tag:theconversation.com,2011:/us/topics/separation-of-church-and-state-40535/articles
Separation of church and state – The Conversation
2023-10-27T12:18:10Z
tag:theconversation.com,2011:article/210095
2023-10-27T12:18:10Z
2023-10-27T12:18:10Z
Louisiana’s ‘In God We Trust’ law tests limits of religion in public schools
<p>When Louisiana passed a law in August 2023 requiring public schools to post “<a href="https://www.usatoday.com/story/news/nation/2023/08/03/louisiana-in-god-we-trust-law/70519434007/">In God We Trust</a>” in every classroom – from elementary school to college – <a href="https://www.theadvertiser.com/story/news/2023/01/19/louisiana-lawmaker-files-bill-to-put-god-in-every-school-classroom/69821507007/">the author of the bill claimed</a> to be following a long-held tradition of displaying the <a href="https://www.pbs.org/wgbh/frontline/article/in-god-we-trust-reaffirmed-as-national-motto-again/">national motto</a>, most notably on U.S. currency. </p>
<p>But even under recent Supreme Court precedents, the Louisiana law may violate the <a href="https://constitution.congress.gov/constitution/amendment-1/">establishment clause of the First Amendment</a>, which prohibits the government from promoting religion. I make this observation as one who has researched and <a href="https://books.google.com/books?hl=en&lr=&id=XoV15X_SoA4C&oi=fnd&pg=PR9&dq=Frank+Ravitch&ots=scSow4fFWy&sig=5kTKn_GYJGWmnVY4Paj1XGg_TAI#v=onepage&q=Frank%20Ravitch&f=false">written extensively on issues of religion</a> in the public schools.</p>
<p>The Louisiana law specifies that the motto “shall be displayed on a poster or framed document that is at least 11 inches by 14 inches. The motto shall be the central focus … and shall be printed in a large, easily readable font.” The law also states that teachers should instruct students about the phrase as a way of teaching “patriotic customs.”</p>
<p>Similar bills are being promoted by groups like the <a href="https://cpcfoundation.com/about/">Congressional Prayer Caucus Foundation</a>, a nonprofit that supports members of Congress who meet regularly to <a href="https://www.usatoday.com/story/news/politics/2015/09/28/prayer-caucus-funded-taxpayers-defends-faith-government-policy/72428692/">defend the role of prayer in government</a>. To date, 26 states have considered bills requiring public schools to display the national motto. Seven states, including Louisiana, <a href="https://www.blitzwatch.org/in-god-we-trust-school-displays">have passed laws</a> in this regard.</p>
<h2>Recent shift in the law</h2>
<p>The Supreme Court has long treated public schools as an area where government-promoted religious messaging is unconstitutional under the First Amendment’s <a href="https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion">establishment clause</a>. For example, the Supreme Court held in <a href="https://www.oyez.org/cases/1961/468">1962</a>, <a href="https://www.oyez.org/cases/1962/142">1963</a>, <a href="https://www.oyez.org/cases/1991/90-1014">1992</a> and <a href="https://www.oyez.org/cases/1999/99-62">2000</a> that prayer in public schools is unconstitutional either because it favored or endorsed religion or because it created coercive pressure to religiously conform. In <a href="https://www.oyez.org/cases/1980/80-321">1980</a>, the court also struck down a Kentucky law requiring the Ten Commandments to be posted in classrooms.</p>
<p>At the same time, the court has protected private religious expression for individual students and teachers in public schools. </p>
<p>The Louisiana law comes at a time of <a href="https://www.brookings.edu/events/understanding-the-threat-of-white-christian-nationalism-to-american-democracy-today/">rising concerns about Christian nationalism</a> and on the heels of a pivotal court case. In the 2022 case <a href="https://www.oyez.org/cases/2021/21-418">Kennedy v. Bremerton School District</a>, the court overturned more than 60 years of precedent when it ruled that a public school football coach’s on-field, postgame prayer did not violate the establishment clause. In doing so, the court rejected long-standing legal tests, holding instead that courts should look to <a href="https://www.oyez.org/cases/2021/21-418">history and tradition</a>.</p>
<p>The problem with using history and tradition as a broad test is that it can change from one context to the next. People – including lawmakers – are apt to ignore the negative and troubling lessons of U.S. religious history. Prior to the Kennedy decision, history and tradition were used by a majority of the court to decide establishment clause cases only in specific contexts, such as <a href="https://www.oyez.org/cases/2013/12-696">legislative prayer</a> and <a href="https://www.oyez.org/cases/2018/17-1717">war memorials</a>.</p>
<p>Now, states like Louisiana are trying to use history and tradition to bring religion into public school classrooms.</p>
<h2>A history of ‘In God We Trust’</h2>
<p>Contrary to what people often assume, the phrase “In God We Trust” has not always been the national motto. It <a href="https://blogs.loc.gov/law/2013/04/in-god-we-trust/">first appeared on coins</a> in 1864, during the Civil War, and in the following decades it sparked controversy. In 1907, President Theodore Roosevelt urged Congress to <a href="https://timesmachine.nytimes.com/timesmachine/1907/11/14/106767538.html?pageNumber=1">drop the phrase from new coins</a>, saying it “does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege.”</p>
<p>In 1956, amid the Cold War, “<a href="https://theconversation.com/the-complex-history-of-in-god-we-trust-91117">In God we Trust</a>” became the national motto. The phrase first appeared on paper money the next year. It was a time of significant fear about communism and the Soviet Union, and atheism was viewed as part of the “communist threat.” Atheists were <a href="https://www.routledge.com/Anti-Atheist-Nation-Religion-and-Secularism-in-the-United-States/Klug/p/book/9781032310107">subject to persecution</a> during the <a href="https://www.eisenhowerlibrary.gov/research/online-documents/mccarthyism-red-scare">Red Scare</a> and afterward. </p>
<p>Since then, the motto has stuck. Over the years, <a href="https://www.reuters.com/article/us-usa-religion-motto-idUSKCN1LD24K">legal challenges</a> attempting to remove the phrase from money have failed. Courts have generally understood the term as a form of <a href="https://www.oyez.org/cases/1983/82-1256">ceremonial deism or civic religion</a>, meaning religious practices or expressions that are viewed as being merely customary cultural practices.</p>
<h2>The future of the law</h2>
<p>Even after the Kennedy ruling, the Louisiana law may still be unconstitutional because students are a captive audience in the classroom. Therefore, the mandate to hang the national motto in classrooms could be interpreted as a form of religious coercion. </p>
<p>But because the law requires a display rather than a religious exercise like school prayer, it may not violate what has come to be known as the <a href="https://www.oyez.org/cases/1991/90-1014">indirect coercion test</a>. This test prevents the government from conducting a formal religious exercise that places strong social or peer pressure on students to participate. </p>
<p>The outcome of any constitutional challenge to the Louisiana law is far from clear. Prior cases involving the Pledge of Allegiance offer one example. Though the Supreme Court dismissed on standing grounds the <a href="https://constitutioncenter.org/blog/the-latest-controversy-about-under-god-in-the-pledge-of-allegiance">only establishment clause challenge to the pledge</a> it has considered, lower courts have held that reciting the pledge in schools is constitutional for a variety of reasons.</p>
<p>These reasons include the idea that it is a form of <a href="https://www.pewresearch.org/religion/2008/08/28/on-ceremonial-occasions-may-the-government-invoke-a-deity/">ceremonial deism</a> and the fact that since 1943 students have been <a href="https://edition.cnn.com/2019/02/19/us/pledge-of-allegiance-explainer-trnd/index.html">exempt from having to say the pledge</a> if it violates their faith to do so. </p>
<p>The Louisiana law, however, requires instruction about the national motto. </p>
<p>If the law is challenged in court and upheld, teachers could teach that the motto was adopted when the nation was emerging from <a href="https://millercenter.org/the-presidency/educational-resources/age-of-eisenhower/mcarthyism-red-scare">McCarthyism</a> and fear of communism was widespread. Moreover, they could teach that many people of faith throughout U.S. history would have viewed this sort of display as against U.S. ideals.</p>
<h2>Division is likely</h2>
<p>More than two centuries before Roosevelt argued that it was sacrilegious to put “In God We Trust” on coins, the Puritan minister and Colonist Roger Williams famously proclaimed that “<a href="https://www.taylorfrancis.com/chapters/mono/10.4324/9780429054860-4/forced-worship-stinks-god-nostrils-margaret-mur%C3%A1nyi-manchester">forced worship stinks in God’s nostrils</a>.” Williams founded the colony of Rhode Island, at least in part, to promote religious freedom.</p>
<p>Additionally, there is no prohibition on alternative designs for the national motto posters as long as the motto is “the central focus of the poster.” In Texas, a parent donated rainbow-colored “In God We Trust” signs and others written in Arabic, which were subsequently <a href="https://www.dallasnews.com/news/education/2022/08/29/southlake-schools-rejects-in-god-we-trust-signs-featuring-rainbows-arabic/">rejected by a local school board</a>. This situation, which gained significant media attention, brought the exclusionary impact of these laws <a href="https://theconversation.com/uncivil-obedience-becomes-an-increasingly-common-form-of-protest-in-the-us-209928">into public view</a>.</p>
<p>It could be argued that accepting wall hangings that favor Christocentric viewpoints – and rejecting those that reflect other religions or add symbols such as the rainbow – is <a href="https://www.oyez.org/cases/2021/20-1088">religious discrimination by government</a>. If so, schools might be required to post alternative motto designs that meet the letter of the new law in order to uphold free speech rights and prevent religious discrimination. </p>
<p>The Louisiana law would have been brazenly unconstitutional just two years ago. But after the Kennedy decision, the law may survive a potential legal challenge. Even if it does, one thing is for certain: It will be divisive.</p><img src="https://counter.theconversation.com/content/210095/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frank S. Ravitch does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Does Louisiana’s requirement for public schools to post ‘In God We Trust’ in all classrooms violate the doctrine of separation of church and state? A legal scholar weighs in.
Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion, Michigan State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/215132
2023-10-26T12:31:24Z
2023-10-26T12:31:24Z
Public schools and faith-based chaplains: Texas’ new combination is testing the First Amendment
<figure><img src="https://images.theconversation.com/files/555647/original/file-20231024-15-yneqdd.jpg?ixlib=rb-1.1.0&rect=3%2C0%2C2114%2C1409&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When public school counselors are in short supply, should chaplains be allowed to fill the gap?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/unhappy-young-girl-at-the-psychologist-royalty-free-image/1327949832?phrase=chaplain+counsels+a+child&adppopup=true">Vladimir Vladimirov/E+ via Getty Images</a></span></figcaption></figure><p>In 1996, a school board in eastern Texas created a program called Clergy in Schools. Beaumont Independent School District recruited volunteer clergy <a href="https://www.chron.com/news/houston-texas/article/beaumont-school-district-target-of-lawsuit-over-2023594.php">to counsel K-12 students</a> on topics such as self-esteem, peer pressure and violence. The goal, officials said, was to create volunteer opportunities, encourage conversation about civic values and morality, and enhance safe learning environments.</p>
<p>Clergy in Schools didn’t last long. A federal trial court in Texas <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/224/1099/2490192/">invalidated the program</a> in 2002. The judge found that the program violated <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment</a>, according to which, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” More specifically, the court held that the program was unconstitutional because it was not neutral with regard to faith and conveyed the message that religion is preferable to a lack of religion.</p>
<p>But now, schools across the state are debating whether to open their doors to clergy. </p>
<p><a href="https://legiscan.com/TX/text/SB763/id/2686268">Senate Bill 763</a>, enacted in September 2023, allows school officials to hire unlicensed chaplains, either as staff members or volunteers. Those who can pass background checks will be allowed to perform duties typically provided by counselors, such as mental health support. Local boards have until March 1, 2024, to choose whether to allow chaplain programs in their schools.</p>
<p>SB 763 generates significant questions around the First Amendment. These questions are all the more high stakes given that the Supreme Court has recently <a href="https://theconversation.com/why-the-supreme-courts-football-decision-is-a-game-changer-on-school-prayer-184619">signaled shifting views</a> about the limits on religious activity in public schools – themes I teach, write and speak about regularly as <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a faculty member</a> specializing in education law.</p>
<h2>Lone Star State</h2>
<p>Across the nation, local boards have difficulty <a href="https://www.tasb.org/services/hr-services/hrx/recruiting-and-hiring/national-school-counselor-shortage-rates.aspx">filling counseling positions with qualified staff</a>. In fact, Texas ranks 23rd in the nation <a href="https://missoulian.com/news/national/most-states-have-a-school-counselor-shortage-heres-where-theyre-needed-the-most/article_1169c039-88da-5f13-8489-3ed8cdf09b76.html">in student-to-counselor ratios</a>, with almost 400 students for every counselor.</p>
<p>However, SB 763 was also enacted amid a seeming push to allow religion to <a href="https://www.expressnews.com/politics/article/republicans-push-christianity-texas-schools-17915163.php">occupy a greater place</a> in Texas’ public schools. </p>
<p>One bill <a href="https://www.texastribune.org/2023/05/24/texas-legislature-ten-commandments-bill/">requiring officials to display</a> a 16-by-20-inch copy of the Ten Commandments in <a href="https://www.washingtonpost.com/politics/2023/04/21/texas-bill-ten-commandments-public-schools-religion/">every public school classroom</a> was passed in the state Senate but died on the floor of the House in May 2023. <a href="https://capitol.texas.gov/tlodocs/88R/billtext/pdf/SB01396E.pdf#navpanes=0">Another bill</a>, passed by the Senate and sent to a House committee, would allow boards to require schools to provide students with <a href="https://www.dallasnews.com/news/education/2023/04/21/ten-commandments-and-prayer-in-public-schools-texas-senate-approves-religious-bills/">time to pray</a> or read religious texts.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The multistory dome of a large building is seen between trees, with two flags flying in front." src="https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555649/original/file-20231024-23-l229tg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Texas legislature has debated several proposals over the past year to give religion more of a role in public schools.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-exterior-of-the-texas-state-capitol-is-seen-on-news-photo/1661520774?adppopup=true">Brandon Bell/Getty Images</a></span>
</figcaption>
</figure>
<h2>Shifts at SCOTUS</h2>
<p>The Supreme Court, too, has displayed a friendlier attitude toward prayer and religion in public education, as reflected in <a href="https://www.law.cornell.edu/supremecourt/text/21-418">Kennedy v. Bremerton School District</a>: its 2022 decision upholding the right of a Washington state football coach <a href="https://theconversation.com/why-the-supreme-courts-football-decision-is-a-game-changer-on-school-prayer-184619">to pray on the field</a> at the end of games.</p>
<p>In so doing, the justices acknowledged that the Supreme Court abandoned the tests it used over the past 50-plus years to assess whether government actions appeared to endorse religion, and therefore whether they violated the establishment clause of the First Amendment.</p>
<p>The most famous of these was often called “the Lemon test,” referring to the court’s 1971 decision in <a href="https://www.oyez.org/cases/1970/89">Lemon v. Kurtzman</a>. In order to be permissible, the court ruled in Lemon, an activity involving religion and state had to <a href="https://supreme.justia.com/cases/federal/us/403/602/">meet three criteria</a>: that it have a secular legislative purpose; that its principal or primary effect neither advance nor inhibit religion; and that it not result in “excessive entanglement” between religion and the state – though the court did not define “excessive.”</p>
<p>The court also abandoned what was known as the “endorsement test,” which stems from 1984’s <a href="https://supreme.justia.com/cases/federal/us/465/668/">Lynch v. Donnelly</a>, in which a man <a href="https://www.oyez.org/cases/1983/82-1256">challenged a Rhode Island city</a> over its Christmas display and Nativity scene – and lost. According to the endorsement test, a policy is permissible if a “reasonable observer” would not think it was endorsing or disapproving of religion. </p>
<p>Finally, in 1992, the court abandoned a test it applied only once, in <a href="https://www.law.cornell.edu/supct/html/90-1014.ZD.html">Lee v. Weisman</a>: coercion. The justices invalidated prayer at a public school graduation ceremony on the basis that it coerced people present into listening.</p>
<p>Instead of these tests, the court wrote in 2022’s <a href="https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf">Kennedy v. Bremerton</a> that “the Establishment Clause must be interpreted by ‘reference to <a href="https://www.law.cornell.edu/supremecourt/text/21-418">historical practices and understandings</a>.’” However, it remains to be seen exactly what this means.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People kneel on a large piece of pavement, looking toward a large white building with columns." src="https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/555651/original/file-20231024-29-2b6fmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People kneel and pray as Christian singer-songwriter Sean Feucht performs outside the U.S. Supreme Court after the Kennedy v. Bremerton ruling on June 27, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-kneel-and-pray-as-christian-singer-songwriter-sean-news-photo/1241572598?adppopup=true">Bill Clark/CQ-Roll Call, Inc via Getty Images</a></span>
</figcaption>
</figure>
<h2>Crossing the line?</h2>
<p>Even so, SB 763 raises at least three thorny issues about how to assess whether a policy violates the First Amendment.</p>
<p>Initially, assuming the lower courts apply the new test enunciated in Kennedy v. Bremerton – that the First Amendment must be interpreted in light of “historical practices” – there do not appear to be traditions supporting the presence of faith-based chaplains as staff members or volunteers in public schools, regardless of whether they were formally credentialed.</p>
<p>Second is the question of endorsing religion. As noted, the Supreme Court repudiated its earlier tests about whether a policy appears to “endorse” a particular religion or no religion, or coerced people into participating. But the fundamental principle still holds: The First Amendment prohibits government from making any law “respecting an establishment of religion.” It thus appears that SB 763 straddles, if not crosses, the line into establishment. Having faith-based chaplains – a move <a href="https://bjconline.org/wp-content/uploads/2023/08/LETTER_-Texas-Chaplains-Say-No-to-Public-School-Chaplain-Programs.pdf">many Texas chaplains themselves oppose</a> – arguably puts the power of the state behind their actions.</p>
<p>Third is the question of which faiths will be represented and whether the chaplain program would appear to endorse some religions over others. Even if SB 763 were to survive a challenge on establishment clause grounds, one must question whether having chaplains from only some faith traditions is wise in an increasingly pluralistic American society, in which the number of <a href="https://www.pewresearch.org/religion/2021/12/14/about-three-in-ten-u-s-adults-are-now-religiously-unaffiliated/">people no longer identifying with religion</a> is growing.</p>
<h2>Votes ahead</h2>
<p>Not surprisingly, SB 763 has its supporters and critics. A board member in one Texas district <a href="https://www.texasstandard.org/stories/north-east-independent-school-district-san-antonio-tx-chaplains/">described the bill</a> as “a great opportunity to bring some spiritual guidance into the schools.” Another supporter, without offering a rationale, suggested that affording religion a greater place in public education could help to make schools safer, including <a href="https://www.expressnews.com/politics/article/texas-republicans-tout-christianity-campus-deter-18073417.php">reducing the risk of mass shootings</a>.</p>
<p>Conversely, <a href="https://www.washingtonpost.com/religion/2023/08/23/texas-school-chaplains-letter/">more than 100 chaplains</a> from various Christian denominations – including the Catholic Church, United Methodist Church and Seventh-day Adventist Church – as well as Jewish and Buddhist leaders signed <a href="https://bjconline.org/wp-content/uploads/2023/08/LETTER_-Texas-Chaplains-Say-No-to-Public-School-Chaplain-Programs.pdf">a public letter</a> opposing the bill. “It is harmful to our public schools and the students and families they serve,” the signatories wrote, because it neither prevents individuals from proselytizing in schools nor insures that they would have the necessary qualifications to serve students.</p>
<p>Boards have begun to vote on whether to allow chaplains in their schools. So far, boards <a href="https://www.keranews.org/education/2023-10-20/dallas-isd-wont-employ-chaplains-as-counselors">including those in Dallas</a> and <a href="https://www.kvue.com/article/news/education/schools/san-marcos-cisd-rejects-school-chaplains/269-026bbf9c-285c-4db5-be3d-14c09b40e678">San Marcos</a> have chosen not to do so, while others such as <a href="https://communityimpact.com/austin/round-rock/education/2023/09/26/round-rock-isd-officials-choose-volunteer-policy-for-local-chaplains/">Round Rock</a> <a href="https://www.ketk.com/news/local-news/mineola-isd-approves-chaplains-as-counselors/">and Mineola</a> have decided to allow chaplains in their schools.</p>
<p>SB 763 raises serious questions about what crosses the line toward establishing religion that, I believe, will likely result in litigation. Thus, both sides – whether in favor of or opposed to having chaplains in schools – should be mindful of the aphorism to “be careful what you wish for.”</p><img src="https://counter.theconversation.com/content/215132/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Recent Supreme Court decisions have signaled a shift in how the country’s highest court interprets the limits on religion in schools.
