At a conference last fall on “Christians, Jews, and the Free Exercise of Religion” sponsored by the Institute on Religion and Public Life, one of the Jewish participants accused the major Jewish agencies of being anti-religious. After being sharply challenged, he retracted this grave accusation and retreated to the position that these agencies were “ambivalent” toward religion. The initial charge was nothing short of slanderous, and the subsequent modification, while less intemperate, was still troubling.
My own agency, the American Jewish Committee (AJC), was founded in 1906 with a mandate to protect the civil and religious rights of Jews. If it has been, in fact, no better than “ambivalent” toward religion, it would have been guilty of betrayal of the solemn trust of its founders. Actually it has been no such thing. What it has been through the years is a vigorous proponent of the free exercise of religion, not only for Jews, but for people of all faiths whose religious beliefs or practices were threatened.
The very first case in which the American Jewish Committee filed a legal brief in the U.S. Supreme Court carried the improbable name of Pierce v. Society of Sisters of the Holy Names of Jesus and Mary (1924). The AJC filed a brief in Pierce to challenge an Oregon law, inspired by the Ku Klux Klan, requiring all children to attend public schools. The real intent of the law was to put Catholic parochial schools out of business. Our members realized that the religious rights of Jews would only be secure if the religious rights of people of other faiths were equally secure. Hence, even though there were no Jewish parochial schools in Oregon at that time, AJC filed its brief. The Supreme Court struck down the law unanimously.
The Pierce case was but the first of innumerable instances in which the AJC has upheld religious rights, freedoms, and practices for people of all faiths. To cite but a few examples, in the 1943 case of West Virginia v. Barnette, AJC supported the right of Jehovah's Witness children, in accordance with their parents' religious convictions, to refuse to salute the hag in public school. In the 1963 case of Sherbert v. Verner, AJC upheld the right of a Seventh-Day Adventist to receive unemployment compensation benefits even though she had refused to accept employment requiring her to work on Saturday. In Wisconsin v. Yoder in 1972, AJC joined with other Jewish and Christian groups in supporting the rights of Amish parents to limit their children's education to the eighth grade. In the 1960 case of Gallagher v. Crown Kosher Supermarket, AJC supported a constitutional challenge by Orthodox Jews on religious liberty grounds to the Massachusetts Sunday closing law. In 1986, in the case of Witters v. Washington Department of Services for the Blind the AJC supported Witters in his claim for government vocational aid to the handicapped, which he had chosen to use for training to become a Christian minister. And, in that same year, in the case of Goldrnan v. Weinberger, AJC joined with the Christian Legal Society in upholding the right of an Orthodox Jew in the Air Force to wear his yarmulke indoors while on duty.
In light of all these endeavors and the many others like them, one wonders what prompted the accusation that the Jewish agencies, including the American Jewish Committee, are anti-religious. What is one to make of it? Presumably, it was motivated by the fact that the AJC, as well as most other Jewish organizations, generally opposes government aid to religion. The predominant view of the Jewish community is that all religions will flourish best if government keeps its hands off, neither to hinder nor to help them. Any religion that cannot flourish without governmental assistance, one might suggest, does not deserve to flourish. No religion should be beholden to government, but rather should be free to bear prophetic witness against government, if events so require. Most Jews believe, moreover, that government should not behave as if it is a church or a synagogue, that it should not be performing functions for its citizens that, in their rightful free exercise of religion, they are perfectly capable of performing for themselves without involving either the machinery, the property, or the tax dollars of government. That is why most Jews oppose government subsidy of schools whose chief reason for being is to propagate a religious faith, whether the schools are Jewish, Catholic, Lutheran, Hare Krishna, or whatever.
Many people, of course, who profess to support the principle of separation of church and state also support state subsidy of church—and synagogue—schools. They muster a number of arguments for their position.
