Is It Constitutionally Permissible To Issue Education Vouchers To Children Attending Religiously Based Private and Parochial Schools?

by Fr. Charles Irvin

June 1998



DECONSTRUCTING THE WALL

The legislature of the State of Michigan, with the Governor’s active participation, has divested the State’s public schools from local property tax support. With that divestment other fundamental questions have arisen as to the future direction of Michigan’s public schools. Curricula questions have likewise surfaced along with proposals for a voucher system wherein individual school children would be issued vouchers to present to their schools of choice, vouchers drawing specified sums from a State educational or scholarship fund.

On a broader scale, as the critique of our American primary and secondary educational system intensifies and alternative schools are proposed the question of educational vouchers will undoubtedly be presented to the Federal court system. Is it constitutional for either the federal or the state government to issue vouchers to children who may then present them to their schools of choice, including those operated by religious bodies, in order to empower those children to obtain the quality of education they most need to develop themselves and become productive and upright citizens? Is such a system a constitutionally permissible exercise of our government’s mandate to care for the health, education and welfare of all of its citizens regardless of their religious persuasions? When can the government discriminate between persons of faith and persons of no faith, and when can it not discriminate when it comes to the promotion of the general welfare of our nation’s children?

It can be demonstrated that, for the most part, those who seek to keep religiously based morality separate from public school formation of our children will claim such a proposal is unconstitutional, while those who see that morality is a constitutive element in the educational formation of children will support the proposal as constitutional. In the forthcoming debate we need to be clear on the point. The issue is not the separation of Church and State, it is the separation of the State from Religion.

“Pro-choice” is a morally weighted force very much in play in this century as we close out the millennium in which the American Experiment was born. At a time when more and more people feel as if they are powerless victims of enormous forces of change, while at the same time feeling that they are powerless over their own government, the idea of pro- choice has significant political appeal. This is no where more forcefully demonstrated than in the movement toward local and parental control over the schools inculcating values in their children.

When, however, it is put within play in the context of our American educational system, we find “pro-choice”, specifically the concept of schools of choice, placed by secularists in a densely layered thicket, with a Wall constructed up in its midst which they have taken from an incidental metaphor once used by Thomas Jefferson in a letter to Baptist ministers. In the history of the metaphor’s development by the Supreme Court we find that just now the rooks are holding the bishops at bay. And soon another major piece, the Edison Project, will be put into play, a new knight brought up and put onto the field of constitutional law.

My purpose here is to link up some current ideas that support the position that it is constitutional for Americans, people of free choice, to receive educational vouchers from their government to be presented to the schools of their choice for the purpose of developing our nation’s future citizens, thus enhancing the educational component of our culture and the general welfare of our citizens. The pieces are already in play. We need only to align them in a new constellation of educational arrangements to favorably position us as a nation to be a much more effective actor in the world of 2000 A.D. and beyond, a world now dawning upon us.

The pressure for realignment will become enormous if and when the Edison Project succeeds in developing an alternative school system here in the United States. A significant number of business conglomerates are backing Christopher Whittle, chairman of Whittle Communications, intent upon creating a new alternative primary and secondary school system across the United States, a system in direct competition with the present public school system. Being dissatisfied with the deteriorating educational and competency levels of our nation’s work force, they are investing $60 million in research and development, and they are presently securing investments from U.S. business interests in their project.

Joining them is Mr. Beano C. Schmidt, Jr., who recently resigned his position as president of Yale University in order to spearhead this endeavour. These gentlemen refer to it as The Edison Project because they are convinced it will be to our present public educational system what the light bulb was to the candle. They hope to begin operations in just under three years from now. Mr. Schmidt and Mr. Whittle are hard-headed realists who have been very successful in whatever they have undertaken. They are not accustomed to failure, and so we can expect them to have a $10 billion privatized school system operating from coast to coast in a little over ten years from now, educating over 2 million elementary and high school students. The tuition they plan on charging for each student is $5,500 in today’s valuation of the dollar.

We should ask what the project portends for the manner in which we as a people fund the education of our children. The very existence of the Edison Project questions what our present public and parochial school systems are attempting to accomplish, and what the quality of their graduates really is. Some serious competition is looming up over the horizon. It is predictable that there will be a powerful array of American parents calling for a voucher system whereby they can exercise their freedom of choice in choosing the schools in which they want to educate their children. Moreover, because of the recent divestment of Michigan’s public schools from property tax funding, the voucher question in Michigan is immediate.