Charles J. Russo, Joseph Panzer Chair in Education and Research Professor of Law, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/214736
2023-10-15T04:45:46Z
2023-10-15T04:45:46Z
Between state and mosque: new book explores the turbulent history of Islamic politics in Mozambique
<p><em><a href="https://www.imf.org/external/pubs/ft/dp/2014/afr1404.pdf">Mozambique</a> is a multi-religious southern African nation with excellent relations between faiths. Relations between Muslims and the state have been good too. But the situation became more complicated <a href="https://theconversation.com/mozambiques-own-version-of-boko-haram-is-tightening-its-deadly-grip-98087">in 2017</a> when a bloody jihadist insurgency broke out in the north. Eric Morier-Genoud has published extensively on politics and religion in Mozambique. His latest book, <a href="https://www.hurstpublishers.com/book/towards-jihad/">Towards Jihad? Muslims and Politics in Postcolonial Mozambique</a>, looks at the historical relationship between Islam and politics in the country. He fielded some questions from The Conversation Africa.</em></p>
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<h2>When was Islam introduced to Mozambique?</h2>
<p>Islam has a very old presence in Mozambique. It is estimated to have arrived within the first century of the start of the faith, with Arab, Ottoman and Persian traders. It settled at once during and after the 8th century among new Swahili networks, cultures and societies that developed on the east African coast between Somalia and what is today Mozambique. </p>
<p>Expansion of the Islamic faith inland was slow and only made significant progress in the 19th and 20th centuries. This was the time when European colonial powers occupied Africa, building new infrastructure such as roads and railways that helped the spread of different faiths. </p>
<p>At <a href="https://www.britannica.com/place/Mozambique/Mozambique-under-the-New-State-regime">independence in 1975</a>, Muslims represented 15% of the population of Mozambique. The latest census indicates it stood at 19% <a href="https://www.britannica.com/place/Mozambique/Religion">in 2017</a>. Today Muslims live mostly on the coast and in the north of the country. A majority of the population of Niassa and Cabo Delgado provinces are Muslim, as are 40% of the population of Nampula province.</p>
<h2>What’s been the political experience of Muslims since independence?</h2>
<p>A majority of Muslims, like all other religious people in the country, were in favour of independence. But when Frelimo, the liberation movement, came to power at independence in 1975, its policy was socialist-oriented and the government turned against religion. Frelimo saw faith as a superstition and an impediment to its programme. It closed churches near state and educational institutions, restricted religious practice, and even ran atheist campaigns between 1978 and 1980. </p>
<p>In the 1980s, the Frelimo party-state shifted towards tolerance, meaning a policy of minor religious restrictions and a strict separation between state and church/mosque. Frelimo party members were prohibited from being members of a religious institution. Faith institutions were ordered to focus on religion only. </p>
<p>In the 1990s, after the end of the <a href="https://www.britannica.com/question/How-did-the-Cold-War-end">Cold War</a> and the official abandonment of socialism, the Frelimo government moved towards a freer religious regime. </p>
<p>Nevertheless, the post-socialist <a href="https://www.portaldogoverno.gov.mz/por/Governo/Legislacao/Constituicao-da-Republica-de-Mocambique">1990 constitution</a> did not allow political parties based on regionalism, ethnicity or religion. So there’s a limit to what Muslims can do politically for their faith.</p>
<p>A law to recognise Muslim religious holidays in the 1990s was blocked by the Supreme Court in the name of secularism. Muslims argued this was unfair since Christmas is an official holiday, although called <a href="https://www.timeanddate.com/calendar/?country=126">“family day”</a>. </p>
<p>Similarly in the 2000s Muslim politicians (organised in a formal cross-party lobby in parliament) struggled to influence a new law to define the family, inheritance rights and women’s rights. </p>
<p>Consequently, many Islamic organisations and politicians have moved away from politics in the last two decades, to focus on education, social works and proselytism.</p>
<h2>What led to the current insurgency?</h2>
<p>There is much debate about the causes of the jihadi insurgency in northern Mozambique. <a href="https://www.iese.ac.mz/wp-content/uploads/2019/09/cadernos_17.pdf">Researchers</a> have identified poverty, youth marginalisation, ethnicity and religion as push factors. </p>
<p>The pull factor is a jihadi project of more justice and equality through sharia law and a caliphate. It offers an alternative plan for state and society, and a path to it through violence. The insurgency developed regionally (in connection with Tanzanian jihadis) and the insurgents connected formally to the Islamic State, the <a href="https://www.economist.com/middle-east-and-africa/2022/08/11/how-al-qaeda-and-islamic-state-are-digging-into-africa">international terrorist group</a>, in early 2018. </p>
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Read more:
<a href="https://theconversation.com/mozambican-terror-group-is-strikingly-similar-to-nigerias-deadly-boko-haram-201039">Mozambican terror group is strikingly similar to Nigeria's deadly Boko Haram</a>
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<p>My book shows that the overwhelming majority of Muslims in Mozambique do not want full sharia law and a caliphate. Nor do they accept the violence used to achieve these objectives. </p>
<p>The insurgents have nevertheless settled militarily in the extreme north, where they have established bases in deep forests and rely on Islamic State for some technical support and public relations.</p>
<h2>What support, if any, do the insurgents enjoy in Mozambique?</h2>
<p>Insurgents enjoy hardly any support nationally. Locally, they draw some support from networks they established, from long-held local grievances, and from mistakes the state, the army and the police have made since the start of the conflict. </p>
<p>Other dynamics have come into play, including displacement, violence, uncertainty and fear. Today, the “Al-Shabaab” insurgents (as they are known in Mozambique) operate in a territory of about 30,000 square kilometres which represents less than half of the province of Cabo Delgado (one of the 11 provinces of Mozambique). </p>
<p>This is a very limited territory, but one where crucial economic projects are located. Among others, private investment is unfolding for the production of onshore and offshore LNG gas, and companies have developed graphite projects that have turned Mozambique into the second largest world producer of this mineral. </p>
<p>The insurgents have hardly expanded since they began their armed insurrection in October 2017. In 2021 they carried out attacks in Niassa and Nampula, but they withdrew rapidly. It is not clear whether they chose not to expand, or whether the government and its <a href="https://www.usip.org/publications/2022/06/regional-security-support-vital-first-step-peace-mozambique">international allies</a> have been effective in containing them. Still, the armed conflict continues today, six years on.</p>
<h2>How can the peace be restored?</h2>
<p>This is a topic of debate. The government has been active mostly militarily, with an international intervention since 2021. It wants to root out those it calls international “terrorists”. </p>
<p>Many commentators and partners of Mozambique believe that to resolve the conflict, one also needs to address the root causes: poverty, youth marginalisation and ethnicity. Donors and the Mozambican government have started social and economic programmes focusing on youth and on economic development in the north of Mozambique. Even private companies such as TotalEnergie want to engage in such programmes.</p>
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Read more:
<a href="https://theconversation.com/catalogue-of-failures-behind-growing-humanitarian-crisis-in-northern-mozambique-149343">Catalogue of failures behind growing humanitarian crisis in northern Mozambique</a>
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<p>An element which has not been touched upon yet relates to the pull factors. There are several possibilities. One would be for the state and civil society to develop a reflection and consultation about the future of the country and about inclusion and representation. It could look at social, economic, political, historical, cultural, and religious elements, aiming to establish a medium-term “agenda for the nation”.</p><img src="https://counter.theconversation.com/content/214736/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Morier-Genoud does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The overwhelming majority of Muslims in Mozambique reject the violence of the insurgents and their quest for a caliphate.
Eric Morier-Genoud, Reader in African history, Queen's University Belfast
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/209928
2023-08-10T12:41:42Z
2023-08-10T12:41:42Z
‘Uncivil obedience’ becomes an increasingly common form of protest in the US
<figure><img src="https://images.theconversation.com/files/540448/original/file-20230801-25-ykxcyt.jpg?ixlib=rb-1.1.0&rect=24%2C0%2C5522%2C3119&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters in Utah demonstrate against a school district's ban on the Bible for having 'vulgarity and violence' unfit for young children.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BibleBanUtahSchools/10711f2c31de462f899153fe9fd49502/photo">AP Photo/Rick Bowmer</a></span></figcaption></figure><p>When Utah legislators passed a bill requiring the review and removal of “pornographic or indecent” books in school libraries, they likely did not imagine the law would be used to justify banning the Bible.</p>
<p>Utah’s H.B. 374, which took effect in May 2022, “prohibits certain <a href="https://le.utah.gov/%7E2022/bills/static/HB0374.html">sensitive instructional materials in public schools</a>.” It joins a series of conservative book bans that supporters claim protect children but critics have argued unfairly target <a href="https://www.nypl.org/blog/2023/06/23/lgbtq-titles-targeted-censorship-stand-against-book-banning">LGBTQ+ content</a> and <a href="https://www.goalcast.com/how-book-bans-silence-minority-groups/">minority authors</a>. </p>
<p>But in early June 2023, the bill stirred further controversy when, after receiving a complaint from a parent using the bill’s provisions, a Utah school district <a href="https://www.bbc.co.uk/news/world-us-canada-65794363">removed the Bible</a> from elementary and middle schools because it contains “vulgarity and violence” deemed inappropriate for the age group. </p>
<p>Utah is not the only state that has faced complaints about the age-inappropriate content of the Bible in response to book bans. In June 2023, a <a href="https://www.youtube.com/watch?v=maX9IoUo5uc">Florida rabbi, Barry Silver</a>, <a href="https://www.wptv.com/news/palm-beach-county/parent-wants-bible-removed-from-palm-beach-county-school-to-make-a-point">compiled a list of Bible verses</a> that he argues contains violence and sex. Although he maintains he is opposed to censorship, he argues the Bible meets the criteria for Florida’s controversial <a href="https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=76545">Parental Rights in Education Act</a> and concludes: “You want to censor books? <a href="https://www.wptv.com/news/palm-beach-county/parent-wants-bible-removed-from-palm-beach-county-school-to-make-a-point">Start with the one that you like the best</a>.”</p>
<p>In May 2023, the Freedom From Religion Foundation, a nonprofit promoting the separation of church and state, called for <a href="https://www.publicradiotulsa.org/local-regional/2023-05-17/state-superintendent-ryan-walters-possibly-ripe-for-lawsuit-after-promoting-biblical-instruction">Oklahoma to ban the Bible from schools</a> due to its pornographic content. That move came after state education Superintendent Ryan Walters called for a <a href="https://www.msn.com/en-us/news/us/oklahoma-s-head-superintendent-wants-to-ban-lgbtq-books-but-teach-the-bible-in-history-classes/ar-AA1aPjQ9">ban on LGBTQ+ books</a>, while arguing the Bible should be taught in government-funded public schools. Like Silver, foundation leaders say <a href="https://eu.oklahoman.com/story/news/2023/05/20/ryan-walters-oklahoma-banned-books-freedom-from-religion-foundation-letter-bible/70238103007/">they do not support book bans</a> but maintain that if conservative Christians, who have been some of the strongest supporters of recent bans, want to ban books containing sexual references, they cannot ignore the Bible.</p>
<p>Such attempts to ban the Bible based on book ban laws are examples of a protest strategy called “<a href="https://www.jstor.org/stable/43387025">uncivil obedience</a>.”</p>
<h2>A different approach to protest</h2>
<p>Uncivil obedience is the opposite of the more commonly known protest strategy of <a href="https://plato.stanford.edu/entries/civil-disobedience/">civil disobedience</a>, which entails breaking the law in surprisingly respectful ways. Uncivil obedience, on the other hand, involves following the law but in ways that disregard people’s expectations.</p>
<p>Like civil disobedience, the purpose of uncivil obedience is to change laws, but it does so by “<a href="https://www.jstor.org/stable/43387025">mastering the system’s rules</a>.” Protesters may appear to respect authority by carefully following the laws to show what they are doing is legal. But the behavior may be seen as “uncivil” by some because the behavior challenges social expectations, uses laws in ways unintended by their originators, or both.</p>
<p>Uncivil obedience has been used to challenge the practicality and fairness of laws and processes. For example, in the 1990s, protesters challenged low <a href="https://www.latimes.com/archives/la-xpm-1993-04-26-me-27445-story.html">speed limits</a> by strictly following them on a busy California freeway, leading to the disruption of traffic. The strategy has also been used to challenge
<a href="https://eu.gainesville.com/story/news/2006/05/02/industries-feel-effect-of-boycott/31482810007/">immigration policies</a> and <a href="https://doi.org/10.1086/709417">election laws</a>. </p>
<p>As a scholar of <a href="https://www.usd.edu/research-and-faculty/faculty-and-staff/kristina-lee">political and religious rhetoric</a>, I have seen uncivil obedience be embraced by people across the political spectrum as a way to challenge laws – and to specifically use religion as one element of those challenges.</p>
<h2>Conservative Christians step to the plate</h2>
<p>A federal law passed in 1993 called the <a href="https://www.britannica.com/topic/Religious-Freedom-Restoration-Act">Religious Freedom Restoration Act</a> has often been at the center of religious strategists embracing uncivil obedience. That law, which prohibits the government from creating substantial burdens on citizens’ free exercise of religion, was originally passed by Congress in response to a <a href="https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-resources-of-oregon-v-smith">1990 Supreme Court</a> case that critics argued restricted the religious freedom of Indigenous people. Over <a href="https://www.becketlaw.org/research-central/rfra-info-central/">20 states have passed similar laws</a>.</p>
<p>Although the law was originally designed to protect the rights of practitioners of all religions, <a href="https://www.hrc.org/resources/do-no-harm-act">particularly ones that are not as prominent</a> in the U.S. as Christianity, conservative Christians have <a href="https://scholarship.law.columbia.edu/faculty_scholarship/3931/">used its provisions</a> to resist progressive policies including <a href="https://eu.indystar.com/story/news/politics/2015/04/02/rfra-discrimination-concerns-really-surprise/70820966/">same-sex marriage</a> and the <a href="https://www.oyez.org/cases/2013/13-354">Affordable Care Act</a>. A common argument proponents use is that the law protects conservative Christian business owners and employees who view recognizing same-sex marriage or providing contraception as a violation of their religious beliefs. </p>
<p><a href="https://www.guttmacher.org/gpr/2018/05/bad-faith-how-conservatives-are-weaponizing-religious-liberty-allow-institutions">Opponents view</a> the conservative embrace of the idea of religious freedom as a bizarre interpretation of the law, arguing that they are using it for the purpose of justifying discrimination based on religious beliefs. Defenders of the practice, however, argue that they want <a href="https://eu.indystar.com/story/news/politics/2015/03/25/gov-mike-pence-sign-religious-freedom-bill-thursday/70448858/">religion to be free from government intervention</a>.</p>
