Repeatedly the court has upheld the right of citizens and groups to exercise their religion freely in government-controlled areas, a right that certainly aids religion. Religious groups may use public facilities, parks, school classrooms and university centers for religious gatherings, and students can gather on public school property for prayer. None of those involve government sponsorship of or jurisdiction in religious matters, but they all aid religion.

Restoring the First Amendment

If the nation finally embraced the idea that government has no power in religious matters, how would that affect Catholic schools? Catholic or Catholic-sponsored schools might restructure themselves in new ways. For example a Catholic-sponsored charter school might receive complete funding from government with the understanding that the school would also be entirely subject to public policy and control. Schools supported by vouchers or other government grants might operate as Catholic-sponsored schools but with limitations on the practice or teaching of religion. The nature of these limitations is now being worked out by courts at the state and federal level. Traditional Catholic schools could continue to receive public school textbooks and other assistance that does not involve government in making religious decisions.

But government cannot be in the business of deciding whether teachers are living or teaching in accord with the beliefs and standards of a religion. If, as the bishops wrote in Renewing Our Commitment to Catholic Elementary and Secondary Schools in the Third Millennium (U.S.C.C.B., 2005), “faith and culture are intertwined in all areas of a school’s life,” then the church, not the government, will have to fund such schools substantially and pay their teachers.

Also, if the church is to play a significant role in the general reform of education, it will need to clarify its understanding of the relationship between Catholic education and government. Currently the church sponsors different kinds of schools, such as traditional Catholic schools and voucher-assisted schools. The latter schools are not controlled by church authorities in the traditional sense. They may not discriminate on the basis of religion and, in the words of the Supreme Court, “are required to accept students in accordance with rules and procedures established by the state superintendent.”

The church rightly supports the call for choice for all parents in the education of their children, but such a system also presents a set of choices for the church to make. Catholic schools can continue to accept public support, although, in principle, the more public funds a school receives the more it must conform to public policy and control. As the latest health care and abortion debates illustrate, government funds cannot be transformed into something else by calling them vouchers.

In the future, therefore, the church should avoid associating itself with two positions: that laws should be evaluated on the basis of whether they aid religion (which I have discussed as the “no aid to religion” myth) and that the government may assist all religions equally. In 19th-century America, many public schools were supposed to be nonsectarian and equal in their treatment of all religions. That, however, was not the experience of many Catholics who attended those schools. Instead, Catholics had to form their own parochial schools—a reminder that supposedly evenhanded government aid to religion is preferential and accrues to the benefit of the dominant religion or religions in society.

A secular government is not by definition anti-religious. But a secularist state that attempts to control the church (or any religion) by separating it into a government-determined sphere in relation to the state certainly is anti-religious. By regaining an appreciation of the First Amendment as a restriction on government, not on religion, the church can articulate a more vigorous public policy. By engaging in a realistic evaluation of the impact of public assistance on the religious mission of schools, the church may choose, on the one hand, to accept greater government control for more public aid for some schools or, on the other, to forgo certain government assistance in return for a greater degree of management over the religious nature and mission of other schools. A better understanding of the First Amendment and the limits it places on government will enable the church to move beyond the ad hoc and opportunistic approach that has dominated discussion of public assistance for Catholic schools for more than six decades. It will also enable the church to match in the future the enormous contribution to American education it made in the past.