Vouchers (Again) And The First Amendment

I was asked to speak to the Shepherd’s Center at North United Methodist Church about  vouchers and Separation of Church and State. Here’s the speech I delivered. Warning:  longer than my usual posts!

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I was asked to talk today about the relationship of the First Amendment’s religious liberty clauses—clauses which, when read together, establish America’s Separation of Church and State—to the nation’s wildly expensive and expanding school voucher programs.

That relationship is key to understanding the overarching threat posed by voucher programs. There are many problems with these programs, and I frequently rant about them on my blog, but the threat to the First Amendment is far and away the most serious.

The exercise of religion requires that each person follow his or her own conscience.  Since opinions and beliefs can be shaped only by individual consideration of evidence that a given individual finds persuasive, no one can really impose opinions on anyone else– government can only force outward obedience to any particular religious tenet. That realization led the nation’s Founders to decree that government should be—to use James Madison’s term– “noncognizant” of its citizens’ religions. Madison believed that government simply had no jurisdiction over religion. He, Jefferson and other Founders believed that a just state is required to be blind to religion–that government should not use religion to classify citizens and should neither privilege nor penalize citizens on the basis of religion.

From the earliest days of the American colonies, separating Church from State was seen as an important protection for both government and religion. Let me just begin this discussion with some history that I hope illuminates that assertion.

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator, as far as we know, of the phrase “a wall of separation”— a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed on the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Did some people living at the same time as Founders like Jefferson and Madison and religious figures like Leland think otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. The instrumental argument holds that public expression of religion changes behavior, and the ceremonial justification says public prayers don’t amount to establishment because they are just meaningless ceremonies meant to add solemnity to occasions.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is the same justification given for efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently won’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography.

The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And most school shootings haven’t occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home.

Historically, a large percentage of America’s persistent arguments over separation of church and state have focused on the nation’s public schools. We’re seeing this mirrored in the current “anti-woke” efforts to ban books in public school libraries; evidently, a significant number of Americans are fixated on shielding children from contact with beliefs of which they do not approve—and that fixation is typically rooted in religion.

The courts consistently ruled against efforts to circumvent the First Amendment by bringing prayer and other religious observances into public school classrooms, so proponents of religious indoctrination found a workaround– and educational vouchers were born. (In all fairness, many early proponents of vouchers were persuaded by arguments that private schools were doing a better job—that children “trapped” in substandard public schools would benefit. Subsequent research has proved those arguments wrong, but I don’t mean to suggest that every voucher proponent wanted public money for religious education. Many did, but others just wanted to destroy the teachers’ unions.)

Predictably, opponents of early voucher programs raised both First Amendment and state constitutional concerns, arguing that the use of public funds to pay tuition at religious schools violated both the First Amendment’s Establishment Clause and state-level prohibitions known as “Blaine Amendments.” The Supreme Court considered those First Amendment arguments in 2002, in a case called Zelman v. Simmons-Harris. That case challenged an Ohio voucher program in place in Cleveland. In 1999 and 2000, 82% of the schools participating in the Cleveland program were religiously affiliated, and 96% of the students using the vouchers were enrolled in one of those religious schools. Both the District Court and the Court of Appeals had ruled for the parents who were challenging the program; however, the Supreme Court reversed, accepting the argument that the vouchers weren’t payments to the schools, but to the parents, whose choice of religious schools was made freely and voluntarily, and that as a result, the vouchers could not properly be characterized as tax support for the religious schools. Since the choice of school was made by the parents, and the program’s official goal was secular—it was characterized as a program to allow low-income children to escape a failing school system– the Court held that the voucher program didn’t run afoul of the Establishment Clause.

And we were off to the races.