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<a href="https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit stands at a lectern in front of a group of people." src="https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540446/original/file-20230801-15-o2s08v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In 2015, when he was governor of Indiana, Mike Pence supported a state version of the federal Religious Freedom Restoration Act.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/indiana-gov-mike-pence-speaks-during-a-press-conference-news-photo/468209982">Aaron P. Bernstein/Getty Images</a></span>
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<h2>Progressive groups turn the tables</h2>
<p>Now, progressive groups are increasingly using religious freedom arguments, including the Religious Freedom Restoration Act, to justify exemptions from conservative policies.</p>
<p>Most recently, progressive Christian clergy members, Jews, Muslims, Satanists and other religious plaintiffs have begun to <a href="https://www.politico.com/news/2023/06/21/legal-strategy-that-could-topple-abortion-bans-00102468">file lawsuits</a> in states challenging strict abortion bans. These lawsuits claim their religions allow reproductive health care and abortions, and that bans violate their religious freedom.</p>
<p><a href="https://thesatanictemple.com/pages/about-us">The Satanic Temple</a>, one of the religious organizations that embrace opposing injustices as part of its mission, has also used other religious freedom cases to demand the same rights as Christians. For example, the group uses the ruling of <a href="https://www.law.cornell.edu/supct/html/99-2036.ZO.html">Good News Club v. Milford Central Schools</a>, which determined schools cannot prohibit religious clubs from meeting on school ground after hours, to argue that schools also must allow <a href="https://thesatanictemple.com/pages/after-school-satan">Satanist clubs</a>. Satanists argue that they are just <a href="https://theconversation.com/how-after-school-clubs-became-a-new-battleground-in-the-satanic-temples-push-to-preserve-separation-of-church-and-state-209579">demanding the same rights that Christians</a> have won in court.</p>
<p>Progressive advocates claim they are championing religious freedom and equality. Their opponents, however, argued that plaintiffs are just engaging in “<a href="https://www.politico.com/news/2023/06/21/legal-strategy-that-could-topple-abortion-bans-00102468">political stunts</a>,” not advocating for <a href="https://becketnewsite.s3.amazonaws.com/20230118184008/Individual-Members-v.-Anonymous-Planitiff-Amicus-Brief.pdf">sincere religious beliefs</a>.</p>
<p>When uncivil obedience is used, its critics can frame such behavior as unprecedented, dangerous and insincere. Advocates, however, can argue that they are simply trying to follow the law and ask others to do the same. In religious freedom debates, these disputes are at the heart of a crucial question: where to establish the legal limits of religious freedom.</p>
<h2>Even failure can become a victory</h2>
<p>If uncivil obedience advocates are not successful, they can use their experiences to identify double standards in laws and policies, which can stir public anger over perceived biases regarding religious freedom. </p>
<p>When conservatives lose religious freedom cases, they <a href="https://www.moodymedia.org/articles/demise-religious-freedom-america/">can claim</a> such losses reflect bias against conservative Christian religious beliefs.</p>
<p>When minority religions or progressive Christians lose their religious freedom cases, <a href="https://thesatanictemple.com/pages/legal-action">they can point to the success</a> of conservative Christians in similar cases to highlight the courts’ protection of conservative religious principles.</p>
<p>Using uncivil obedience is a relatively safe protest strategy – at least legally speaking – because, unlike civil disobedience, those who use it do not risk being arrested. Yet it still allows people to draw attention to social issues in unprecedented ways that can spark public discussion.</p>
<p>There is risk, though. Uncivil obedience tactics can draw immense criticism from the public, who may view such tactics as manipulative or disingenuous. Additionally, although uncivil obedience can draw attention to double standards in societies, those standards can remain obstacles for those wanting social change. This can result in legal challenges that can be long and expensive to pursue but in which there is no guarantee of success.</p>
<p>In <a href="https://www.theguardian.com/books/2023/jun/21/utah-bible-school-libraries-ban-reversed">Utah</a>, while the Bible was initially banned, public pressure caused the school board to quickly reverse the decision.</p>
<p>In <a href="https://www.wptv.com/news/education/bible-wont-be-banned-in-palm-beach-county-public-schools">Florida</a> and <a href="https://eu.oklahoman.com/story/news/2023/05/20/ryan-walters-oklahoma-banned-books-freedom-from-religion-foundation-letter-bible/70238103007/">Oklahoma</a>, challenges to the Bible so far have been dismissed, with the holy book’s supporters arguing that the proposals should not be taken seriously. </p>
<p>Both Rabbi Silver and the Freedom From Religion Foundation have maintained they will continue the fight until attempts to censor books in schools cease, or all books are judged by the same standards.</p><img src="https://counter.theconversation.com/content/209928/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kristina M. Lee is on the board of the Secular Student Alliance.</span></em></p>
Distinct from civil disobedience, this legal strategy demands complete compliance with the law – even when there are loopholes that the laws’ creators didn’t intend.
Kristina M. Lee, Assistant Professor, University of South Dakota
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/209579
2023-07-21T12:27:57Z
2023-07-21T12:27:57Z
How after-school clubs became a new battleground in the Satanic Temple’s push to preserve separation of church and state
<figure><img src="https://images.theconversation.com/files/538563/original/file-20230720-15-z7dxq3.jpg?ixlib=rb-1.1.0&rect=4%2C1%2C1017%2C623&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lucien Greaves, spokesman for the Satanic Temple, which has pushed to establish after-school clubs. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lucien-greaves-is-spokesman-for-the-satanic-temple-a-group-news-photo/584806518?adppopup=true">Josh Reynolds for The Washington Post via Getty Images</a></span></figcaption></figure><p>As the start of the school year rapidly approaches, controversy can’t be far behind. But not all hot-button topics in education are about what goes on in class.</p>
<p>Over <a href="https://www.kalw.org/show/crosscurrents/2017-09-12/after-school-satan-club-tests-the-limits-of-church-and-state">the past few years</a>, conflict has trailed attempts to establish <a href="https://thesatanictemple.com/pages/after-school-satan">After School Satan Clubs</a> sponsored by <a href="https://thesatanictemple.com/">the Satanic Temple</a>, which the U.S. government <a href="https://apnews.com/general-news-6addf2f0ecb646919cb1cfcfdacfc6c1">recognizes as a religious group</a>.</p>
<p>Organizers have tried to form clubs in <a href="https://www.sacbee.com/news/california/article269038922.html">California</a>, <a href="https://www.the74million.org/article/colorados-first-ever-after-school-satan-club-to-launch-at-elementary-school/">Colorado</a>, <a href="https://www.usatoday.com/story/news/factcheck/2022/01/14/fact-check-after-school-satan-club-meeting-illinois-school/9189958002/">Illinois</a>, <a href="https://www.pressconnects.com/story/news/local/2023/02/17/afterschool-satan-club-at-maine-endwell-elementary-what-to-know/69914321007/?fbclid=IwAR1pwxyKXGdCJ4xvz-GRkByBhnToi3oCd5kcF1YAQJYCwKkqvPbkdRjpgdE">New York</a>, <a href="https://www.fox19.com/2022/01/31/after-school-satan-club-ohio-ag-dave-yost-urges-lebanon-superintendent-allow-free-speech-protesters-too/">Ohio</a>, <a href="https://thehill.com/homenews/state-watch/3981851-federal-judge-rules-pennsylvania-school-district-must-allow-after-school-satan-club/">Pennsylvania</a> and <a href="https://wng.org/roundups/satan-school-clubs-stir-liberties-debate-1673378465">Virginia</a>. Organizers in Broome County, New York, also formed <a href="https://www.wbng.com/2023/07/01/after-school-satan-club-launches-first-ever-summer-club/">a summer Satan Club</a> that meets at a local library.</p>
<p>Though there are estimates that only a handful of <a href="https://www.christianpost.com/news/good-news-club-says-satan-clubs-attack-on-teaching-christianity.html">Satan Clubs</a> are up and running, the groups raise significant questions about freedom of speech in K-12 public schools, particularly around religious issues – topics I teach and write about frequently as <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a faculty member specializing in education law</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A handful of people stand at a protest, with one holding a rosary and a sign that says, 'Satan is evil. EVIL HAS NO RIGHTS.'" src="https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/538557/original/file-20230720-21-oq91lp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Christian activist group demonstrates outside the Satanic Temple’s SatanCon, a convention held in Boston, on April 28, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-a-christian-activist-group-hold-a-demonstration-news-photo/1486162397?adppopup=true">Spencer Platt/Getty Images</a></span>
</figcaption>
</figure>
<h2>More ‘science’ than ‘Satan"</h2>
<p>Members of <a href="https://theconversation.com/what-the-satanic-temple-is-and-why-its-opening-a-debate-about-religion-131283">the Satanic Temple</a>, which was founded in 2013, do not profess beliefs about supernatural beings. The group emphasizes “<a href="https://thesatanictemple.com/blogs/the-satanic-temple-tenets/there-are-seven-fundamental-tenets">the seven tenets</a>,” which celebrate ideas like rationality, compassion and bodily autonomy.</p>
<p>What often draws attention, though, are the temple’s political and legal activities. The group has a history of <a href="https://apnews.com/article/abortion-religion-lawsuits-idaho-lobbying-f82f0d311692a9fe5fd4474a282cb4af">filing suits</a> to try to gain <a href="https://www.startribune.com/satanic-temple-loses-court-battle-over-placing-monument-in-belle-plaine/600104852/">the same rights</a> afforded to Christian groups, in an attempt to <a href="https://www.vox.com/identities/2017/10/31/16560150/religion-god-resistance-satanic-temple">highlight and critique</a> religion’s role in American society.</p>
<p>Because <a href="https://thesatanictemple.com/pages/after-school-satan">organizers of Satan Clubs</a> object to introducing religion into public education, they try to offer an alternative at schools hosting faith-based extracurricular groups. The Satanic Temple promotes clubs that focus on science, critical thinking, free inquiry and community projects, emphasizing that “<a href="https://cdn.shopify.com/s/files/1/0428/0465/files/ASSC_Brochure_5-24-2022.pdf?v=1653598764">no proselytization or religious instruction takes place</a>” in meetings.</p>
<p>Litigation around Satan Clubs arose in 2023 when a school board in Pennsylvania refused to allow a club to meet in an elementary school. In May, a <a href="https://www.aclupa.org/sites/default/files/field_documents/38_opinion_re_pi.pdf">federal trial court</a> ruled that the school board could not ban the club, since it allowed other types of clubs. By allowing groups to use school facilities, the court explained, officials had created a public forum. Therefore, excluding any group because of its views would constitute discrimination, violating organizers’ <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> rights to freedom of speech.</p>
<h2>Equal access</h2>
<p>The principle that all student-organized extracurricular groups have equal access to educational facilities was established in 1981 with <a href="https://www.law.cornell.edu/supremecourt/text/454/263">Widmar v. Vincent</a>, a dispute from a public university in Kansas City, Missouri. The Supreme Court determined that once campus officials had created a forum for the free exchange of ideas by student groups, they could not prevent a faith-based club from meeting solely due to the religious content of its speech.</p>
<p>That requirement was extended to secondary schools under <a href="https://www.law.cornell.edu/uscode/text/20/4071">the Equal Access Act</a>, which Congress adopted in 1984. The act applies to public secondary schools where educators create “limited open fora,” meaning non-instructional time when clubs run by students, not school staff, are allowed to meet. Officials cannot deny clubs opportunities to gather due to “the religious, political, philosophical, or other content of the speech at such meetings.”</p>
<p>The Equal Access Act specifies that voluntary, student-initiated clubs cannot “materially or substantially interfere” with educational activities. Further, groups cannot be sponsored by school officials, and educators may only be present if they do not participate directly. Finally, the act forbids people who are not affiliated with the school, such as local residents or parents, from directing, conducting, controlling or regularly attending club activities. </p>
<p>The Supreme Court upheld and extended the Equal Access Act’s logic in <a href="https://www.law.cornell.edu/supct/html/91-2024.ZO.html">two major cases</a>. In 1990’s <a href="https://www.law.cornell.edu/supremecourt/text/496/226">Board of Education of Westside Community Schools v. Mergens</a>, for example, the justices reasoned that because allowing a religious club in a public school in Nebraska did not endorse religion, it had to be permitted. Afterward, federal courts in <a href="https://casetext.com/case/colin-v-orange-unified-school-district">California</a>, <a href="https://case-law.vlex.com/vid/franklin-cent-gay-str-893638475">Indiana</a>, <a href="https://casetext.com/case/gay-straight-al-of-yulee-h-s-v-s-bd-of-nassau">Florida</a> and <a href="https://casetext.com/case/boyd-county">Kentucky</a> expanded the act’s reach to GSA Clubs, formerly known as <a href="https://www.aclu.org/documents/gsa-court-victories-guide-lgbtq-high-school-students">Gay-Straight Alliances</a> – clarifying that “viewpoint discrimination” was impermissible against other nonreligious clubs. </p>
<p>In the recent dispute from Pennsylvania, the Satan Club’s organizers relied on <a href="https://www.law.cornell.edu/supremecourt/text/99-2036">Good News Club v. Milford Central School</a>, a 2001 case from New York. The dispute arose when a school board refused to permit <a href="https://www.christianpost.com/news/good-news-club-says-satan-clubs-attack-on-teaching-christianity.html">the Good News Club</a> – a non-school-sponsored, faith-based group that has several thousand branches in the U.S. – to meet after class with participants’ parental consent. Yet officials allowed the Boy Scouts, Girl Scouts and 4-H Club to meet and talk about similar topics from secular points of view in an elementary school, so the Supreme Court decided that its refusal constituted unlawful viewpoint discrimination. Given students’ ages, parents or other adults are allowed to be involved in elementary school activities.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Eight teenagers, seen from above, Istand in an empty church while holding hands and bowing their heads." src="https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/538568/original/file-20230720-23-8kccrj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In many districts, religious groups can meet in schools after classes – but only under certain conditions.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/teens-worship-together-royalty-free-image/154934243?phrase=christian+club&adppopup=true">pastorscott/E+ via Getty News</a></span>
</figcaption>
</figure>
<h2>Expose children to new ideas?</h2>
<p>Following the Equal Access Act, some boards banned all <a href="https://www.adl.org/resources/tools-and-strategies/student-initiated-religious-clubs">non-curriculum-related clubs</a> in attempts <a href="https://www.hillmenmessenger.com/opinions/2011/03/22/school-in-texas-bans-all-clubs-in-leiu-of-gsa/">to avoid controversy</a>. Perhaps the Pennsylvania board will go this route as well.</p>
<p>In an increasingly intellectually diverse world, though, children are bound to encounter ideas with which they disagree – and I would argue each encounter can sharpen their critical thinking. As <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/30/1175/2416990/">a federal trial court judge in Missouri</a> once observed, provocative speech “is most in need of the protections of the First Amendment. … The First Amendment was designed for this very purpose.”</p><img src="https://counter.theconversation.com/content/209579/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The controversial – and often misunderstood – extracurricular groups tend to raise controversy. But under equal access laws, schools can’t discriminate against a club based on its point of view.