Should a Michigan educational voucher system be put in place allowing children to present them to religiously based schools of their choice, we can be sure that an action in a Federal Court will be brought by civil libertarians and certain public school educators to declare that arrangement unconstitutional. Such a case would undoubtedly be taken to the U.S. Supreme court. There it would be argued that should the Court disallow children to present those vouchers to parochial schools the Court would be openly discriminating against those children on the basis of their religious beliefs. If under such a decision only non-religious schools would be permitted to receive governmental educational vouchers, the Court would then find itself in the untenable contradiction of supporting and rejecting freedom of choice in the same breath. Furthermore, in the light of Roe. v. Wade the Court would then be holding the Constitution allows a mother choice when a child is in her womb but not when her child is in a classroom.

The two religion clauses of the First Amendment to our Constitution, namely the Establishment clause and the Free Exercise clause” are distinct yet inseparable. In interpreting the meaning and purpose of the two, our Supreme Court has striven to develop a doctrine that rationalizes the activities of religious bodies and the activities of our state and federal governments so that each remains free and independent of the other. It has not been an easy task to discretely keep them from entering into an unholy alliance. Governmental neutrality between religion and irreligion is of itself a position that is not neutral. Such a position places irreligion in the preferred or established place in the public square. Why? Because of the Catch-22 conundrum into which the Court has placed itself.

Perhaps no other doctrine appears to be as strongly embedded in our constitutional landscape than that of the “Wall of Separation of Church and State”. Since the late 1940’s we have been led to believe that it was, like the Berlin Wall, indestructible. And yet the Berlin Wall, built in this century and likewise dismantled in it, points to what could be the forthcoming fate of the Supreme Court’s “Wall of Separation”. And it is the Court’s wall; the concept is nowhere to be found in either our Declaration of Independence or in our Constitution.

The interpretation of the metaphor prior to 1947’s EVERSON case served us well. We as a people have not suffered an Established Church with all the attendant evils that flow therefrom. The Wall separating State from Church was a boon not only to us as a civil people but also to the churches and religious denominations that have flourished in our country as a result. It was this American experience that led the Second Vatican Council to follow the thinking of an American priest, Fr. John Courtney Murray, S.J. and enact its “Declaration on Religious Freedom”, one of the great documents of that Council.

But in addition to being barriers, walls can also obscure vision and can hold hostage. The Wall of Separation has served to hold us as a society of people in a condition of public separation from those transcendent values coming from our Creator. Those transcendent values were recognized in our nation’s primary documents to be natural and inalienable rights. We appealed to them in order to unite us as the people of a New Nation under God. Those transcendents were the warrants that authorized and justified our Revolution. We found them to be a part of that Religion about which Washington, Madison and Jefferson spoke. Prior to 1947 those Transcendents were a part of our educational system as well as our civil society.

We must enquire again now as to the ground upon which this Wall, claimed to be “a basic constitutional principle” is built. “Congress shall make no law respecting an establishment of religion…” reads our Constitution’s first amendment. There is not a word or phrase in either the Constitution or in the Declaration of Independence that speaks of a “wall of separation between Church and State.” It is, in fact, a metaphor, a phrase of rhetoric, used by Jefferson (President from 1801 to 1809) in a letter he wrote to the Baptist Association of Danbury, Connecticut in 1802. Wrote Mr. Jefferson:


“Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should `make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

One hundred and forty five years later this metaphor was raised to the level of putative constitutional dogma by Supreme Court Justice Hugo Black in 1947 when he wrote the Supreme Court’s deciding opinion in the Everson case. Significantly, the phrase “absolute separation” was inserted by Black in stating the doctrine, “absolute” being something newly found. Subsequent to Mr. Justice Black’s construction, separationists have continued in due course to build their arguments on his hermeneutical endeavors with regard to Jefferson’s rhetorical phrase, thenceforth always referring to it as a “basic constitutional principle”.

We are, nevertheless, entitled to ask: Is it to be seriously maintained that Thomas Jefferson, in addressing a convention of Baptist ministers, was telling them that Religion was to have no influence in the public square, no place in setting public policy, or in the life of a virtuous electorate? A significant portion of American citizens hardly thinks so. Nor can I stretch my mind to accede to the proposition that Jefferson sought to divorce religion from culture by setting religion behind a wall originally intended to keep an Established Church from our shores. Reading Jefferson’s works fairly, one cannot come to the conclusion that he intended to put Religion into the closet.

The mind of Thomas Jefferson can be found, among other significant places, in words carved in marble facing his statue in his Memorial in Washington, D.C.:


“God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God? Indeed, I tremble for my country when I reflect that God is just, that His justice cannot sleep forever. Commerce between master and slave is despotism. Nothing is more certainly written in the book of fate than that these people are to be free. Establish the law for educating the common people. This is the business of the State to effect and on a general plan.”