State courts, including the Indiana Supreme Court, have largely adopted the logic of the Zelman decision, and have allowed voucher programs to operate despite state constitutional provisions forbidding the payment of state tax dollars to religious institutions. The Indiana Constitution has one of these provisions, commonly called “Blaine Amendments.”  They were named for Congressman James Blaine, who sponsored a federal constitutional amendment in 1875 that would have forbidden public funding of religious schools. Blaine’s amendment was seen as an effort to prevent government from supporting Catholic schools—schools that had originally been established in response to Protestant bible-reading in public school classrooms.  Blaine’s effort at a federal amendment failed, but thirty-eight states subsequently added those provisions to their state constitutions. In sixteen states where Blaine Amendments seemed likely to preclude judicial approval of voucher programs, so-called “neo-vouchers” have used tax credits to circumvent the problem; the subsidies have been deemed “tax reductions” rather than direct spending. Arizona is the most prominent state employing this tactic; its Supreme Court upheld the state’s “tax credit scholarships” in 1998. In two states, Massachusetts and Michigan, both vouchers and neo-vouchers have been held to violate those states’ constitutions.

On my bIog, I’ve posted numerous times about multiple ways advocates of privatization and “choice in education” have contributed to the hollowing out of America’s civic structure.  “Choice” sounds great. Providing citizens with a wide freedom of choice–of religion, politics, lifestyle– is quintessentially American. The problems occur when institutionalized choices promote division and undermine civic cohesion.

In far too many communities today, the “educational choice” being offered is the opportunity to shield one’s children from intellectual and cultural diversity. Vouchers provide parents with tax dollars that allow them to insulate their children from one of the very few remaining “street corners” left in contemporary American society. Whatever their original intent, as vouchers work today, they are mechanisms allowing parents to remove their children from public school classrooms and shield them from classmates conveying information incompatible with those parents’ beliefs and prejudices.

In virtually all states with active voucher programs, including Indiana, well over 90% of participating schools are religious, and a disproportionate number of those are fundamentalist Christian schools teaching bogus history and creationism rather than science.

Several academic studies and media outlets have reviewed the textbooks used in those schools. One history textbook exclusively refers to immigrants as “aliens”. Another blames the Black Lives Matter movement for strife between communities and police officers. A third discusses the prevalence of “black supremacist” organizations during the civil rights movement, and calls Malcolm X the most prominent “black supremacist” of the era.

The media continues to report on acrimonious battles in legislatures and boards of education about how issues of race and equity are handled in public school classrooms, but it has largely ignored the education provided by private schools, thousands of which have been excluding diverse voices and teaching biased versions of history for years.

The Guardian is one of the few media outlets that has reviewed the textbooks currently used in thousands of private religious schools. These are schools that receive tens of thousands of dollars in public funding every year. Those textbooks downplay descriptions of slavery and ignore its structural consequences.  The report notes that the books “frame Native Americans as lesser and blame the Black Lives Matter movement for sowing racial discord.”

While we do read about Americans fighting over wildly distorted descriptions of Critical Race Theory and public school “indoctrination,” the Guardian article pointed out that there has been virtually no attention paid to the curricula of private schools accepting vouchers. As the article notes,

“Private schools, unlike public ones, receive little oversight or restrictions when it comes to curriculum. In truth, thousands of private schools are currently teaching history through a racially biased lens.”

The Guardian reviewed dozens of textbooks produced by the Christian textbook publishers Abeka, Bob Jones University Press and Accelerated Christian Education, three of the most popular textbook sources used in private religious schools throughout the US. These textbooks describe slavery as “black immigration”, and say Nelson Mandela helped move South Africa to a system of “radical affirmative action”.

The Abeka website boasts that in 2017, its textbooks reached more than 1 million Christian school students. The Accelerated Christian Education website claims its materials are used in “tens of thousands of schools.” One of its textbooks still refers to the civil war as the “war between the states,” and has a section titled “Black immigration” that characterizes the slave trade as “sometimes unwilling immigration.”

With respect to Reconstruction, the Accelerated Christian Education textbook contained the following paragraph:

“Under radical reconstruction, the south suffered. Great southern leaders and much of the old aristocracy were unable to vote or hold office. The result was that state legislatures were filled with illiterate or incompetent men. Northerners who were eager to make money or gain power during the crisis rushed to the south … For all these reasons, reconstruction led to graft and corruption and reckless spending. In retaliation, many southerners formed secret organizations to protect themselves and their society from anarchy. Among these groups was the Ku Klux Klan, a clandestine group of white men who went forth at night dressed in white sheets and pointed white hoods.”