Charles J. Russo, Joseph Panzer Chair in Education and Research Professor of Law, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/207103
2023-06-07T13:23:25Z
2023-06-07T13:23:25Z
Oklahoma OKs the nation’s first religious charter school – but litigation is likely to follow
<figure><img src="https://images.theconversation.com/files/530470/original/file-20230607-19-tzkryd.jpg?ixlib=rb-1.1.0&rect=6%2C3%2C2111%2C1406&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Courts have wrestled with questions about public funds for students at religious schools for decades.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/catholic-school-royalty-free-image/539002989?phrase=catholic+school&adppopup=true">Godong/Stone via Getty Images</a></span></figcaption></figure><p>U.S. courts have long wrestled with the extent to which government funding <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">can be used at private religious schools</a>. And on June 5, 2023, Oklahoma’s five-person Statewide Virtual Charter School Board pushed this much-debated question into new territory by approving plans for a religious charter school – the first in the nation.</p>
<p>Under the proposed charter, St. Isidore of Seville Catholic Virtual School plans to open in the fall of 2024 with up to 500 <a href="https://www.kgou.org/2023-06-05/oklahoma-charter-school-board-approves-application-for-nations-first-publicly-funded-religious-school">K-12 students</a> from across the state. The school would be run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, but, like all charter schools, would be paid for with taxpayer dollars.</p>
<p>School choice advocates have <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">won key cases at the Supreme Court</a> in recent years, opening up more ways for public dollars to support faith-based education. A charter school – privately operated, but publicly funded – would be the most dramatic of these challenges to how the separation of church and state applies to education.</p>
<p>“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” Oklahoma Attorney General Gentner Drummond said in a statement <a href="https://apnews.com/article/religious-charter-school-oklahoma-be6e51ffcdaeb393c4be34a6f27feba4?user_email=749e9d2568002efab588f57f3ab140bff3f59d39817c4f7cc52171bc9a261656&utm_medium=Morning_Wire&utm_source=Sailthru&utm_campaign=MorningWire_June06_2023&utm_term=Morning%20Wire%20Subscribers">after the Monday vote</a>, warning that the board and state will likely face legal challenges.</p>
<p>The key question is not whether a charter would help or harm local education, but whether explicitly religious instruction at charter schools is constitutional, given <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment’s</a> protections against government establishment of religion. Moreover, Oklahoma law <a href="https://oksenate.gov/sites/default/files/2019-12/os70.pdf">requires charter schools to be nonsectarian</a>.</p>
<h2>Recent trend</h2>
<p>Advocates of <a href="https://www.the74million.org/article/analysis-opening-the-door-to-faith-based-charter-schools/">expanding public funding to faith-based schools</a> have been encouraged by three recent Supreme Court cases that upheld greater aid to their students. </p>
<p>All three of these cases relied on a legal idea <a href="https://www.worldcat.org/title/872266049">I have written about</a> called the “child benefit test.” Essentially, according to this concept, it is constitutional under some circumstances to provide public funds to students who attend faith-based private schools or their parents – but not directly to the schools, as would happen with Oklahoma’s charter school.</p>
<p>The first of these decisions, 2017’s <a href="https://www.law.cornell.edu/supremecourt/text/15-577">Trinity Lutheran Church of Columbia v. Comer</a>, dealt with a private Christian preschool that was denied public grants to update its playground. School administrators sued, arguing that denying generally available funding constituted religious discrimination in violation of the First Amendment’s protections for freedom of religion. The high court agreed.</p>
<p>Three years later, <a href="https://www.law.cornell.edu/supremecourt/text/18-1195">Espinoza v. Montana Department of Revenue</a> further opened up government aid to private religious school pupils, relying on Trinity Lutheran. A 5-4 court ruled that Montana’s tax credit program for parents sending their children to independent schools must apply even if those schools are faith-based.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The back of a school bus seen driving along an autumn country road." src="https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530475/original/file-20230607-23-z1rail.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Heading to a religious school or a secular one?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/school-bus-on-country-road-royalty-free-image/AB07269?phrase=school+bus&adppopup=true">Stephen Simpson/Stone via Getty Images</a></span>
</figcaption>
</figure>
<p>In 2022, the court extended this perspective in a case from Maine, <a href="https://www.law.cornell.edu/supremecourt/text/20-1088">Carson v. Makin</a>. Maine, with its low population density, pays parents in areas lacking their own public schools to either transport their children to nearby public schools or a secular private school. The Supreme Court found that <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">this program should apply</a> to parents without a local public school who wish to send their child to a religious school as well.</p>
<h2>Rethinking church and state?</h2>
<p>By expanding the boundaries of permissible aid, these three cases have boosted proponents’ hopes for even greater public funding for faith-based schools.</p>
<p>Yet, it is important to keep in mind what likely prompted these changes in the first place: new faces on the Supreme Court. A majority of today’s justices tend to favor an “<a href="https://www.mtsu.edu/first-amendment/article/825/accommodationism-and-religion#:%7E:text=Accommodationism%20rests%20on%20the%20belief,or%20government%20hostility%20toward%20religion.">accommodationists</a>” interpretation of the First Amendment, meaning they largely reject the idea that it demands a “<a href="https://www.law.cornell.edu/wex/separation_of_church_and_state">wall of separation</a>” between church and state, so long as the government is not privileging one faith over another. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A huge building with ornate white columns seen with pink-flowered trees and an American flag." src="https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530476/original/file-20230607-28-jn50bw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New justices, new views.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/supreme-court-and-cherry-blossoms-royalty-free-image/1399070257?phrase=supreme+court&adppopup=true">John Baggaley/Moment via Getty Images</a></span>
</figcaption>
</figure>
<p>Nevertheless, the parameters of the “child benefit test” often used to justify greater public funding has been evolving for years. The concept – one that legal scholars use to describe the Supreme Court’s arguments, not a term the court has used itself – first emerged in a 1947 dispute from New Jersey, <a href="https://www.law.cornell.edu/supremecourt/text/330/1">Everson v. Board of Education</a>. In Everson, the court upheld a state statute that allowed local school boards to transport students to faith-based schools – mostly Roman Catholic ones – reasoning that the students, not the schools themselves, were the primary beneficiaries of state aid.</p>
<p>In another illustrative case, 2002’s <a href="https://www.law.cornell.edu/supct/html/00-1751.ZO.html">Zelman v. Simmons-Harris</a>, the Supreme Court allowed parents whose children attended Cleveland’s public school system, which was then failing state standards, to use public vouchers to attend faith-based schools instead. A majority of justices upheld the program’s constitutionality because, again, students were the primary beneficiaries, not the religious schools themselves.</p>
<h2>Eyes on Oklahoma</h2>
<p>Today, in what may be the largest expansion of the child benefit test, legislators in various states are considering laws to <a href="https://www.washingtonpost.com/education/2023/02/08/school-choice-vouchers-private-religious-school-huckabee-sanders/">expand how parents can participate in public education fund programs</a> even if their children attend private religious schools, such as by broadening voucher or tax-credit programs. However, the Oklahoma proposal was the first to consider establishing a charter school with religious instruction and standards. </p>
<p><a href="https://www.britannica.com/topic/charter-school">Charters</a>, which trace their origins to Minnesota in 1991, are publicly funded and part of local school districts, yet free from many regulations, such as standards about curricular content and teacher qualifications. The idea of <a href="https://fordhaminstitute.org/national/commentary/why-not-religious-charter-schools">faith-based charters</a> has attracted proponents for more than 20 years, but they have had little success until Oklahoma’s – which may never materialize, given the potential legal challenges. Americans United for Separation of Church and State <a href="https://www.4029tv.com/article/oklahoma-catholic-charter-school/44107888#">has already announced</a> it will “take all possible legal action to fight this decision and defend the separation of church and state that’s promised in both the Oklahoma and U.S. constitutions.”</p>
<p>Even the board that eventually approved St. Isidore, which is responsible for approving the state’s charter schools, was initially skeptical. On April 11, 2023, members unanimously voted <a href="https://www.washingtonpost.com/education/2023/04/12/oklahoma-religious-charter-school-catholic/">to reject the original proposal</a>. However, the board gave organizers 30 days to <a href="https://www.koco.com/article/oklahoma-state-board-rejects-proposal-public-catholic-charter-school/43570335">revise the proposal and try again</a>. The second attempt in June succeeded in a 3-2 vote.</p>
<p>If other states authorize faith-based charters, the new schools will likely be a boon to their religious organizers by facilitating students’ ability to attend. Proponents of charters, whether traditional or faith-based, support them as part of the larger school choice movement that seeks to give parents in failing districts opportunities to move their children into better schools without paying private school tuition.</p>
<p>Faith-based charters are likely to raise headaches for their supporters, too. Because charters must still comply with some state standards, faith-based charters could be subject to greater government oversight about issues such as policies on LGBTQ+ students and staff – <a href="https://hechingerreport.org/supreme-court-ruling-brings-an-altered-legal-landscape-for-school-choice/">a longtime sticking point</a> – or accepting <a href="https://www.edweek.org/leadership/charter-schools-more-likely-to-ignore-special-education-applicants-study-finds/2018/12">students with disabilities</a>. And it remains to be seen whether proponents of a Catholic charter school would be as supportive if a minority faith group proposed one.</p>
<p>While this legal battle is just heating up, I believe it has the potential to reshape public education as we have known it.</p>
<p><em>Editor’s note: This is an updated version of <a href="https://theconversation.com/plans-for-religious-charter-school-though-rejected-for-now-are-already-pushing-church-state-debates-into-new-territory-203541">an article originally published on April 17, 2023</a>.</em></p><img src="https://counter.theconversation.com/content/207103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The school’s approval may be the strongest challenge yet to limits on public money in religious schools.
Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/203541
2023-04-17T12:44:43Z
2023-04-17T12:44:43Z
Plans for religious charter school, though rejected for now, are already pushing church-state debates into new territory
<figure><img src="https://images.theconversation.com/files/520120/original/file-20230411-24-1a1qsx.jpg?ixlib=rb-1.1.0&rect=9%2C9%2C2106%2C1398&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Would religious charter schools be constitutional? More advocates are pushing to find out.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/praying-together-in-a-bible-study-royalty-free-image/505827292?phrase=god%20school&adppopup=true">FatCamera/E+ via Getty Images</a></span></figcaption></figure><p><em>An updated version of this article was published on June 7, 2023. <a href="https://theconversation.com/oklahoma-oks-the-nations-first-religious-charter-school-but-litigation-is-likely-to-follow-207103">Read it here</a>.</em></p>
<p>U.S. courts have long wrestled with the extent to which government funding can be used at private religious schools. School-choice advocates <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">have won key cases at the Supreme Court</a> in recent years, opening up more ways for public dollars to support faith-based education. But Oklahoma <a href="https://www.reuters.com/world/us/oklahoma-eyes-first-us-religious-charter-school-after-supreme-court-rulings-2023-04-06/">pushed the debate into unchartered territory</a> this spring with a proposal for a school that would have been the first of its kind: a Catholic charter, primarily paid for by taxpayers.</p>
<p>On April 11, 2023, the five-person board responsible for approving Oklahoma charters unanimously voted <a href="https://www.washingtonpost.com/education/2023/04/12/oklahoma-religious-charter-school-catholic/">to reject the proposal</a>, due to concerns about its governance structure and plans for special education students, <a href="https://www.oklahoman.com/story/news/education/2023/04/11/oklahoma-statewide-virtual-charter-school-board-rejects-catholic-school-vote/70100040007/">among other issues</a>. However, it gave organizers 30 days to <a href="https://www.koco.com/article/oklahoma-state-board-rejects-proposal-public-catholic-charter-school/43570335">revise the proposal and try again</a>.</p>
<p>Charter schools, which are publicly funded but generally run by independent organizations, have attracted ardent fans and foes <a href="https://www.npr.org/2012/09/02/160409742/from-a-single-charter-school-a-movement-grows">since they started in the early 1990s</a>. Yet the key question in this case is not whether a charter would help or harm local education, but whether explicitly religious instruction at charter schools is constitutional, given <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment’s</a> protections against government establishment of religion.</p>
<p>In late 2022, the then-attorney general of Oklahoma <a href="https://www.oklahoman.com/story/news/education/2022/12/02/oklahoma-ag-releases-opinion-on-religious-charter-schools/69695429007/">argued that</a> a state law barring faith-based charter schools was actually unconstitutional. The new attorney general who took office in January 2023 <a href="https://kfor.com/news/local/ag-drummond-rescinds-oconnor-era-opinion-on-religious-institution-charter-schools/">soon rescinded the opinion</a>, leaving the charter school proposal in legal limbo – and making it even more likely to wind up at the Supreme Court if the school board eventually approves the charter.</p>
<h2>Recent trend</h2>
<p>Advocates of <a href="https://www.the74million.org/article/analysis-opening-the-door-to-faith-based-charter-schools/">expanding public funding to faith-based schools</a> were encouraged by three recent Supreme Court cases that upheld greater aid to their students. All three of these cases relied on a legal idea <a href="https://www.worldcat.org/title/872266049">I have written about</a> called the “child benefit test.” Essentially, according to this concept, it is constitutional under some circumstances to provide public funds to students who attend faith-based private schools, or their parents – but not directly to the schools.</p>
<p>The first of these decisions, 2017’s <a href="https://www.law.cornell.edu/supremecourt/text/15-577">Trinity Lutheran Church of Columbia v. Comer</a>, dealt with a private Christian preschool that was denied public grants to update its playground. School administrators sued, arguing that to deny generally available funding constituted religious discrimination, in violation of the First Amendment’s protections for freedom of religion. The high court agreed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit speaks in front of a crowd in front of the Supreme Court, with people holding up balloons that spell out 'fair play' behind him." src="https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520124/original/file-20230411-20-plpe9a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Faith & Freedom Coalition Chairman Ralph Reed speaks in front of the Supreme Court before arguments in Trinity Lutheran Church of Columbia v. Comer.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/faith-freedom-coalition-chairman-ralph-reed-speaks-during-a-news-photo/670245268?adppopup=true">Mark Wilson/Getty Images</a></span>
</figcaption>
</figure>
<p>Three years later, <a href="https://www.law.cornell.edu/supremecourt/text/18-1195">Espinoza v. Montana Department of Revenue</a> further opened up government aid to private religious school pupils, relying on the Trinity Lutheran decision. A 5-4 majority ruled that Montana’s tax credit program for parents sending their children to independent schools must apply even if those schools are faith-based.</p>
<p>In 2022, the Court extended this perspective in a case from Maine, <a href="https://www.law.cornell.edu/supremecourt/text/20-1088">Carson v. Makin</a>. Maine, with its low population density, pays parents in areas lacking their own public schools to either transport their children to nearby public schools or a secular private school. The Supreme Court found that <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">this program should apply</a> to parents without a local public school who wish to send their child to a religious school, as well.</p>
<h2>Rethinking church and state?</h2>
<p>By expanding the boundaries of permissible aid, these three cases have boosted proponents’ hopes for even greater public funding for private faith-based schools – and now, with the charter proposal, hopes that there might be a path ahead for public religious schools, entirely paid for with taxpayer money. Yet, it is important to keep in mind what likely prompted these changes in the first place: new faces on the Supreme Court. A majority of today’s justices tend to favor an “<a href="https://www.mtsu.edu/first-amendment/article/825/accommodationism-and-religion#:%7E:text=Accommodationism%20rests%20on%20the%20belief,or%20government%20hostility%20toward%20religion.">accommodationists</a>” interpretation of the First Amendment, meaning they largely reject the idea that it demands a “<a href="https://www.law.cornell.edu/wex/separation_of_church_and_state">wall of separation</a>” between church and state, so long as the government is not privileging one faith over another. </p>
<p>Nevertheless, the parameters of the “child benefit test” often used to justify greater public funding has been evolving for years. The concept – which is one that legal scholars use to describe the Supreme Court’s arguments, not a term the court has used itself – first emerged in a 1947 dispute from New Jersey, <a href="https://www.law.cornell.edu/supremecourt/text/330/1">Everson v. Board of Education</a>. In that case, the court upheld a state statute that allowed local school boards to transport students to faith-based schools – mostly Roman Catholic ones – reasoning that the students, not the schools themselves, were the primary beneficiaries of state aid.</p>
<p>In another illustrative case, 2002’s <a href="https://www.law.cornell.edu/supct/html/00-1751.ZO.html">Zelman v. Simmons-Harris</a>, the Supreme Court allowed parents whose children attended Cleveland’s public school system, which was then failing state standards, to use public vouchers to attend faith-based schools. A majority of justices upheld the program’s constitutionality because, again, students were the primary beneficiaries, not the religious schools themselves. Moreover, students attended these schools as a result of their parents’ free choices, not because doing so was required by the state.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two rows of people in black robes pose for a formal portrait in front of red velvety curtains." src="https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520126/original/file-20230411-28-2y20ky.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A changing court means changing interpretations.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243795466?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Eyes on Oklahoma</h2>
<p>Now, in what may be the largest expansion of the child benefit test, legislators in various states are considering laws to <a href="https://www.washingtonpost.com/education/2023/02/08/school-choice-vouchers-private-religious-school-huckabee-sanders/">expand how parents can participate in public education fund programs</a> even if their children attend private religious schools, such as by broadening voucher or tax-credit programs. The Oklahoma proposal, however, had been the first to consider establishing a charter school with religious instruction and standards. </p>
<p><a href="https://www.britannica.com/topic/charter-school">Charters</a>, which trace their origins to Minnesota in 1991, are publicly funded and part of local school districts, yet free from many regulations, such as standards about curricular content and teacher qualifications. The idea of <a href="https://fordhaminstitute.org/national/commentary/why-not-religious-charter-schools">faith-based charters</a> has attracted proponents for more than 20 years, but they have had little success. If the proponents of the Catholic proposal in Oklahoma reapply to the school board and eventually succeed, it would likely encourage similar approaches elsewhere.</p>
<p>If states authorize faith-based charters, the new schools will likely be a boon to their religious groups and facilitate more students’ ability to attend. Proponents of charters, whether traditional or faith-based, support them as part of the larger school choice movement that seeks to give parents in failing districts opportunities to move their children into better schools without paying private school tuition.</p>
<p>Nevertheless, faith-based charters are likely to raise new headaches for their supporters, too. Charters are largely exempt from some state standards, but not all, and faith-based schools that converted into charters could be subject to greater government oversight about issues such as policies on LGBTQ+ students and staff – <a href="https://hechingerreport.org/supreme-court-ruling-brings-an-altered-legal-landscape-for-school-choice/">a longtime sticking point</a> – or having to accept <a href="https://www.edweek.org/leadership/charter-schools-more-likely-to-ignore-special-education-applicants-study-finds/2018/12">students with disabilities</a>, just as all public schools do.</p>
<p>While this legal battle is just heating up, it has the potential to reshape public education as we have known it.</p><img src="https://counter.theconversation.com/content/203541/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Using public funds to support students at private religious schools is one thing, but establishing faith-based institutions within public districts is another.
Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/168232
2021-11-29T13:29:51Z
2021-11-29T13:29:51Z
Money, schools and religion: A controversial combo returns to the Supreme Court
<figure><img src="https://images.theconversation.com/files/432859/original/file-20211119-17-r9f8hi.jpg?ixlib=rb-1.1.0&rect=38%2C0%2C2077%2C1332&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Carson v. Makin comes on the heels of other SCOTUS cases about aid to students in religious schools.</span> <span class="attribution"><span class="source">franckreporter/E+ via Getty Images</span></span></figcaption></figure><p><em>An updated version of this article was published on June 21, 2022. <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">Read it here</a>.</em></p>
<p>Since 1947, one topic in education has regularly come up at the Supreme Court more often than any other: <a href="https://ecommons.udayton.edu/eda_fac_pub/71/">disputes over religion</a>.</p>
<p>That year, in <a href="https://www.oyez.org/cases/1940-1955/330us1">Everson v. Board of Education</a>, the justices upheld a New Jersey law allowing school boards to reimburse parents for transportation costs to and from schools, including religious ones. According to <a href="https://constitution.congress.gov/constitution/amendment-1/">the First Amendment</a>, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” – an idea courts often interpreted as requiring “a wall of separation between church and state.” In Everson, however, the Supreme Court upheld the law as not violating the First Amendment because children, not their schools, were the primary beneficiaries. </p>
<p>This became known as the “<a href="https://sk.sagepub.com/reference/educationlaw/n62.xml">child benefit test</a>,” an evolving legal idea used to justify state aid to students who attend religious schools. In recent years, the court has expanded the boundaries of what aid is allowed. Will it push them further?</p>
<p>This question was in the spotlight Dec. 8, 2021, when <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-1088_bp7c.pdf">the court heard arguments</a> in a case from Maine, <a href="https://www.oyez.org/cases/2021/20-1088">Carson v. Makin</a>. Carson has drawn intense interest from educators and religious-liberty advocates across the country – as illustrated by the large number of <a href="https://www.scotusblog.com/case-files/cases/carson-v-makin/">amicus curiae</a>, or “friend of the court,” briefs filed by groups with interests in the outcome.</p>
<p>To the <a href="https://ballotpedia.org/School_choice_in_the_United_States">school choice</a> movement – which advocates affording families more options beyond traditional public schools – Carson represents a chance for more parents to give their children an education in line with their religious beliefs. Opponents fear it could establish a precedent of requiring taxpayer dollars to fund religious teachings. </p>
<h2>SCOTUS’ shift in thought</h2>
<p>As a faculty member <a href="https://udayton.edu/directory/education/eda/russo_charles.php">who focuses on education law</a>, I have often written about the Supreme Court’s decisions about religion in schools. In the almost 75 years since Everson, the court’s thinking about aid to students who attend religious schools has evolved.</p>
<p>In 1993, justices heard <a href="https://www.oyez.org/cases/1992/92-94">Zobrest v. Catalina Foothills School District</a>, which centered on a student who was deaf. Under the <a href="https://sites.ed.gov/idea/">Individuals with Disabilities Education Act</a>, the public school board provided him with an interpreter. When he enrolled in a Catholic high school, the justices ruled that the board still had to provide him with an interpreter because this was a discrete service that assisted him and no one else. Ever since, the court has allowed greater aid to students attending religious schools.</p>
<p>Two recent judgments have continued that trend. In 2017’s <a href="https://www.oyez.org/cases/2016/15-577">Trinity Lutheran Church of Columbia v. Comer</a>, the court reasoned that states cannot deny religious people or religious institutions generally available public benefits simply because they are religious. Three years later, in <a href="https://www.oyez.org/cases/2019/18-1195">Espinoza v. Montana Department of Revenue</a>, the court invalidated a provision in the state constitution barring “religious schools from public benefits solely because of the religious character of the schools.” This decision meant parents in Montana who enrolled their children in faith-based schools could participate in a state tuition tax credit program.</p>
<h2>Mainers’ education</h2>
<p><a href="https://www.maine.gov/legis/const/">Maine’s Constitution</a> mandates the creation of public schools. But many rural towns don’t have <a href="https://www.maine.gov/doe/sites/maine.gov.doe/files/inline-files/SAU2020_21Map_FINAL.pdf">their own school system</a>: In fact, of the 260 “school administrative units” in Maine, more than half <a href="https://www.supremecourt.gov/DocketPDF/20/20-1088/197324/20211022151803212_Brief%20of%20Respondent%2010%2022%2021.pdf">lack a secondary school</a>. </p>
<p>In areas without access to public schools, Maine allows students to attend other public or private schools at public expense, but not religious ones. <a href="https://www.mainelegislature.org/legis/statutes/20-a/title20-Asec2951.html">The state requires</a> approved schools to be nonsectarian, “in accordance with the First Amendment of the United States Constitution.”</p>
<p>Carson v. Makin arose when three sets of parents unsuccessfully filed suit on behalf of their children, arguing that the rule discriminated on the basis of religion. The <a href="https://www.govinfo.gov/app/details/USCOURTS-med-1_18-cv-00327/summary">federal trial court</a> in Maine ruled in favor of the state, affirming that its “tuitioning” statute did not violate the rights of the parents or their children. On appeal, the First Circuit unanimously affirmed <a href="https://casetext.com/case/carson-v-makin">in favor of the state</a>, rejecting all the parental claims.</p>
<h2>A closer look</h2>
<p>First, <a href="https://law.justia.com/cases/federal/appellate-courts/ca1/19-1746/19-1746-2020-10-29.html">the First Circuit decided</a> the requirement that schools be “nonsectarian” did not discriminate solely based on religion or punish the plaintiffs’ rights to exercise their religion. </p>
<p>This is because the rule has a “use-based” limitation – which may prove to be a crucial distinction. <a href="https://law.justia.com/cases/federal/appellate-courts/ca1/19-1746/19-1746-2020-10-29.html">In other words</a>, sectarian schools are denied funding not because of their religious identity, the First Circuit wrote, but because of “the religious use that they would make of it.” </p>
<p>It is “wholly legitimate” to restrict religion-based content, the court noted, because “there is no question that Maine may require its public schools to provide a secular educational curriculum rather than a sectarian one.” </p>
<p>[<em>3 media outlets, 1 religion newsletter.</em> <a href="https://theconversation.com/us/newsletters/this-week-in-religion-76/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=religion-3-in-1">Get stories from The Conversation, AP and RNS.</a>]</p>
<p>The First Circuit also rejected the parental claims that Maine’s “nonsectarian” requirement violated their rights to freedom of speech, because it was enacted to provide students with secular secondary educations and “does not commit to providing any open forum to encourage diverse views from private speakers.” </p>
<p>Quoting <a href="https://law.justia.com/cases/federal/appellate-courts/F3/386/344/632434/">Eulitt v. Maine</a>, another case about Maine’s tuitioning system, the court noted: “The fact that the state cannot interfere with a parent’s fundamental right to choose religious education for his or her child does not mean that the state must fund that choice.”</p>
<p>School-choice advocates had hoped that Trinity Lutheran and Espinoza would strengthen the Maine parents’ case, since they upheld the idea that the First Amendment requires the government to extend general benefits to religious institutions or individuals, so long as it is not discriminating against or in favor of particular religions. But the courts differentiated these cases, and
mused that if parents wish to forgo the free secular education Maine offers in its public schools or “tuitioning” program, they are free to pay tuition in the religious schools of their choice. </p>
<h2>The decision ahead</h2>
<p>During <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-1088_bp7c.pdf">oral arguments</a> at the Supreme Court Dec. 8, Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett, appeared skeptical of the constitutionality of Maine’s tuitioning program. These justices favor an “accommodationist” interpretation of the religion clauses in the First Amendment – meaning they tend <a href="https://ballotpedia.org/Establishment_Clause_of_the_First_Amendment">to read the Constitution</a> as requiring the government to not promote one religion over another, but not to forbid government from getting involved in religion at all. Therefore, they largely reject the “wall of separation” on the question of financial aid. </p>
<p>As such, these justices – a majority of the court – are likely to rule in favor of the parents challenging Maine’s program. For instance, <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-1088_bp7c.pdf">Kavanaugh commented</a> that “discriminating against all religions versus secular is itself a kind of discrimination that the court has said is odious to the Constitution” – pointedly alluding to Trinity Lutheran, and showing his skepticism about Maine’s explicit exclusion of religious schools.</p>
<p>The court is expected to render its judgment in Carson in late June or early July, near the end of its term. The case is unlikely to end disagreements over the limits of using taxpayer funds to assist students who attend religious schools. However, it will likely provide an indication of the Supreme Court’s position on the future of the child benefit test, as it seems to be softening on its attitude of maintaining a wall of separation between church and state when it comes to education and aid to students who attend religious schools.</p><img src="https://counter.theconversation.com/content/168232/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Carson v. Makin, a case from Maine about aid to students attending religious schools, goes to the Supreme Court on Dec. 8, 2021.
Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/146278
2020-12-14T13:34:22Z
2020-12-14T13:34:22Z
On the first day of Christmas…teachers got a legal headache over blurring the line between church and state
<figure><img src="https://images.theconversation.com/files/374474/original/file-20201211-14-de5yx7.jpg?ixlib=rb-1.1.0&rect=0%2C4%2C3000%2C2528&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">O Christmas tree, O Christmas tree...do you violate the establishment clause?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fourteen-days-of-christmas-the-fourteen-days-of-christmas-news-photo/161844425?adppopup=true">Jack Riddle/The Denver Post via Getty Images</a></span></figcaption></figure><p>During a school year <a href="https://www.usnews.com/news/education-news/articles/2020-11-17/mass-nationwide-school-closures-loom-as-coronavirus-cases-spike">disrupted by pandemic-related closures</a>, students across the U.S. will soon be absent for a scheduled reason: the annual Christmas break.</p>
<p>In New York City, the U.S.’s largest school district, children will <a href="https://www.schools.nyc.gov/about-us/news/2020-2021-school-year-calendar">be off from Dec. 24 to Jan. 1</a>. Officially called “winter” recess, the December hiatus coincides with Christian celebrations, adding to the number of approved days that many students take off from school on religious holidays, including <a href="https://www.nydailynews.com/new-york/education/nyc-schools-close-muslim-eid-holidays-article-1.2137025">Eid al-Fitr</a> and <a href="https://www.schools.nyc.gov/about-us/news/2020-2021-school-year-calendar">Yom Kippur</a>.</p>
<p>As an <a href="https://udayton.edu/directory/education/eda/russo_charles.php">academic who writes and teaches on education and the law</a> with a special interest in church-state issues, I find it fascinating to note how religious holidays came to be acknowledged in public schools. But these traditions also pose a legal challenge in the classroom and concern over blurring the line of separation between church and state. The reality is that in the lead-up to the winter break – or the “<a href="https://www.edweek.org/leadership/opinion-teaching-the-holidays-the-december-dilemma/2015/11">December dilemma</a>,” as some call it – <a href="https://doi.org/10.1080/00344087.2016.1169882">public school officials walk a fine line</a> when it comes to what they can and can’t display in classrooms in relation to Christmas.</p>
<h2>Holy days and holidays</h2>
<p>The observance of selected religious holidays in public schools has a long history in the United States. When <a href="https://www3.nd.edu/%7Erbarger/www7/compulso.html">compulsory attendance laws</a> emerged in the mid-19th century, they were heavily influenced by the religious beliefs and practices that followed the earliest European settlers to the American colonies.</p>
<p>In a piecemeal fashion that varied from one state to the next and even among school systems in the same states, <a href="https://doi.org/10.2307/3480702">school board officials recognized and broke for the Christian holidays</a> of Christmas and Easter, including Good Friday.</p>
<p>The unofficial religion of American public schools until well into the mid-20th century was Protestantism and typically <a href="https://www.reuters.com/article/us-usa-religion-schools/religion-and-controversy-always-part-of-u-s-education-idUSTRE75829R20110609">followed the teachings of the locally dominant Protestant churches</a>.</p>
<p>Because Catholic immigrants – and their children – were <a href="https://doi.org/10.1525/rac.1999.9.1.03a00040">often unwelcomed in the 19th-century United States</a>, a meeting of bishops at the Third Plenary Council of Baltimore in 1884 decreed that <a href="https://www.jstor.org/stable/25014920?seq=1">all parishes had to maintain schools</a> to which parents were obligated to send their children. As a result, time off for Christmas and Easter became firmly set in Catholic schools as it was in public schools.</p>
<p>Christianity remains the <a href="https://www.pewforum.org/religious-landscape-study/">largest single faith</a> in the United States. But growing religious diversity has seen more religious holy days being marked in public schools. Still, few <a href="https://brilliantmaps.com/u-s-counties-where-schools-close-for-jewish-holidays/">school boards nationally close in honor of the Jewish holidays</a>. And, until very recently, the holy days of other faiths were completely ignored. New York City was one of the earliest, <a href="https://www.csmonitor.com/USA/Education/2016/0115/Why-some-US-districts-are-adding-Muslim-holidays-to-the-school-calendar">acknowledging Muslim holidays from the 2015-16 school year</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"573075877677961216"}"></div></p>
<p>Similarly, in 2017-18 six suburban school districts in New York state <a href="https://www.longisland.com/news/04-12-17/six-long-island-school-districts-declare-holiday-on-hindu-festival-diwali.html">declared a holiday on the Hindu festival Diwali</a>.</p>
<p>But these are the exception rather than the rule. A <a href="https://digitalcommons.law.byu.edu/elj/vol2018/iss2/2/">study of the 2017-18 school year</a>, found that of the 20 largest school systems in the U.S., only New York City, Philadelphia and Palm Beach, Florida, closed for Rosh Hashana, and only New York City closed for Yom Kippur and Eid al-Adha. None of the school systems closed for Diwali.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/374509/original/file-20201211-15-7c916u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Muslim holidays have been added to the school vacation days in New York City.</span>
<span class="attribution"><span class="source">AP Photo/Mark Lennihan</span></span>
</figcaption>
</figure>
<p>Things are changing in the face of growing religious diversity in the U.S. Educational leaders and lawmakers in states such as <a href="https://newyork.cbslocal.com/2019/03/06/new-york-state-senate-school-holiday-bill-hindu-sikh-muslim-holidays/">New York</a> and <a href="https://www.edweek.org/leadership/schools-reconsider-the-calendar-as-students-grow-more-diverse/2020/03">Michigan</a> have taken recent steps to ensure that the religious holy days of other faiths are commemorated in public school. </p>
<h2>Mixed legal messages</h2>
<p>Meanwhile the status of how religious holidays can be marked in class remains unclear. The Supreme Court has yet to address such a case directly. Arguably, the leading case on religious holidays arose 40 years ago, when the <a href="https://law.justia.com/cases/federal/appellate-courts/F2/619/1311/200625/">Eighth Circuit upheld guidelines</a> that a school board in South Dakota developed for use in connection with religious observances, most notably Christmas.</p>
<p>The court suggested that explanations of historical and contemporary values relating to religious holidays were permissible, as was the use of religious symbols as examples and the integration of music, art, literature and drama with religious themes if they were presented objectively as a traditional part of the cultural and religious heritages of holidays.</p>
<p>Other rulings have teachers walking a fine, but murky, line. While the <a href="https://www.law.cornell.edu/supremecourt/text/374/203">Supreme Court has ruled that educators cannot allow overt religious activities</a> such as prayer and Bible reading in schools, justices added that “nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”</p>
<p>The court has yet to set clear parameters about how religious holidays can be celebrated in public schools and whether granting access to all faith traditions is either constitutionally necessary or acceptable.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<h2>To gift or not?</h2>
<p>Classroom activities present three special concerns. Courts agree that public school teachers cannot permit religious activities such as prayer or the use of religious music in class absent curricular connections. The <a href="https://www.courtlistener.com/opinion/1272539/curry-ex-rel-curry-v-hensiner/">Sixth Circuit in 2008 went so far as to affirm</a> that a fifth grader in Michigan could not sell candy cane Christmas tree ornaments he made as part of a school project if they were attached to religious cards “promoting Jesus.”</p>
<p>But a <a href="https://law.justia.com/cases/federal/district-courts/texas/txsdce/4:2006cv00527/434852/62/">federal trial court in Texas two years later allowed students to sell “holiday” cards</a> with biblical messages because doing so was not disruptive to school activities.</p>
<p>A second concern – the displays of religious art such as Nativity scenes or paintings – is trickier. Again, while there is no Supreme Court judgment in regard to K-12 schools, an argument can be made from lower court orders. One such case from<a href="https://openjurist.org/619/f2d/1311/florey-v-sioux-falls-school-district-49-5"> South Dakota found</a> that religious art in schools may be permissible as parts of larger displays but that it cannot be overtly Christian and must emphasize the secular aspects of the season. Under this interpretation, placing Nativity scenes or displaying religious objects or paintings alone in schools, regardless of the time of year, <a href="https://openjurist.org/33/f3d/679/washegesic-v-bloomingdale-public-schools">likely violates the First Amendment</a> by endorsing Christianity. </p>
<p>A case illustrative of the confusion over classroom displays arose in New York City in 2006. The <a href="https://law.justia.com/cases/federal/appellate-courts/F3/437/1/477667/">Second Circuit decided that public school officials</a> could allow displays of menorahs during Hanukkah and stars and crescents during Ramadan because both were deemed multicultural secular symbols. But the court forbade the display of a Nativity scene due to its explicitly religious nature.</p>
<p>Gift-giving during the holiday season represents a third concern. Educators probably can permit “secret Santa” exchanges as long as they are secular in nature and do not invoke any references to Christmas. However, courts largely agree that teachers cannot allow students to exchange identifiable Christian gifts, such as candy canes or pencils with attached religious messages, while in class.</p>
<h2>Teachable moments</h2>
<p>What can be lost in this legal quagmire is, I believe, the chance to <a href="https://www.edweek.org/teaching-learning/opinion-public-school-students-need-to-study-religion/2018/10">engage children in religious literacy</a>. If educators and the courts prohibit students from learning about the religious traditions of their peers, especially when teachable moments emerge during holidays, one must wonder how children can develop tolerance of – and respect for – faiths different from their own. </p>
<p>The challenge, then, for public school educators is walking the fine line by exposing children to religious celebrations while steering clear of violating the Constitution by making certain that they teach about religion rather than proselytize a particular form of belief.</p><img src="https://counter.theconversation.com/content/146278/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Educators walk an fine line when it comes to marking religious holidays. But in so doing, are they missing an opportunity for teachable moments on faith issues?
Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of Dayton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/149609
2020-11-17T15:50:55Z
2020-11-17T15:50:55Z
Polish women reject the Catholic Church’s hold on their country
<figure><img src="https://images.theconversation.com/files/369716/original/file-20201117-21-10yw37r.jpg?ixlib=rb-1.1.0&rect=105%2C23%2C3578%2C1471&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Women's rights activists with posters of the Women's Strike symbol protest in Warsaw, Poland, in October 2020 against a further tightening of Poland's already restrictive abortion laws. </span> <span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span></figcaption></figure><p>The protesting women of Poland <a href="https://www.theguardian.com/world/2020/nov/06/a-backlash-against-a-patriarchal-culture-how-polish-protests-go-beyond-abortion-rights">have captured the world’s attention</a>. Since October, they’ve taken to the streets to protest restrictions on reproductive rights that were already almost non-existent. </p>
<p>But far beyond just a fight against the <a href="https://www.msn.com/en-us/news/world/tusk-says-trump-kaczynski-behave-like-bad-tempered-brats/ar-BB1aKxpy">ruling right-wing Law and Justice party</a>, the protesters are rejecting the Catholic Church and its influence over the Polish state. </p>
<p>Their protests were precipitated by the recent decision of the Constitutional Tribunal — the highest Polish court, under fire recently for two <a href="https://www.dw.com/en/poland-elects-controversial-judges-to-constitutional-court/a-51376755">political appointments</a> — to ban abortions in cases of severe fetal abnormalities. Abortion is now only permitted if the pregnancy results from a crime — either rape or incest — or if it threatens the woman’s life. </p>
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Read more:
<a href="https://theconversation.com/polands-abortion-ruling-amounts-to-a-ban-but-it-will-not-end-access-148819">Poland's abortion ruling amounts to a ban – but it will not end access</a>
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</p>
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<p>The court’s decision, as contentious as it was, is not being made public in a move <a href="https://www.nytimes.com/2020/11/04/world/europe/poland-abortion-law-delay.html">that is widely seen as illegal</a>.</p>
<h2>Largest protests since Solidarity</h2>
<p>The Polish protests have been the largest since the Solidarity demonstrations <a href="https://www.nytimes.com/2020/10/27/world/europe/poland-abortion-ruling-protests.html?action=click&module=RelatedLinks&pgtype=Article">of the 1980s</a>. On their busiest days, as many as 430,000 women and their supporters have taken to the streets. </p>
<figure class="align-right ">
<img alt="A young woman holds up a sign as she protests." src="https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3800%2C2559&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/369167/original/file-20201112-23-1v2tpff.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A woman participates in a protest against Poland’s anti-abortion laws in Warsaw in October.</span>
<span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span>
</figcaption>
</figure>
<p>They’re protesting not just in large cities but also small towns and villages. Conservative counts estimate there have been protests in <a href="http://strajkkobiet.eu/mapa-wydarzen/">more than 400 communities</a>, often drawing larger crowds than expected. The protests have particularly mobilized <a href="https://krytykapolityczna.pl/kraj/przyborska-wowrzeczka-mlodziez-zaangazowanie-strajk-kobiet-wywiad/">young people</a>, who have expressed profound anger at what they view as a further assault on their reproductive rights. </p>
<p>Their actions have ranged from blocking streets to actually <a href="https://www.thestar.com/news/world/europe/2020/10/25/polish-women-protest-new-abortion-restriction-in-churches.html">entering Roman Catholic churches</a> and disrupting services. </p>
<p>Taking the protests into houses of worship has been so startling and unprecedented that the chairman of the Law and Justice party issued an appeal to far-right nationalist groups to mobilize and protect “<a href="https://www.euronews.com/2020/10/28/poland-pro-abortion-protests-kaczynski-call-to-defend-churches-sparks-opposition-fury">our churches.</a>”</p>
<figure class="align-center ">
<img alt="Armed members of a far-right organization guard a Polish Catholic Church." src="https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/369333/original/file-20201113-19-4zhu89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Members of a far-right organization stand guard in front of the Holy Cross Church, fronted by a row of police officers, in Warsaw on Oct. 28, 2020.</span>
<span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span>
</figcaption>
</figure>
<p>The protesting women have wide-ranging demands in an apparent rejection of what’s known as the conservative compromise, a 1993 family planning law that effectively ended reproductive rights for Polish women and remains in place today. The parties that agreed to the conservative compromise have ruled the country since 2005. </p>
<p>Recent polls seem to confirm this rejection. The Law and Justice party is down in the polls — its support decreased from 40 to 30 per cent during two weeks of protests, and it sits at the lowest point <a href="https://wiadomosci.gazeta.pl/wiadomosci/7,114884,26471665,zmierzch-mitu-nieomylnego-wodza-i-niepokonanej-partii-kaczynski.html#s=BoxMMt3">since 2015</a>. But the opposing Civic Platform isn’t benefiting from its opponent’s popularity drop — its support remains stuck at about <a href="https://wiadomosci.gazeta.pl/wiadomosci/7,114884,26471665,zmierzch-mitu-nieomylnego-wodza-i-niepokonanej-partii-kaczynski.html#s=BoxMMt3">27 per cent</a>. </p>
<h2>Challenging the church’s hold on Poland</h2>
<p>The protesters aren’t just calling for the expansion of women’s as well as LGBTQ rights. They’re also demanding a <a href="http://strajkkobiet.eu/postulaty/">secular state</a> in a direct challenge to the power the church has had over Poland <a href="https://apnews.com/article/abec49701e4b444caae5f1e738849b90">since it transitioned to democracy in 1989</a>.</p>
<p>The church’s teachings have had an impact on beliefs about conception, contraception and abortion that have made their way into Polish law, as have Catholic views on in vitro fertilization and euthanasia. Its doctrines also influence Polish understanding of family and the rights of sexual minorities as well as access to divorce. </p>
<p>Catholic religious instruction is provided in public schools and funded by the state. The church also influences public conversations and attitudes by operating 120 publishing houses that publish 300 newspapers <a href="https://www.polityka.pl/tygodnikpolityka/kraj/1509032,1,przeswietlamy-majatek-kosciola.read">and other periodicals</a>, and by running the densest radio network in Europe. </p>
<p>That network comprises 38 regional radio stations, one national station, and boasts 117 transmission towers. For the sake of comparison, the next <a href="https://www.polityka.pl/tygodnikpolityka/kraj/1509302,1,kosciol-w-liczbach.read">biggest network, a private operation, has 10.</a></p>
<p>While this all suggests Polish society holds <a href="https://wiadomosci.gazeta.pl/wiadomosci/7,114884,26483162,polacy-popieraja-kompromis-aborcyjny-i-antyrzadowe-protesty.html#s=BoxMMt2">conservative views,</a> the mass protests signal that public attitudes are actually more liberal than those of the major political parties that have long backed the conservative compromise.</p>
<h2>The church is wealthy</h2>
<p>The church’s impact on social attitudes is fuelled by its wealth. It received vast land holdings in compensation for losses under <a href="https://www.polityka.pl/tygodnikpolityka/kraj/1509302,1,kosciol-w-liczbach.read">communism</a>, and it is now considered the largest landholder and landlord in Poland. </p>
<figure class="align-center ">
<img alt="Police and far-right militia remove a young Polish protester from a church." src="https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3856%2C2262&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=352&fit=crop&dpr=1 600w, https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=352&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=352&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=443&fit=crop&dpr=1 754w, https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=443&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/369710/original/file-20201117-15-1dk00ug.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=443&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Members of a far-right organization and police remove women from a church where they were protesting church support for tightening Poland’s already restrictive abortion law in Warsaw, Poland, on Oct. 25, 2020.</span>
<span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span>
</figcaption>
</figure>
<p>It also continues to be funded by the state. The extent of funding isn’t made public by the Polish government, but it is estimated to range between $340 million to $1.7 billion <a href="https://www.polityka.pl/tygodnikpolityka/kraj/1509032,1,przeswietlamy-majatek-kosciola.read">in Canadian dollars</a> per year. </p>
<p>This power and wealth remain undiminished, regardless of which political party is in office. The Law and Justice party is open about its theocratic tendencies and friendly ties to the church, but the liberal Civic Platform has never limited the church’s power, and it’s unclear if it’s ever tried while in power. </p>
<p>The women’s movement in Poland faces a powerful and as yet unchallenged adversary in the country’s Catholic Church. One source of hope for those supporting expanded reproductive rights is the fact that the protesters have correctly shone a spotlight on the church for its undue influence over the country’s politics.</p><img src="https://counter.theconversation.com/content/149609/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Korycki does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The women’s movement in Poland faces a powerful and as yet unchallenged adversary in the Catholic Church.The protesters have correctly shone a spotlight on the church for its hold on Polish politics.