1) Simple justice. Parents whose religious conscience precludes them from utilizing the public schools for which they pay taxes, and who are compelled by the state to provide a basic secular education for their children, are in effect taxed double when they also pay tuition for their children's secular education in their own denominational schools.
2) Free exercise of religion. This right, plainly guaranteed by the First Amendment, is an empty shell for parents who lack the necessary funds to implement their religious convictions, which require that their children be educated in schools of their own faith. That such schools have a constitutional right to exist is unquestioned (thanks to the Pierce decision), and they certainly do perform a vital public function.
3) Critical need. If financially hard-pressed religious schools are forced to close for lack of funds, their pupils will be thrust upon the already over-burdened (and seriously deficient) public school system, with the state having to pay the full cost of educating them, rather than merely the limited aid that is now being sought. Thus the state has a major monetary stake in the continued vitality of parochial schools.
These arguments may sound persuasive, but consider the following:
1) “Double taxation” is a myth. All citizens, including single and retired persons and childless couples who cannot use them, pay taxes to support public schools which benefit the entire community and which are freely open to all. Nobody is “taxed” to support a religious school, but public subventions to schools which the public cannot control would be true double taxation. All citizens would, indirectly, be taxed to pay also for religious schools which, unlike public schools, have every right to be exclusionary in considering applicants for enrollment.
2) Free exercise of religion means freedom from governmental impediment. It was never intended to mean freedom from private expense, any more than freedom of the press entitles impoverished would-be newspaper publishers to government funding. Religious parents who cannot afford religious-school tuition payments should be aided voluntarily by their respective faiths, not compulsorily by the public treasury. Nobody should be taxed to support the teaching of anyone's religious faith, not even his own. Moreover, in many denominational schools, there is no bright line of separation between secular and religious studies. Rather, the two are interwoven in much of the curriculum.
3) Religious schools already receive various kinds of federal and state assistance—such as bus transportation, secular textbooks, and remedial, therapeutic, and welfare services. Each form of aid won thus far has been used as a precedent to justify further gains. What is currently being sought is not simply a matter of a voucher or a tax credit of a few hundred dollars for parents of private-school pupils (an amount which, in most instances, would quickly be absorbed by tuition increases). This is the proverbial “foot in the door.” If $100 or $30
0 is constitutionally permissible, why not $1,000 or $2,000? The fact is that many of those who today advocate a relatively modest voucher or tax credit ultimately are seeking full public subsidy of religious-school costs, i.e., parity—for every dollar government spends to educate each child in public school it must spend one dollar to educate each child in private school. If the publicly funded share of private-school costs were to continue to rise, so would the inducement to middle-class parents to abandon public schools altogether. A scenario could well unfold in which financially starved public schools would become isolated scrap heaps for our society's child rejects—the black and brown, the poor, the troubled— the “difficult” children from dreadful homes whom most non-public schools would be unwilling to accept. Consider an actual case: An emotionally troubled 11-year-old black youngster, disruptive in class, is befriended by a black male teacher in his public school who strives to motivate him and to teach him self-control. One morning the boy's mother comes to the school, confronts the teacher, and shouts at him, “I don't want you preachin' to my child, you hear!” The public school, of course, must keep this boy and deal with his problems as best it can. How many parochial schools would put up with him and his mother for very long?
There has never been absolute separation of church and state in America. But many religions have thrived here in large measure because of general adherence to that principle, despite certain departures from it. The greater the adherence and the fewer the departures, the better it will be for all people of all faiths. Hence those groups which uphold the separation principle, far from being “ambivalent” toward religion, are actually among its staunchest supporters. In the eloquent words of the Williamsburg Charter: “Far from denigrating religion as a social or political ‘problem,' the separation of Church and State is both the saving of religion from the temptation of political power and an achievement inspired in large part by religion itself. Far from weakening religion, disestablishment has, as an historical fact, enabled it to flourish.”
Samuel Rabinove is Legal Director of the American Jewish Committee.