Huffpost has reported that Christian textbooks used in thousands of schools around the country teach that President Barack Obama helped spur destructive Black Lives Matter protests, that the Democrats’ choice of Hillary Clinton in 2016 reflected the party’s focus on identity politics, and that President Donald Trump was the “fighter” Republicans needed. The Huffpost analysis found that language used in the books “overlaps with the rhetoric of Christian nationalism, often with overtones of nativism, militarism and racism as well.” One scholar was quoted as saying that, as voucher programs have moved more children into these schools, Christian Nationalism has become more mainstream.

Unsurprisingly, since most of these schools refuse to admit gay children or the children of same-sex partners, the books were also biased against homosexuality and same-sex marriage.

I’m clearly not a neutral observer, but I don’t think that science denial, bogus history and homophobia are the best way to prepare students for life in contemporary American society.

Worse, multiple academic studies confirm that these vouchers that have increased religious and racial segregation have done that damage without improving academic performance. Back in 2018, The Wall Street Journal –hardly a leftwing publication–analyzed data on Milwaukee’s program, the nation’s oldest, and found that the city’s 29,000 voucher students, “on average, have performed about the same as their peers in public schools on state exams.” Other studies have found voucher students lagging behind similar students attending public schools.

Meanwhile, in Indiana, which has one of the nation’s largest voucher programs, public schools are struggling to perform without adequate resources, and underpaid teachers are leaving in droves.

The U.S. Constitution gives parents the right to choose a religious education for their children. It does not impose an obligation on taxpayers to fund that choice.

Back in 2005, I wrote an article for an academic journal about the privatization of education, titled Privatizing Education: The Liberal Democratic Idea, Constitutionalism, and the Politics of Vouchers. I’ll conclude this by quoting one of the paragraphs from that early article:

One of the largest and most active blocs working for vouchers are the cultural conservatives of the Christian Right. Groups like the Christian Coalition and Citizens for Excellence in Education (CEE) might at first blush seem very strange bedfellows for libertarians, with whom they share little ideological ground. And it is certainly true that their motives for supporting school choice have little to do with markets and much to do with their views on morality. Many believe, with Robert Simonds of CEE, that “Atheism and many perverted forms of immorality are being forced upon all public-school students, not just Christian students.”

Theodore Lowi has linked the politicization of the Christian Right to the nationalization of the Bill of Rights and especially the application of the First Amendment to the states. Even a cursory reading of their literature will confirm that anger with current Establishment Clause jurisprudence, particularly rulings against officially sanctioned school prayer, is the source of much Christian Right hostility to public schools and support for school choice.

There are many, many other problems with vouchers, but the negative effect on a pluralist democracy is perhaps the most significant–and least recognized.

Thank you.

Comments

Appalling

In a comment a couple of days ago, Sharon referenced a truly appalling situation in Floyd County, Indiana. She’d received a request for a donation from the Indiana Sheriff’s Association. The newsletter accompanying the request profiled a program instituted by the sheriff of Floyd County: Residents Encountering Christ. The newsletter described a 3 day retreat, reporting that Sheriff Bush “went in and talked to inmates, sharing his faith and encouraging them in theirs. In all, 41 inmates were baptized during this event. Local news media took note of the program’s success.”

As Sharon wrote, “I’m not sure which I find more appalling, that a law enforcement officer uses his position of power to proselytize to inmates or that local ‘journalists’ consider baptisms achieved under these conditions to be  ‘a success.'”

I am equally appalled.

Law enforcement officers assume an obligation to abide by the Constitution. There is a very lengthy string of  legal precedents confirming the lawlessness–and cluelessness– of Sheriff Bush’s behavior. 

That cluelessness extended to the news coverage.According to the local News and Tribune (paywall),

On July 24th, 41 Inmates at the Floyd County Jail that volunteered to take part in Residents Encounter Christ (REC) were baptized. What a powerful moment to witness! 