Kate Korycki, Assistant Professor in Gender, Sexuality and Women's Studies, Western University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/148070
2020-10-20T19:40:32Z
2020-10-20T19:40:32Z
Beheading in France could bolster president’s claim that Islam is in ‘crisis’ – but so is French secularism
<figure><img src="https://images.theconversation.com/files/364353/original/file-20201019-21-1qrz6hv.jpg?ixlib=rb-1.1.0&rect=69%2C0%2C5749%2C3882&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An homage to Samuel Paty, a teacher murdered after showing caricatures of the Prophet Mohammed from the satirical magazine Charlie Hebdo, Oct. 18, 2020. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-gathered-in-place-de-la-republique-in-paris-france-news-photo/1229165233?adppopup=true">Adnan Farzat/NurPhoto via Getty Images</a></span></figcaption></figure><p>A French high school teacher who had shown caricatures of the Prophet Muhammad to his class <a href="https://www.liberation.fr/france/2020/10/16/terrorisme-un-enseignant-decapite-dans-les-yvelines_1802673">was beheaded on Oct. 16 by an 18-year-old Muslim refugee</a> in what <a href="https://www.bbc.com/news/world-europe-54579403">France’s President Emmanuel Macron characterized as an “Islamist terrorist attack.”</a></p>
<p>The killing is the latest high-profile attack by a Muslim extremist in France, coming after the <a href="https://theconversation.com/why-paris-50736">2015 massacre at Charlie Hebdo magazine</a> and the <a href="https://www.bbc.com/news/world-europe-36801671">2016 truck attack</a> in Nice. It also occurred two weeks after Macron gave <a href="https://www.aljazeera.com/news/2020/10/2/macron-announces-new-plan-to-regulate-islam-in-france">a controversial speech defining Islam</a> as “<a href="https://www.elysee.fr/emmanuel-macron/2020/10/02/la-republique-en-actes-discours-du-president-de-la-republique-sur-le-theme-de-la-lutte-contre-les-separatismes">a religion that is in crisis today all over the world</a>.”</p>
<p>France, which colonized many Muslim-majority territories in Africa and the Levant in the 19th and 20th centuries, such as Algeria and Mali, has Western Europe’s largest Muslim minority – <a href="https://www.pewresearch.org/fact-tank/2017/11/29/5-facts-about-the-muslim-population-in-europe/">6 million people, or 9% of its population</a>. </p>
<p>Macron’s Oct. 2 speech outlined a legislative proposal to fight “Islamist separatism.” If passed in Parliament, it would essentially ban home-schooling of all children aged 3 and up and prevent foreign-trained imams from leading French mosques. The goal, said the president, is “<a href="https://www.elysee.fr/front/pdf/elysee-module-16114-fr.pdf">to build an Islam in France that can be compatible with the Enlightenment</a>.” </p>
<p>Macron’s analysis concludes, simply, that Islam is somehow at odds with modern Western society. But my <a href="https://www.cambridge.org/us/academic/subjects/sociology/sociology-religion/secularism-and-state-policies-toward-religion-united-states-france-and-turkey?format=PB">research on state secularism and religion</a> shows that the reality is much more complicated.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Macron speaks at a lectern with the French and EU flags behind him" src="https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/364504/original/file-20201020-19-1kpdj6t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">French President Emmanuel Macron.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/french-president-emmanuel-macron-delivers-a-speech-during-a-news-photo/1201691009?adppopup=true">Sebastien Bozon/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>French versus American secularism</h2>
<p>French secularism, which is embraced by both the <a href="https://www.cambridge.org/us/academic/subjects/politics-international-relations/comparative-politics/alien-citizens-state-and-religious-minorities-turkey-and-france?format=HB&isbn=9781108476942">progressive left and the Islamophobic right</a>, goes well beyond the American democratic concept of <a href="https://www.oyez.org/cases/1970/89">separating religion and state</a>. Called “laïcité,” it essentially excludes religious symbols from public institutions. France has <a href="https://berkleycenter.georgetown.edu/posts/the-weaponization-of-laicite">banned Muslim women’s headscarves in schools and outlawed religious face coverings everywhere</a>. There are no such bans in the United States.</p>
<p>While both America and France have ongoing debates about “Islamic fundamentalism” and “Muslim terrorists” and <a href="http://content.time.com/time/covers/0,16641,20100830,00.html">views that can be defined as Islamophobic</a> have some popular support, American democracy generally provides better opportunities for <a href="https://global.oup.com/academic/product/the-future-of-religious-freedom-9780199930913?lang=en&cc=us#">the integration of various religious groups</a>. </p>
<p>In France, <a href="http://www.assemblee-nationale.fr/connaissance/constitution.asp">the Constitution</a> defines the state only as secular, without delineating the boundaries of that secularism. In the United States, <a href="https://www.law.cornell.edu/constitution/first_amendment">the First Amendment</a> restricts the secular state’s engagement with religion, saying the government can neither establish a religion nor prohibit a religion’s free exercise. </p>
<p>It would be difficult for the U.S. to announce, as Macron did, a state-sponsored project to “<a href="https://uk.ambafrance.org/France-to-restore-the-Republic-to-fight-Islamist-separatism">forge a type of Enlightenment Islam</a>.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pupils in headscarves sit at desks" src="https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/364501/original/file-20201020-21-1nfbrgj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In France, Muslim girls may wear headscarves in Islamic private schools like the Alif school in Toulouse, but not in public schools.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/veiled-pupils-attend-a-lesson-in-a-classroom-on-may-11-2011-news-photo/114395069?adppopup=true">Eric Cabanis/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Indeed, 11 years before Macron voiced his provocative view, U.S. President Barack Obama gave a <a href="https://obamawhitehouse.archives.gov/the-press-office/remarks-president-cairo-university-6-04-09">famous speech on Islam</a> in Egypt in 2009, attempting to reset the relationship between America and the Muslim world.</p>
<p>Emphasizing Muslims’ contributions to American society, Obama said, “It is important for Western countries to avoid impeding Muslim citizens from practicing religion as they see fit – for instance, by dictating what clothes a Muslim woman should wear.”</p>
<p>Obama’s speech reflected an idealized American melting pot, a place where hyphenated identities like <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199930890.001.0001/acprof-9780199930890-chapter-11">Muslim-American</a> are common. </p>
<p>French secularism sees no hyphenated identities – only French or Not French.</p>
<h2>Islam and the secular state</h2>
<p>Some in France also see this rigid secularism as unequal to the challenges of <a href="https://www.cambridge.org/us/academic/subjects/sociology/sociology-religion/secularism-religion-and-multicultural-citizenship?format=HB&isbn=9780521873604">multiculturalism</a> and <a href="http://grease.eui.eu/wp-content/uploads/sites/8/2019/10/France-country-report.pdf">migration</a>. The eminent scholar <a href="https://www.seuil.com/ouvrage/laicites-sans-frontieres-jean-bauberot/9782020996167">Jean Bauberot</a>, for example, defends a more “pluralistic secularism” – one that tolerates certain religious symbols in public institutions. </p>
<p>France has in fact made many exceptions for Catholics. The government provides substantial public funding to <a href="https://press.princeton.edu/books/hardcover/9780691144214/the-emancipation-of-europes-muslims">private Catholic schools</a>, which educate about a quarter of all K-12 students, and six of 11 official holidays in France are <a href="https://en.wikipedia.org/wiki/Public_holidays_in_France">Catholic holidays</a>. </p>
<p>Too often, laïcité translates into an unwillingness to accommodate the religiously based demands of Muslims. </p>
<p>In 2015, a Muslim advocacy organization sued a municipal authority in France’s Burgundy region for refusing to <a href="https://www.theguardian.com/world/2015/oct/13/pork-school-dinners-france-secularism-children-religious-intolerance">offer an alternative to pork</a> in public school cafeterias. The court compelled the town to reverse its policy, but not because it <a href="https://www.theguardian.com/world/2017/aug/28/non-pork-meals-must-be-available-for-school-lunch-rules-french-court">violated religious freedom</a>. The court found the menu <a href="https://www.lemonde.fr/societe/article/2017/08/28/chalon-sur-saone-la-justice-annule-la-fin-des-menus-sans-porc-dans-les-cantines_5177551_3224.html">violated the children’s rights</a>.</p>
<p>France’s founding commitment to equality under the law likewise forestalls meaningful social debate on <a href="http://tupress.temple.edu/book/1122">racial discrimination</a>; its census does not even collect information on race. Although France’s biggest minority is mostly composed of <a href="https://www.nytimes.com/2020/10/02/world/europe/macron-radical-islam-france.html">nonwhite Muslim immigrants from its former colonies in Africa and their descendents</a>, Macron’s speech referenced only in passing to French colonialism.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=experts">Expertise in your inbox. Sign up for The Conversation’s newsletter and get expert takes on today’s news, every day.</a></em>]</p>
<h2>Blasphemy</h2>
<p>That said, I find some truth in Macron’s speech. But the “crisis” facing Islam lies in the historical and political failings of the Muslim world, not in the religion itself.</p>
<p>As my 2019 book, “<a href="https://www.cambridge.org/us/academic/subjects/politics-international-relations/comparative-politics/islam-authoritarianism-and-underdevelopment-global-and-historical-comparison?format=PB&isbn=9781108409476">Islam, Authoritarianism, and Underdevelopment</a>,” documents, many Muslim countries like Egypt, Iran and Saudi Arabia have long-lasting authoritarian regimes and chronic underdevelopment. In <a href="https://theconversation.com/execution-for-a-facebook-post-why-blasphemy-is-a-capital-offense-in-some-muslim-countries-129685">32 of the world’s 49 Muslim-majority countries</a>, blasphemy laws punish people who speak sacrilegiously about sacred things; in six countries, blasphemy is a capital offense. </p>
<p>These laws, which block freedom of expression, are more rooted in the <a href="https://theconversation.com/execution-for-a-facebook-post-why-blasphemy-is-a-capital-offense-in-some-muslim-countries-129685">interests of the conservative clergy and authoritarian rulers</a> than in the Islamic faith, my research shows. They actually contradict several Quranic verses that urge Muslims not to coerce or retaliate against people of other faiths. </p>
<p>Still, in Western countries where Muslims are a minority, extremists occasionally take it upon themselves to punish those who, in their view, mock the Prophet Muhammad. That has <a href="https://yalebooks.yale.edu/book/9780300124729/cartoons-shook-world">caused global controversies</a> over <a href="https://theconversation.com/why-theres-opposition-to-images-of-muhammad-36402">cartoons and movies</a>. At times, in France and beyond, it has led to an unacceptable outcome: murder.</p>
<p>Such killings, whether perpetrated by the state or by individuals, are tragedies. But to frame them as a purely religious problem ignores the socioeconomic and political origins of Islamic blasphemy laws, and the anti-democratic cultural consequences of authoritarianism in many Muslim countries. </p>
<p>It also overlooks the difficult reality that social alienation is an underlying factor in the <a href="https://behavioralpolicy.org/wp-content/uploads/2017/05/BSP_vol1is2_-Lyons-Padilla.pdf">radicalization of some young Muslims in the West</a>.</p>
<h2>Multiple secularisms, multiple Islams</h2>
<p>Macron’s speech made some gestures toward greater inclusion. </p>
<p>“I want France to become a country where we can teach the thoughts of Averreos and Ibn Khaldun,” he said, referencing two eminent Muslim thinkers of the 12th and 14th centuries, and envisioned “<a href="https://www.elysee.fr/emmanuel-macron/2020/10/02/la-republique-en-actes-discours-du-president-de-la-republique-sur-le-theme-de-la-lutte-contre-les-separatismes">a country that excels in the study of Muslim civilizations</a>.” </p>
<p>That plural in “civilizations” is meaningful. It acknowledges that Islam is not monolithic. Neither is French secularism. Both are complex systems with varied interpretations. </p>
<p>In truth, Macron doesn’t need to “build an Islam in France that can be compatible with the Enlightenment,” because that already exists. Whether French secularism can adapt to Islam is another question.</p><img src="https://counter.theconversation.com/content/148070/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ahmet T. Kuru does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Macron wants to ‘build an Islam in France that can be compatible with the Enlightenment.’ But that goal assumes France is compatible with Islam, says a Muslim scholar of religion and politics.
Ahmet T. Kuru, Professor of Political Science, San Diego State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/143793
2020-08-20T12:16:40Z
2020-08-20T12:16:40Z
Schools looking for space could turn to churches to host classes – doing so has a rich history
<figure><img src="https://images.theconversation.com/files/353266/original/file-20200817-14-1dvsm9u.jpg?ixlib=rb-1.1.0&rect=160%2C335%2C4352%2C2808&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Children evacuated from U.K. cities in WWII were taught in churches.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/school-in-a-church-children-evacuated-from-west-ham-and-news-photo/1053630860?adppopup=true">Hulton Archive/Getty Images</a></span></figcaption></figure><p>Could places of worship ease the burden of schools looking to reopen while giving students space to social distance? It might not be such an outlandish suggestion.</p>
<p>With space at a premium and places of worship still empty amid concerns of coronavirus spread, some education experts are <a href="https://www.washingtonpost.com/education/2020/07/17/school-coffee-shop-different-approach-teaching-learning-during-pandemic/">actively promoting the idea</a>. In New Haven, Connecticut, church leaders have already offered to <a href="https://www.newhavenindependent.org/index.php/archives/entry/pastors_pitch_church_/">give up their space to students looking for a place to take online classes</a>.</p>
<p>Concern by those determined to keep church and state separate has meant that the use of “religious spaces” for education has shrunk <a href="https://www.academia.edu/2844095/Historical_background_to_conflicts_over_religion_in_public_schools">over the last couple of centuries</a>, resulting in secular school systems becoming the standard for most countries.</p>
<p>But having spent 40 years <a href="https://isearch.asu.edu/profile/1591">studying the history of Christian churches and their social outreach</a>, I know there has never been a time in the history of Christianity – indeed the history of all major religions – when religious space was not used for educational purposes. </p>
<h2>Cathedral schools</h2>
<p>In the Europe that emerged from the collapse of the Roman Empire in the fifth century, most formal education took place inside religious spaces. Training of boys to read scriptures was a task typically performed in churches by bishops and their assistants. </p>
<p>The first institutions of learning in the Western Christian tradition were <a href="https://link.springer.com/chapter/10.1007/978-1-137-10841-8_2">cathedral schools</a>. During the day, the back pews <a href="http://www.humanstudy.org/history/2012-03-hudson-e.html">were filled with the best and brightest schoolboys</a> being taught the intellectual skills needed by priests.</p>
<p>Later, during the 10th century, <a href="https://www.ancient-origins.net/history/louis-pious-0011094">Louis the Pious</a>, son of Charlemagne, gave structure to the classes by mandating that a “scholasticus” – or master teacher – be appointed at cathedral schools. By the 12th century, the practice began of establishing corps of priests who lived at the cathedral and spent their days teaching.</p>
<p>These priests – called chapters of canons – established endowed chairs for teachers of different types of specialized knowledge. Chairs were filled by the most famous teachers or professors of the day, <a href="https://plato.stanford.edu/entries/abelard/">including the eminent philosophers Abelard</a> and <a href="https://plato.stanford.edu/entries/albert-great/">Albertus Magnus</a> as well as Albertus’ even more famous student <a href="https://plato.stanford.edu/entries/aquinas/">Thomas Aquinas</a>, the highly influential 13th-century theologian. Chapters of canons also appointed one of their members as a “dean” to supervise all the different courses of study – a term still employed by universities. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=550&fit=crop&dpr=1 754w, https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=550&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/353491/original/file-20200818-25043-a2v7e8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=550&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Christ Church College, Oxford, serves as a cathedral and a seat of learning.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/christchurch-from-merton-fields-oxford-by-richard-bankes-news-photo/589150126?adppopup=true">Photo by © Fine Art Photographic Library/CORBIS/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<h2>The birth of universities</h2>
<p>Eventually the most successful cathedral schools drew too many students to be taught inside the churches themselves. By the 13th century, cathedral schools <a href="https://yalebooks.yale.edu/book/9780300216776/medieval-christianity">gave way on one side to grammar schools, which taught Latin, and on the other to universities</a> – where students paid money to listen to the lectures of professors and received degrees based upon their displayed knowledge. The lecture halls in which these university students were taught became the forerunners of modern classroom buildings.</p>
<p>Education in early modern Europe increasingly left the pews behind as the focus expanded beyond teaching future clergy. The <a href="https://theconversation.com/on-the-reformations-500th-anniversary-remembering-martin-luthers-contribution-to-literacy-77540">Protestant Reformation</a> in the 16th century <a href="https://tifwe.org/resource/the-priesthood-of-all-believers/">rejected the notion of a priesthood</a> and demanded that everyone learn to read the Bible, preferably while they were young. </p>
<p>To enable this, schools dedicated to teaching boys and girls who would not enter the clergy were established, increasingly in buildings distinct from places of worship.</p>
<p>Because Protestants made the <a href="https://rlp.hds.harvard.edu/religions/christianity/protestant-movement">church a department of the state</a>, such schools were maintained by the country’s ruler but staffed by the church. Soon Catholics followed a similar practice of building church schools for teaching boys and girls not destined for a religious vocation. The Jesuit religious order, <a href="https://www.history.com/this-day-in-history/jesuit-order-established">founded in the 16th century</a>, dedicated itself to education and pioneered the building of residential campuses for their schools that were distinct and autonomous from local churches. </p>
<h2>Toward public schools</h2>
<p>During the <a href="https://plato.stanford.edu/entries/enlightenment/">Enlightenment era</a> of the 18th century, governments went further and established new kinds of secular or nonreligious schools. These taught <a href="https://www.britannica.com/topic/education/The-new-scientism-and-rationalism">technical and scientific subjects</a>, such as engineering and navigation or trained military officers in the technologies of war.</p>
<p>But it was the French Revolution that sped up the movement toward secular schooling as the cultural norm. Revolutionaries in France and other European states argued that the nation deserved the loyalties previously claimed by the churches. As such, <a href="https://www.historytoday.com/archive/french-revolution-and-catholic-church">churches should be shut down</a> to stop patriots from being distracted from a greater loyalty to the nation.</p>
<p>Revolutionaries failed in their efforts to deprive church schools of their status, however. Later nationalists, in reflecting upon why revolutionaries had failed, concluded that the education offered in church schools, rich in centuries of practice, was <a href="https://www.persee.fr/doc/hedu_0221-6280_1986_num_29_1_1381">simply too strong for secular schooling to challenge</a>.</p>
<p>So they pushed for redirection of state subsidies away from church schools to secular education. By the end of the 19th century, such initiatives had resulted in the secular public school systems in operation today.</p>
<h2>Church and state</h2>
<p>Church schools did not disappear, however. In Western societies, some parochial schools and private faith-based schools continued to flourish. And there is even precedent for schools using churches in times of crisis, such as to <a href="https://spartacus-educational.com/2WWeducationC.htm">accommodate children evacuated from major cities</a> in the U.K. during World War II.</p>
<p>Meanwhile, outside of Western societies, church schools became a major tool that Christian missionaries used to evangelize indigenous peoples. European colonial governments came to <a href="https://www.nytimes.com/2013/12/28/us/mission-schools-ambiguous-legacy-in-south-africa.html">subsidize mission schools</a> as cheap alternatives to building state school systems. In many African and Asian states today, church schools subsidized by foreign missions still educate <a href="https://www.economist.com/middle-east-and-africa/2019/02/21/the-geography-of-education-in-africa">significant numbers of students</a>.</p>
<p>The constitutions of most modern states maintain a <a href="https://www.mtsu.edu/first-amendment/article/885/establishment-clause-separation-of-church-and-state">strict separation between church and state</a>. And there are rules in place in countries with secular school systems that <a href="http://1.droppdf.com/files/pdATq/encyclopedia-of-american-constitution.pdf">protect the primacy of secular schooling</a> over all other types of schooling.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>Courts have also moved to <a href="https://www.ed.gov/news/press-releases/us-department-education-takes-actions-address-religious-discrimination">protect the rights of students with minority religious backgrounds</a> from persecution no matter what schools they attend.</p>
<p>Education in the West has been progressively outgrowing the church environment for centuries, yet education in religious settings continues to <a href="https://www.worldcat.org/title/encyclopedia-of-religion/oclc/56057973">lead students back toward faith</a>.</p>
<p>Whatever the impetus for using religious space for secular education, awareness of this capacity of religious space will likely remain a concern for promoters of the separation of church and state – even in these unprecedented times of pandemic.</p><img src="https://counter.theconversation.com/content/143793/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Barnes does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The history of education in the West is closely associated with Christian religious spaces – from the first cathedral schools to the use of churches to teach children in WWII.