And to further that plan, Jefferson’s intentions are stated in his words that were inserted into the Northwest Ordinance which was enacted July 13, 1787. To protect our nation’s foundation, Jefferson once again appealed to the Transcendent. The Ordinance whose phrases are taken from other works of Jefferson, presents his mind:


“Religion, morality and knowledge being necessary for the good government and happiness of mankind, schools and the means of education shall forever be encouraged.”

The encouragements of our day are exactly the opposite.

It is fair to enquire as to what happened in the relations between church and state prior to 1947’s Everson case. We immediately note that Jefferson penned his rhetorical phrase in 1802, and that subsequently, as President from 1801 to 1809 Jefferson’s actions modified his words. It is quite legitimate to examine one’s actions in an attempt to understand one’s convictions and intentions.

Fr. Gabriel Richard, who with Rev. John Monteith co-founded the University of Michigan, was a progressive and energetic leader in the Territory of Michigan in the early 1800’s. Fr. Richard, a French Sulpician priest, lived in a deep commitment to education, opening six primary schools for the children of settlers, along with some Indian children who were not segregated from those children of White settlers, in the Detroit area. President Jefferson, the author of the “separation of Church and State” comment, was so impressed that he, as a sitting President, directed federal tax dollars be granted to Fr. Richard’s schools for their support. How are we to interpret these actions of President Jefferson in the light of his letter to the Baptist ministers of Danbury, Connecticut?

Jefferson was likewise the architect and founder of the University of Virginia, an institution in which he supported the teaching of religion. He was, of course, a Rationalist. His religion was one that found the Creator through His creation. It was there, too, believing that the human mind was destined to seek and know God in Reason, that Jefferson also found natural rights and self-evident truths coming to us from the Creator, a proposition we all recognize to be one of the grounding principles of Natural Law.

We should note that Jefferson’s support of the Christian religion was only minimal. Nevertheless he did, however cautiously, support its power to enhance Civic Virtue, something he was convinced was absolutely necessary to assure that the republic would long endure. What, then, was the developing body of U.S. Supreme Court decisions prior to the 1947 Everson case? It would be there that Mr. Justice Black should have found his “fundamental constitutional principle” of Absolute Separation explicated. We discover, astonishingly enough, only two U.S. Supreme Court decisions in play!

In 1899, BRADFIELD v. ROBERTS, 175 U.S. 291, we learn that the Supreme Court allowed distribution of federal tax dollars to a Catholic hospital in the District of Columbia for the construction of a ward to care for indigent and penurious patients. If such a distribution would be declared unconstitutional by today’s Court we would be entitled to ask why. What would account for the Court’s change in thinking? The same questions hold with regard to a 1908 Supreme Court decision, QUICK BEAR v. LEUPP, 210 U.S. 50. In that case the Court allowed the distribution of federal tax dollars to cover tuition payments for Sioux Indian children attending a Catholic parochial school.

It is certainly reasonable to ask why that which was constitutional at the turn of the century is suddenly unconstitutional in 1947 and from thence to our times. If the First Amendment was working prior to 1947, why did its meaning need to be changed?

Surely it also ought to be reasonable to ask why the American people cannot return to the original interpretation of the Establishment Clause, even in spite of the Court’s propensities to declare that intention to be unconstitutional recidivism.

Here we should be cautious. There is, nevertheless, ground to suspect that the change had a whole lot to do with the emergence of Roman Catholicism as a major force in America’s postwar world. This occurrence was for reasons other than concern us here. The Beacon Press in Boston was setting off great alarms in the studies they were promoting, Mr. Paul Blanshard and his Protestants and Others United for Separation of Church and State being in the vanguard of their publishings. One has only to note the Beacon Press’ successes in publishing Mr. Blanshard’s American Freedom and Catholic Power (1949), and Communism, Democracy, and Catholic Power (1951), along with other similar works.

At issue are fundamental views as to the nature of the Church and the nature of the State. The Protestant mind raises individualism and independence, along with freedom of choice, to the level of a theological principal, indeed to be held as something sacred. He favors congregational autonomy and independence, equality, and private interpretations of divine revelation. For good many Protestants, their church is just another private association. Authority and centralization are un-American; religion is strictly a private affair.

On the other hand, the Catholic from the time of Constantine favors cooperation between government and religious institutions. Catholics are deeply grieved when the state is not actively committed against atheism, secularism and indifference. The State, in the mind of the Catholic, has been given a mission by God to preserve the peace and freedom of His people, a peace and freedom in which to choose the Good and work to reveal God’s kingdom here on earth as it is in heaven. And the State is additionally charged with the mission to protect the weak and the oppressed, to promote the health, education and welfare of all of God’s children.