One has to be truly naive–or blissfully unaware of the reality of power relationships–to believe that inmates “volunteered.” (As numerous women can attest, when someone with authority to make your life miserable “requests” some “accommodation,” it’s hard to refuse.) 

There is absolutely no legal argument supporting Sheriff Bush’s appalling conduct. Numerous Supreme Court opinions have echoed Justice Black’s words in Engel v. Vitale:

The constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

That case considered the constitutionality of a rule promulgated by the New York State Board of Regents, authorizing public schools to hold a short, “voluntary” prayer at the beginning of each school day. The Court held that state laws permitting prayer “must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs.”

It is true–and very troubling–that the current Supreme Court has eroded previous First Amendment jurisprudence. But even those regrettable decisions don’t come close to making Sheriff Bush’s activities permissible. Perhaps someone should share these paragraphs from Justice Black’s decision with the Sheriff.

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power.

The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say – that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

Sponsorship of religious activity by a government official is unconstitutional.

Floyd County has a Sheriff who is either ignorant of the Constitution or willing to ignore it. In either case, he’s unfit for public office.

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What It’s All About

Remember that old song, “What’s it all about, Alfie?” The melody and refrain were running through my mind as I read Tuesday’s “Letter from an American” from Heather Cox Richardson.

One paragraph in that Letter in particular really summed up the contemporary American–and global–dilemma. Forget, if possible, the daily eruptions that are evidence of a diseased polity–the crazed “representatives” doing anything but “serving” in Congress; the almost daily mass shootings; the bizarre behaviors of  state legislatures (and not just in Florida and Texas)…and the multitude of other examples.

Focus instead on the underlying dilemma, an existential contest that Richardson says is between liberalism and autocracy but might just as aptly be identified as a contest between good and evil. She began by reminding readers of the Trump agenda that plays to the GOP/MAGA base.

He offered its members the anti-Black, anti-immigrant, and antiabortion measures it craved, in exchange for utter commitment to his leadership. His drive for authoritarianism dovetailed with a religious movement to create a new ideology for the Republican Party, one that explicitly rejects democracy.

That argument, articulated most clearly by Hungarian prime minister Viktor Orbán, is that the secular principles of liberal democracy—equality before the law, free speech, freedom to go to church or not, academic inquiry, a free press, immigration, companies that can make decisions based on markets rather than morality—destroy virtue by tearing down the sexual and religious guardrails of traditional society. In order to bring that virtue back, right-wing thinkers argue, the government must defend religion and self-sacrifice (although it’s hard to miss that they’re looking for other people to make those sacrifices, not themselves). 

Last week, on May 4 and 5, the Conservative Political Action Conference met in Budapest for the second time, and once again, Orbán delivered the keynote address. The theme was the uniting of the radical right across national boundaries. “Come back, Mr President,” Orbán said of Trump’s 2024 presidential bid. “Make America great again and bring us peace.” Orbán claimed his suppression of LGBTQ+ rights, academic freedom, and the media is a model for the world. 

(Un)representative Paul Gosar (R-AZ) called Orban, “ a beacon.” Richardson reminds us that the Americans who celebrate this ideology are those who routinely attack immigrants, LGBTQ Americans, the media, reproductive rights, and education.

Florida, led by governor Ron DeSantis, has been out front on these issues, but other Republican-dominated states are following suit. Eager to stay at the head of the “movement,” Trump recently claimed that universities are “dominated by marxist maniacs & lunatics” and vowed to bring them under control of the radical right. “He will impose real standards on American colleges and universities,” his website says, “to include defending the American tradition and Western civilization.” 

Needless to say, DeSantis–and Abbott, and the culture warriors in Red State legislatures very much including Indiana’s–have a very distorted picture of American tradition and Western civilization, one diametrically opposed to the expressed values of the nation’s founders.

The decision to hold the Right-wing CPAC convention in Budapest–for the second time!–is chilling enough, but the fact that Diego Morales–Indiana’s Secretary of State not only attended that gathering, but spoke at it, was a reminder of just how firm a grip Indiana’s MAGA Republicans have on the state. Morales joined Tucker Carlson (via video), unsuccessful Arizona gubernatorial candidate Kari Lake, and other members of American and international Right. 

I’ve previously written about Morales, an election denier who should never have won his race against an infinitely superior candidate, Destiny Wells. (When he was nominated, James Briggs–then of the Indianapolis Star–called him “so broadly unacceptable that the selection must be setting some kind of record for political ineptitude.” Briggs evidently forgot that, in Indiana, unacceptable is now synonymous with “Republican.”)

Morales wraps himself in “conservative” rhetoric, but today’s Right is anything but traditionally conservative. I’m old enough to remember when “conservative” meant conserving the liberties protected by the Bill of Rights and the principles that Richardson correctly labels as inherent in liberal democracy—”equality before the law, free speech, freedom to go to church or not, academic inquiry, a free press, immigration, companies that can make decisions based on markets rather than morality.”

Those principles are what next year’s elections are all about. And as I observed in the book Morton Marcus and I recently published, I am reasonably confident that most American women (and a significant number of men who care about us)  will go to the polls to endorse those foundational principles, joined by voters disgusted by gun fetishists’ mischaracterization of the 2d Amendment, and by still others fed up with Republican refusal to make the rich pay a fair share.

That, “Alfie,” is what it’s “all about.”

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About That Wall Of Separation

According to the New York Times, Eric Adams, current Mayor of New York City, opened a recent talk with an old chestnut:“When we took prayers out of schools, guns came into schools.” Not only is that presumed cause-and-effect demonstrably false, Adam’s speech–in which he dismissed separation of church and state–betrayed an appalling lack of constitutional knowledge (and provoked enormous criticism).

Back in 2004, I posted “Why Separation is Good for Church and Necessary for State.” It seems appropriate to repeat that explanation, and remind ourselves that religious “culture war” issues were already hot some twenty years ago. (Warning: this was originally a speech, so it’s longer than my usual daily post.)

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I’ll start with James Madison, my favorite Founder and the one whose views on religious liberty dominated the Constitutional Convention. Madison based his understanding of natural rights and the role of the state on Locke’s social compact. As one scholar has noted, because the exercise of religion requires that each person follow his own conscience, it is a particular kind of natural right, an inalienable natural right. Since opinions and beliefs can be shaped only by individual consideration of evidence that that particular individual finds persuasive, no one can really impose opinions on any one else. Unlike property, or even speech, religious liberty cannot be sold, or alienated, so it does not become part of the social compact. The state must remain noncognizant of its citizens’ religions–meaning that it simply has no jurisdiction over religion. A just state must be blind to religion. It can’t use religion to classify citizens, and it can neither privilege nor penalize citizens on account of religion.

If you listen to the rhetoric around church-state issues today, you would never know that the “wall of separation” contemplated by Jefferson and Madison was seen as an important protection for both religion and government. But it was—and for some very sound reasons. 

This view of Madison’s is a far cry from the interpretation favored by some of our current Justices—an interpretation sometimes called “nonpreferentialism.”

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator of the phrase “a wall of separation”—a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed upon the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Were there people who lived at the same time as Madison and Leland who felt otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. They are sometimes called the instrumental argument, and the ceremonial justification.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.” A good example of the instrumental approach was offered by Tom Delay, right after the Columbine school shootings. DeLay said “I got an email this morning that said it all. A student writes, ‘Dear God, why didn’t you stop the shootings at Columbine?’ and God writes back ‘Dear student: I would have, but I wasn’t allowed in.’”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is exactly the same justification given for current efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently doesn’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography. The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And as Stephen Chapman noted in a column following DeLay’s comments, school shootings have not occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home: Paducah, KY, Jonesboro, ARK, and Littleton, CO.