The Catholic sees a distinction, not a separation, between church and state. He has lived too long behind a Wall, knows its imprisoning power, and wants to join the rest of humanity, as did St. Francis of Assisi, in the public square in the peace of God to bring the Good to all men and women of good will. The common weal and the rights of the community secure those that are personally the citizen’s. Individuality is found and secured in a community that is legitimated under God and not under the majority will and power of men and women alone. Human reason alone lacks the force with which to hold the human heart’s lust for power over others. Totalitarianism flourishes in such soil. As history so clearly demonstrates, the only power that holds the human will in check is that which comes from above and speaks to the human heart. The Catholic finds all social evils originating in human hearts that have been alienated from the Source of all good. We are only the stewards of human life; we must eventually give an account for it to its Creator.

Are we, as a people who are endowed by our Creator with rights that we cannot alienate, to follow Justice Hugo Black’s finding that Jefferson has directed us to separate religion from the public square? It was, as noted above, Justice Hugo Black’s opinion that imbedded the so-called “constitutional principle of absolute separation of Church and State” in our landscape, not Mr. Jefferson. Writing motu proprio, and without citing precedents or arguing the substantive merits of his judicial legislation, Justice Black employed a mere metaphor used only once before, and then used only incidently by Thomas Jefferson, to construct the Wall of Separation of Church and State. Thus it came to pass that in the Everson case the Supreme Court judicially enacted a novel idea, and then planted it for the first time in our American constitutional jurisprudence. Governmental aid to religion was now a violation of the Establishment clause of the First Amendment whereas before it wasn’t. Building on Mr. Justice Black’s construction, making it even thicker and higher, a series of subsequent Supreme Court opinions have raised the Wall to mythic proportions. Presently we find the Court coming perilously close to stating that the First Amendment of our Constitution should be read to mean that American citizens are to be “free from religion” in public life. Freedom of religion now becomes freedom from religion so as not to offend those of no religion. Secular Humanism has effectually become the favored religion, if not the established religion by default.

The efforts of Mr. Blanshard and his friends in the late 1940’s to keep Catholicism in the closet have not hurt the church as much as they have our nation. She is not muzzled in her expressions of religious belief. It is Theism that is now under attack. More precisely it is the secularists who have taken up Mr. Blanshard’s mantel and are now attempting to keep religiously based morals and values separate and apart from our culture and its formative base, namely our public school system. Testimony to their success is found in the groundswell to reform the entire system.

Secular Humanism is a religion listed by the U.S. Supreme Court in the Torcaso case. Its tenets are obviously nontheistic; it claims that men and women can find self-fulfillment and ethical conduct without recourse to the supernatural. As such, Secular Humanism’s agenda is hostile toward those of theistic religions or religions having recourse to any Transcendents. All public expressions made by theists will, ipso facto, be offensive to devoted secular humanists. All appeals to the Divine, or anything above the human mind and its choices, are indictments against the major premises of secular humanists. The irony is that their belief system is, in fact, so established today that an enormous shift in our American culture is occurring. More and more now, energy is being expended now on making sure that state and federal governmental activities, and everything supported by tax dollars – and most especially our school system – is to be made “value free”, which is itself a “value”.

Having been declared to be a religion in the Torcaso case, secular humanism is effectively driving all other religions off of the public field. One has only to look at the Supreme Court decisions following the Torcaso case to see secularism’s weight in the Court’s scales. And following Lee v. Weisman, which only recently decided that any prayers offered during public school graduation exercises constitute “excessive governmental entanglement” with religion, we can expect that eventually all other public ceremonies invoking the Divine to be declared ipso facto unconstitutional. While Congress can make no law respecting an establishment of religion, the Supreme Court has. It has established secular humanism as our State Religion.

It is to be noted that there are secularists who admit that the original meaning of the First Amendment was only to prohibit the establishment of an official State Religion. Nevertheless, they assert, our culture needs to be safeguarded against the militants of the so-called Religious Right, as well as fanatical fundamentalists and traditionalist Roman Catholics. On the other hand, a growing body of American citizens is actively opposed to the secularization of our culture and is working to restore Religion to its original place both in academia and in our public life. Thomas Jefferson recognized and forcefully stated the premises:


“Almighty God hath created the mind free. All attempts to influence it by temporal punishments or burthens… are a departure from the plan of the Holy Author of our Religion…. No man shall be compelled to frequent or support any religious worship or ministry or shall otherwise suffer on account of his religious opinions or belief.”

Nor, we might add today, should an entire nation of people be held hostage behind a wall of separation that was never intended to separate Religion, as envisioned by our nation’s Founders, from these United States.

It is proper, I believe, to ask whether the Supreme Court, which in the 1947 Everson case read the Establishment clause differently from its original interpretation so as to thenceforth ban public funds or facilities from in any way directly or indirectly way aiding religion, could reinterpret the First Amendment once again. If the Court can change the original meaning, as it did in 1947, why is it now impermissible to change its interpretation back to the original?

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