The reason these proponents of government-sponsored prayer want government to make us pray is because they are convinced that in the absence of state coercion, we won’t. That’s why they object to non-mandatory, private baccalaureate services in lieu of prayer at high school graduations. Such baccalaureate services, which used to be the norm, permit meaningful prayer for those who wish to participate. So what’s the objection? Tellingly, it is that such services are voluntary—that those who “need” to prayer won’t come. The folks making this argument know what prayer is good for you and me, and are willing to use the power of the state to make us participate in a ceremony that includes that prayer.

The instrumental argument for supporting public religion and prayer is basically “religion is good for people, so the state should impose it.” The ceremonial defense of public religion is that it has no effect at all–that it’s meaningless. This is the argument that prayers at graduations and similar venues are merely “traditional” and “ceremonial.” People of faith—quite justifiably—find such characterizations deeply offensive. As a minister friend of mine used to say, he doen’t pray “to whom it may concern.” No religion I know of sanctions the notion that prayer is merely ceremonial, void of particularistic significance and useful only as an archaic (albeit charming) tradition.

The Founders of this nation believed that government neutrality in matters of religious belief—Madison’s noncognizance—was essential if government was to be seen as legitimate. They also believed that state neutrality was necessary if genuine religious sentiment was to flourish. You only need look at nations without a First Amendment to see how right they were; countries like England have seen state-sponsored religions degenerate into pleasant rituals without vitality; on the other end of the spectrum, nations like Saudi Arabia and Iran have employed the force of the state in the service of religious conformity. Both alternatives are instructive.

Let me just conclude these remarks by commenting on a couple of current manifestations of America’s religious culture wars: the President’s Faith-Based Initiative, and efforts to pass state and federal constitutional amendments banning same-sex marriage.

As many of you know, I recently completed a 3 year study of “faith-based” contracting— I think the questions raised by the President’s Initiative point to the wisdom of Madison’s insistence upon government noncognizance of religion, and to the accuracy of Leland’s observations.

Charitable Choice and the President’s Faith-Based Initiative are efforts to increase the numbers of “faith-based” social service providers contracting with the state. In order to accomplish that, government agencies must first define religion, or “faith.” (We all saw how well that worked with conscientious objectors.) I should note here, by the way, that the term “faith-based” is itself illustrative of the problem. I’m sure the phrase was intended to be more inclusive (and perhaps less alarming ) than the word “religion,” but it betrays an unconscious, and rather telling, bias. “Faith based” is a very Protestant religious concept. Catholicism and Judaism, among others, are “works based” religions.

Of course, government has contracted with religious organizations ever since it has provided social services, so the first question that arises is: How do the faith organizations the President proposes to recruit differ from Catholic Charities, Lutheran Social Services, the Salvation Army, and government’s many other long-time religious partners?

A much more troubling question comes next: Since the effort to recruit new faith partners has not been accompanied by additional funding for social services, it is hard not to see Charitable Choice as an effort to shift funds from one set of religious providers to another –presumably, from government’s traditional religious partners (who generally operate in accordance with applicable professional and constitutional norms) to more evangelical providers focused upon “personal transformation” of clients. If new FBOs do bid for contracts in any significant numbers, the competition for limited dollars will create precisely the sort of conflict among religious groups that the First Amendment was intended to avoid.

The First Amendment does not prevent government from doing business with faith organizations, but that doesn’t mean that any program run by a religious provider will pass constitutional muster.  There is a constitutionally significant distinction between programs that are offered by a religious provider or in a religious setting, and programs in which religious observance or dogma are integral to service delivery. Failure to understand that distinction invites the very mischief that so worried Madison and Leland.

Despite the rhetoric emanating from the White House, the question is not whether government should partner with religious organizations to provide social services.  It always has, and undoubtedly always will.  The question is “when are such partnerships appropriate and how should they be structured and monitored?”  Similarly, the question is not whether religious or secular organizations are better; it is “what organizational characteristics are most likely to predict successful program delivery?”
If there is one truism our study confirmed, it is that simpleminded confidence in the power of undefined “faith” is misplaced. No armies of compassion are rushing in to relieve government of its responsibilities for social welfare, and faith has not provided a short-cut to self-sufficiency.  As the head of one faith-based agency puts it, “Most poor people have all the religion in the world.  What they don’t have is job skills.” To which observation both Madison and Leland might have added: and government’s responsibility is limited to providing them with the job skills.

If the effort to portray “faith” as an important element in service delivery is misplaced, the war being waged against gays and lesbians is a frontal attack on two of the most fundamental principles of our constitutional system, equal protection of the laws and separation of church and state.

With all of the rhetoric about government needing to “protect” marriage, we sometimes forget that government cannot and does not sanctify marital relationships. Churches, Mosques and synagogues join people in religious unions; the state merely confirms those relationships for purposes of securing the legal incidents of that partnership status. If you are married in a civil ceremony, you have a civil marriage—meaning that the state recognizes your legal partnership for purposes of enforcing the obligations you have assumed.  Prohibiting state recognition of same-sex partnerships—many of which have, in fact, been blessed by a church or synagogue—denies gay couples access to 1008 legal rights that heterosexual citizens enjoy. Those include the right to be appointed as a guardian of an ailing or injured partner, the right to take family leave, the right to legally parent a non-biological child, and the right to half of the partnership’s accumulated property if the relationship dissolves. Same sex couples pay more taxes than married couples, because they aren’t entitled to spousal gift and estate tax exemptions and deductions. They can’t seek damages for a partner’s wrongful death. There are hundreds more—legal and civil rights enjoyed by any heterosexual married for two days or two months, but denied to gays who have been partners for 30 or 50 years.

The justifications for imposing these legal disabilities are virtually all religious, and rooted in the doctrines of some, but certainly not all, conservative denominations. Despite efforts to pretend there are secular policy concerns at stake, all one need do is look at the justifications offered to see their true nature:      

We are told that gays should not be allowed to marry because homosexuality is immoral. But all religions teach that rape and murder are immoral—and Indiana allows rapists and murderers to marry.
We are told that marriage and sex are for procreation. So where are the bills prohibiting marriages between old people and sterile people?
We are told that gay parenting is harmful to children, but there is absolutely no credible research confirming that harm.
We are told that recognition of gay unions will undermine the institution of marriage. But we are not told why that is so, and we were told the same thing about interracial marriage, and about allowing women to own property and vote.

At the recent rally in Indianapolis, the crowd was told that marriage is for biological parents and their natural-born children. Those of us with stepchildren we love every bit as much as we love our biological children, those who have adopted children they adore, found that characterization both inaccurate and offensive. 

We all understand that these measures are not efforts to protect families—they are efforts to privilege some families at the expense of others. They aren’t even about religion and morality—they are about whose religion, whose morality. That is why the issue is so important to so many of us who are not gay. It is because we know that when government gets the right to decide whose beliefs are acceptable, no one’s beliefs are safe.  

What happens when government imposes the religious views of some Americans on the rest of us?

First of all, government itself loses legitimacy, because it is acting contrary to the rule of law and norms of neutrality and equality. The rule of law requires that we constrain and limit the discretion of government officials. Every time we give those officials added discretion—to choose this religious service provider over that one, to send this welfare recipient to that religious program rather than this secular one—we increase the opportunity for abuse of discretion. We move further from the rule of law, and closer to the arbitrary exercise of power by man.  Furthermore, political conflict intensifies, making it more difficult for government to do the jobs it is supposed to do. If you doubt the accuracy of that observation, a quick look at Congress and the Indiana General Assembly should confirm the point.

Second, religious liberty is compromised, and with it, religion itself. Beliefs not freely chosen are by definition not authentic. The imposition of religious observances, or the passage of laws privileging religious beliefs, tends to increase the public’s skepticism about all religion.

Finally, society itself loses. Religious disputes are among the most bitter and divisive of conflicts. The current, highly contested political debate about “values” has been terribly corrosive of our national identity, and harmful to our sense of national purpose. We need to minimize the culture wars, not add fuel to the fire. The way to minimize conflict is to listen to the logic of James Madison and John Leland. The way to add fuel to the fire is to let the State make the religious beliefs of some Americans the law of the land.
 



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Christian Nationalism

I frequently inveigh against Christian Nationalism without explaining exactly what it is. In the wake of Marjorie Taylor Green’s recent declaration identifying herself as a Christian Nationalist, I decided I should be more explicit about what that label means–because it doesn’t simply indicate a religious identity.

As the Executive Director of the Baptist Joint Committee on Religious Liberty recently wrote,

Christian nationalism is a political ideology and cultural framework that merges Christian and American identities, distorting both the Christian faith and America’s promise of religious freedom. It relies heavily on a false narrative of America as a “Christian nation,” founded by Christians in order to privilege Christianity. This mythical history betrays the work of the framers to create a federal government that would remain neutral when it comes to religion, neither promoting nor denigrating it — a deliberate break with the state-established religions of the colonies.

Though not new, Christian nationalism has been exploited in recent years by politicians like former President Donald Trump to further an “us vs. them” mentality and send a message that only Christians can be “real” Americans.

An article in The Week pointed to the substantial role played by Christian Nationalists in the insurrection on January 6th. As one observer reported  “Crosses were everywhere that day in D.C., on flags and flagpoles, on signs and clothes, around necks, and erected above the crowd,”  Bible verses were plentiful in the crowd, and a number of rioters actually paused for prayer during the attack. One rioter recorded herself justifying her participation by saying  “We are a godly country, and we are founded on godly principles. And if we do not have our country, nothing else matters.”

A 2021 survey by the Pew Research Center identified 77 percent of Republican respondents as “church-state integrationists” who hold a variety of views “consistent” with Christian nationalism. That might be overstating things somewhat. A 2017 survey found that one-in-five Americans hold such views. The scholars at Political Behavior found that “support for the Capitol attacks is a minority position among any slice of the American religious landscape.” But they also noted that 17.7 percent “of white weekly churchgoers fall into the joint top quartile of justification of violence, Christian nationalist beliefs, perceived victimhood, white identity, and support for QAnon.” That percentage — while relatively small — “would represent millions of individuals.”

The article noted that Christian Nationalism is gaining an “increasing foothold ” in Republican politics. Greene and  Boebert are two of the more explicit proponents of Christian nationalism, but less well known members of the party are also adherents. “Doug Mastriano — a former Army officer who chartered buses to ferry protesters to Washington D.C. on Jan. 6, and who has declared the separation of church and state a “myth” —  is the GOP nominee for governor in Pennsylvania, and is now running a close race with his Democratic opponent.”

What is truly terrifying is that Christian Nationalism is being normalized. Republicans who shared the ideology  but previously denied the label are increasingly willing to admit to it: as the linked article notes, ” Marjorie Taylor Greene might have made news by openly embracing the term, but she might not be that unusual.”

As the Executive Director of the Baptist Joint Committee on Religious Liberty wrote,

I care about dismantling Christian nationalism both because I’m a practicing Christian and because I’m a patriotic American — and no, those identities are not the same. As Christians, we can’t allow Greene, Boebert or Trump to distort our faith without a fight.

We must speak loudly when our faith is used as a political tool, we must uproot it from our own churches and communities and we must form alliances with religious minorities and the nonreligious — who suffer the impact of Christian nationalism the most.

Religion, and Christianity in particular, has flourished in America not because of government aid or favoritism, but for the opposite reason: religion’s freedom from government control. Government involvement in religious affairs doesn’t aid the free exercise of religion. And as Christians, we are called to love our neighbors rather than make them feel unwelcome in their own country…

Christian lawmakers don’t need to erase their faith from politics. My fellow Baptist, Georgia Democrat Sen. Rev. Raphael Warnock, has modeled what it looks like for a pastor to serve in Congress without insisting on a privileged place for Christianity in law and society….

It’s not just Christian political leaders that need to do better, it’s all of us. Earlier this summer, I joined a group of prominent Christian leaders in launching the Christians Against Christian Nationalism campaign. More than 25,000 Christians have joined the campaign as we seek to elevate an alternative Christian public witness.

The Christian Nationalist takeover of one of America’s major political parties poses an enormous threat to us all.

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