Andrew Barnes, Professor of History and Religious Studies, Arizona State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/127000
2019-11-19T17:04:49Z
2019-11-19T17:04:49Z
Old religious tensions resurge in Bolivia after ouster of longtime indigenous president
<figure><img src="https://images.theconversation.com/files/302485/original/file-20191119-111697-1qxs8f1.jpg?ixlib=rb-1.1.0&rect=25%2C12%2C4264%2C2843&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of former Bolivian president Evo Morales rally with indigenous flags outside the city of Cochabamba, Bolivia, Nov. 18, 2019.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Bolivia-Protests/b6e54609714043fdb19cf2f3b991f2bb/10/0">AP Photo/Juan Karita</a></span></figcaption></figure><p>Days after the powerful Bolivian leader Evo Morales was forced to resign as president after <a href="https://www.as-coa.org/articles/poll-tracker-bolivias-2019-presidential-race">allegations of election fraud</a>, Bolivia’s new interim president made her <a href="https://www.nytimes.com/2019/11/12/world/americas/evo-morales-mexico-bolivia.html">first public appearance</a>. </p>
<p>Climbing to the balcony of the Presidential Palace in La Paz, Jeanine Áñez – formerly a senator representing Bolivia’s weak political opposition – grabbed a Bible. </p>
<p>“This Bible is very important to us. Our strength is God,” <a href="https://twitter.com/LaRazon_Bolivia/status/1194405431625560065">said the 52-year-old politician from the lowlands province of Beni</a>, holding the modern, pink-covered book up for the cameras. “Power is God.”</p>
<p>Invoking a Christian god as the source of political power, while commonplace in many countries, is a radical departure in Bolivia after Morales’ 14-year tenure. </p>
<p>Morales, a native Bolivian of Aymara indigenous descent, was the South American country’s first indigenous leader since independence from Spanish colonial rule in 1825. Indigenous people and symbols – like the <a href="https://chiletoday.cl/site/the-wiphala-what-does-this-indigenous-flag-mean/">multicolored Wiphala flag</a> that represents the many Andean indigenous groups, and the Andean cross, or <a href="https://www.prensaindigena.org/web/index.php?option=com_content&view=article&id=25254:peru-wayra-katari-y-la-nueva-historia-andina&catid=86&Itemid=435">chakana</a> – filled the halls of power in Bolivia during his three terms.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&rect=0%2C17%2C6000%2C3844&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/301814/original/file-20191114-26222-yiaieu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Bolivia’s new interim President, Jeanine Añez, has ties to conservative Christian groups, Nov. 13, 2019.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Bolivia-Protests/e63c10cabadc43eb8c24c1332f135730/14/0">AP Photo/Juan Karita</a></span>
</figcaption>
</figure>
<h2>Indigenous religiosity</h2>
<p>Bolivia, a mountainous country north of Argentina, is 41% <a href="https://www.iwgia.org/en/bolivia">indigenous</a>, according to the 2012 census. Most of the rest of Bolivia’s 11 million people consider themselves to be mixed race, though analysts say that self-reported census data <a href="http://www.cejis.org/bolivia-censo-2012-algunas-claves-para-entender-la-variable-indigena/">tends to undercount the indigenous population</a>. </p>
<p>Religion does not map neatly onto ethnic divisions in Bolivia. Only around 4% of Bolivians claim to practice indigenous religions. The majority – about 75% – are Catholic, and 18% belong to <a href="http://www.digitaljournal.com/news/world/stand-in-president-brings-back-bible-to-bolivian-politics/article/561763">evangelical or other Protestant denominations</a>.</p>
<p>However, <a href="https://asu.academia.edu/MatthewPeterCasey">as my ongoing research shows</a>, religion, ethnicity and culture are tightly woven together in the Andes region. In Bolivia, as <a href="https://theconversation.com/day-of-the-dead-from-aztec-goddess-worship-to-modern-mexican-celebration-124962">elsewhere in Latin America</a>, indigenous people may belong to Christian churches and also observe native religious practices. </p>
<p>Since independence, Bolivian political leaders have promoted the country’s Hispanic and Catholic heritage, not in addition to its indigenous history but to the exclusion of it. In the 20th century, indigenous people who <a href="https://www.bbc.com/news/world-latin-america-18727510">revolted against their economic and social marginalization</a> were brutally repressed.</p>
<p>Throughout the Cold War, <a href="https://muse.jhu.edu/book/14026">Bolivian Fascist party</a> members pushed for a Catholic republic modeled on Francisco Franco’s Spain. Generations of Catholic school students were taught <a href="https://www.worldcat.org/title/fascismo-en-bolivia-tactica-y-estrategia-revolucionarias/oclc/14370576">Christian nationalism from their Spanish Jesuit teachers</a>. </p>
<p>Morales, a former coca farmer, recognized indigeneity as the heart of Bolivian nationhood. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/302480/original/file-20191119-111640-c1v6ml.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Evo Morales (center) was Bolivia’s first indigenous president.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Peru-Americas-Summit/8a54f2daee0248929e1d7709c9783efe/20/0">AP Photo/Martin Mejia</a></span>
</figcaption>
</figure>
<p>Under Morales’ leadership, Bolivia’s name was changed to the Plurinational State of Bolivia in 2009, and the law now <a href="https://www.opinion.com.bo/articulo/pais/las-36-naciones-de-bolivia/20130806020300444625.html">recognizes 36 indigenous languages and ethnicities</a>. Morales also protected the right of indigenous communities to practice their religion. August became the Month of Pachamama, the Andean mother earth – <a href="https://www.nytimes.com/2008/08/21/world/americas/21witch.html">30 days of ancestral celebrations</a> kicked off by the ritual sacrifice of llamas and other animals on the <a href="https://www.youtube.com/watch?v=KyhEon3LgXE">banks of Lake Titicaca</a>.</p>
<p>Morales also built a new government building designed to acknowledge the country’s indigenous heritage. The 29-story <a href="https://www.dw.com/es/evo-morales-inaugura-monumental-casa-grande-del-pueblo-en-la-paz/a-45030140">Casa Grande del Pueblo</a> – “Big House of the People” – blends hyper modern design with indigenous artistic flourishes. The <a href="https://www.bbc.com/mundo/noticias-america-latina-45229290">interior decor</a> is inspired by the ceremonial ruins of the pre-Inca civilization of Tiahuanaco, located 40 miles east of La Paz.</p>
<h2>Distancing Bolivia from Catholicism</h2>
<p>Morales, who has taken asylum in Mexico since resigning as president, also worked to separate church from state in Bolivia. Bolivia’s new <a href="https://www.lexivox.org/norms/BO-CPE-20090207.html">constitution, written in 2009</a>, formally ended the Catholic Church’s designation as the protected religion of the state.</p>
<p>Morales is <a href="https://www.eluniversal.com.mx/mundo/tras-salida-de-evo-morales-la-biblia-y-el-poder-politico-cristiano-irrumpen-en-bolivia">Catholic</a>. But he is openly critical of the Catholic Church, which supported <a href="https://quod.lib.umich.edu/cgi/t/text/text-idx?c=acls;iel=2;view=toc;idno=heb03631.0001.001">the Spanish colonization of Latin America</a> in the 16th century and, throughout the 20th century, aided <a href="https://www.dukeupress.edu/transatlantic-fascism">Fascist party organizing</a>. </p>
<p>In 2015, he famously gave Pope Francis a <a href="https://www.cnn.com/2015/07/10/americas/pope-crucifix/index.html">hammer and sickle crucifix</a> designed by the Bolivian priest Luis Espinal before his assassination in 1980 – a symbol of Liberation Theology, a <a href="https://www.alainet.org/es/active/66203">progressive Latin American strand of Catholicism</a> that challenged dictatorships and championed the cause of the poor during the 1970s and 1980s.</p>
<p>Morales’ secular agenda was met with criticism from conservative Christian groups. Some viewed the reforms as fomenting “<a href="https://www.actuall.com/laicismo/evo-morales-pretende-meter-la-carcel-obispos-curas-predicar-evangelio/">paganism</a>.” Others said he promoted <a href="https://www.youtube.com/watch?v=aI0x5b8nOcc">atheistic socialism</a>.</p>
<h2>A Christian nationalist revival</h2>
<p>The interim administration in Bolivia has ties to the <a href="https://www.pagina12.com.ar/231205-satanas-fuera-de-bolivia-el-ritual-de-camacho-y-sus-seguidor">conservative Christian groups</a> that were highly critical of Morales throughout his administration.</p>
<p>As senator, interim President Áñez made <a href="https://www.laprensagrafica.com/internacional/Estos-son-los-agresivos-tuits-contra-originarios-e-indigenas-que-borro-Jeanine-Anez-la-presidenta-de-Bolivia-20191116-0518.html">openly anti-indigenous statements</a>. In a 2013 tweet, now deleted, she referred to native Aymara celebrating their new year with ancestral rituals as “satanic.”</p>
<p>And just <a href="https://factual.afp.com/estos-son-los-agresivos-tuits-contra-originarios-e-indigenas-que-borro-la-presidenta-interina-de">five days before her innaugeration</a>, Áñez mocked a group of indigenous Quechua men on Twitter because they were dressed in ritual vestments with modern shoes and blue jeans, writing, “Original Peoples???”</p>
<p>Her rise to power has reignited some of the anti-indigenous sentiment that was so dominant in Bolivia before Morales’ administration. Since Morales’ ouster, there are reports of Wiphalas flags being torn down and burned. Police officers and military members were <a href="https://magnet.xataka.com/en-diez-minutos/que-hace-ejercito-cortando-banderas-conflicto-etnia-clase-religion-crisis-bolivia">filmed</a> cutting the indigenous flag from their uniforms.</p>
<p>“Bolivia for Christ, Pachamama will never again enter this palace,” said the protest leader Luis Fernando Camacho, an Áñez ally, <a href="https://www.telesurtv.net/bloggers/Bolivia-golpe-de-Estado-y-la-irresuelta-guerra-entre-la-Biblia-y-la-Wiphala-20191113-0001.html">kneeling before the Bible on the Bolivian flag</a> at the government palace on Nov. 10. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/302478/original/file-20191119-111630-izh2ns.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Security forces block supporters of former President Evo Morales outside Cochabamba, Bolivia, Nov. 18, 2019.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/APTOPIX-Bolivia-Protests/f056effea372414d9e630e6b402a6e77/7/0">AP Photo/Juan Karita</a></span>
</figcaption>
</figure>
<h2>Indigenous Bolivians fearful</h2>
<p>Indigenous Bolivians are concerned about the direction their country is headed under Áñez, though she may only be in power for a few months until new elections are called.</p>
<p>In the days since Morales left office, masses of Morales supporters have marched in from the countryside to convene in Bolivian cities, where they’re <a href="https://twitter.com/Marco_Teruggi/status/1196514476784263168">calling for the end to the interim government</a>. </p>
<p>Many say they fear repression from the military under the interim government. They worry that the political violence that has gripped Bolivia since its Oct. 20 election will turn into a racialized, religious violence targeting indigenous people. </p>
<p>“All of us who have Indian-looking faces are signaled as part of Morales’ party, especially indigenous women,” the feminist activist Adriana Guzmán <a href="https://www.telesurtv.net/news/caracter-racista-golpe-estado-bolivia-comunidad-indigena-20191113-0035.html">said to the news outlet Telesur news after Morales’ removal</a>.</p>
<p>With dozens dead and more than 700 injured in <a href="https://www.pagina12.com.ar/231398-carta-blanca-para-la-represion-y-la-impunidad-en-bolivia">military opperations ordered by Áñez</a> “to re-establish order,” the political situation <a href="https://www.msn.com/es-us/noticias/mundo/la-cidh-denuncia-que-hay-al-menos-23-muertos-y-715-heridos-desde-el-inicio-de-la-crisis-en-bolivia/ar-BBWSGBX">remains volatile</a>. </p>
<p>[ <em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/127000/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew Casey-Pariseault does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Indigenous people, symbols and religious practices filled the halls of power in Bolivia during Evo Morales’ 14-year tenure. Now a new conservative Christian leader seems to be erasing that legacy.
Matthew Casey-Pariseault, Clinical Assistant Professor of History, Arizona State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/119718
2019-09-24T11:28:27Z
2019-09-24T11:28:27Z
Christianity at the Supreme Court: From majority power to minority rights
<figure><img src="https://images.theconversation.com/files/293448/original/file-20190921-135118-gq6yel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court ruled that baker Jack Phillips, owner of Masterpiece Cakeshop, could refuse to make a wedding cake for a same-sex couple because of his religious beliefs.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Wedding-Cake-Case/2b1383a5edfb46c0a2babbeb49f816df/45/0">AP/David Zalubowski)</a></span></figcaption></figure><p>A movement for religious rights is transforming the place of religion in American public life.</p>
<p>From the 1960s until very recently, liberals successfully argued at the Supreme Court that the tyranny of the majority cannot define the lives and experiences of secular citizens. </p>
<p>For decades, the court regularly ruled that laws imposed by local majorities enforcing school prayer or religious displays on government property violated the <a href="https://www.law.cornell.edu/wex/establishment_clause">Establishment Clause of the First Amendment</a>, which has been <a href="https://constitutioncenter.org/ic-2019/interpretation/amendment-i/interps/264#the-establishment-clause-a-check-on-religious-tyranny">interpreted to mean the government is prohibited from endorsing religion</a> or favoring one religion over another.</p>
<p>Those decisions meant that the rights of the non-Christian minority <a href="https://theconversation.com/the-messy-reality-of-religious-liberty-in-america-85963">defined the public place of religion in the U.S.</a> </p>
<p>But in the last decade, the reversal of power between religious and secular sides of American culture created a new self-perception among Christians as a distinct minority group. More importantly for legal proceedings, this led to a new strategy: They argue that they are now the minority group whose rights demand protection under the Constitution.</p>
<h2>Rise of the Christian minority</h2>
<p>Recent Supreme Court rulings demonstrate that the justices tend to agree. </p>
<p>Three major religion cases in <a href="https://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/">2017</a>, <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/">2018</a> and <a href="https://www.scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association/">2019</a> pitted a religious claim against a secular one – a <a href="https://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/">church against the state government</a>, a <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/">Christian business against a state agency</a> and <a href="https://www.scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association/">an atheist organization against a veterans’ group</a>.</p>
<p>In each case, the secular claim won in the lower courts, which grounded their decisions in the understanding of the First Amendment the high court had developed beginning in the 1960s.</p>
<p>In each case, the Supreme Court reversed the lower courts and ruled in favor of the religious claim. All three cases feature the same split of justices: 7-2 with liberal Justices Stephen Breyer and Elena Kagan joining five conservatives. The only dissenters were Justices Ruth Bader Ginsburg and Sonia Sotomayor.</p>
<h2>State money for religious groups</h2>
<p>In <a href="https://www.oyez.org/cases/2016/15-577">the first case</a>, the state of Missouri offered playground resurfacing to daycare centers that serve impoverished communities. A center run by Trinity Lutheran Church ranked fifth out of 44 applicants based on the state’s objective criteria.</p>
<p>But the church’s daycare was denied state assistance solely because it was affiliated with a religious institution.</p>
<p>Ginsburg and Sotomayor <a href="https://supreme.justia.com/cases/federal/us/582/15-577/#tab-opinion-3752808">agreed with that decision</a>. In their view, Founding Father <a href="http://www.loc.gov/loc/lcib/9806/danbury.html">Thomas Jefferson’s “wall of separation between church and state”</a> means that the government cannot intermingle with religious organizations or give the appearance of endorsing religion. </p>
<p>As Justice Sotomayor writes in her <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf">dissent</a>, we should avoid “the dangers that result when the two become entwined… by drawing fairly clear lines of separation between church and state.”</p>
<p>The two justices support the <a href="https://www.oyez.org/cases/1970/89">court’s 1971 “Lemon Test</a>,” which says that “excessive government entanglement” with religion is a violation of the Constitution. If this standard is followed, the “establishment of religion” includes almost any government involvement with a religious group, meaning all government programs must remain exclusively secular. </p>
<p>But the majority on the <a href="https://www.oyez.org/cases/2016/15-577">current court</a> believes that “the wall of separation” was only Jefferson’s view, not the consensus of the Founders codified in the <a href="https://constitutioncenter.org/interactive-constitution/amendments/amendment-i">text of the Constitution</a>, which uses very different language.</p>
<p>By itself, the Establishment Clause’s meaning appears clear: No government involvement with religion. But a second provision in the First Amendment also addresses religion, the <a href="https://www.law.cornell.edu/wex/free_exercise_clause">Free Exercise Clause</a>, which protects religious practice. </p>
<p>Together, these clauses seem to endorse a balance: government should neither enforce nor inhibit religion. This implies neutrality rather than separation. So the government is not prohibited from touching religion, but only from forcing it on citizens.</p>
<p>The court majority’s view in the Missouri case is that to treat a church daycare differently from a secular one is to discriminate unconstitutionally. </p>
<p>The liberal Justice Stephen Breyer joined the majority opinion. As he phrased it in a <a href="https://supreme.justia.com/cases/federal/us/588/17-1717/">2019 opinion</a>, we must consider “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”</p>
<h2>Gay rights and religious rights</h2>
<p>The second case began when a gay couple planning a wedding asked for a custom cake from Masterpiece Cakeshop in Lakewood, Colorado in 2012. The owner refused their request. In his view it would mean celebrating a ceremony that violated his deeply held religious convictions. </p>
<p>The Colorado Civil Rights Commission fined the baker for violating the state’s anti-discrimination laws. <a href="https://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/">The Supreme Court reversed the decision</a>, saying the state of Colorado demonstrated “clear and impermissible hostility” toward the baker and his religious beliefs. </p>
<p>Many commentators saw this dispute as a <a href="https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/">gay rights case</a>. But it is more accurately a religious rights case. The religious side brought the suit, and that side won in a way that expanded religious rights.</p>
<p>“Hostility” is the key word in the Masterpiece Cakeshop <a href="https://www.oyez.org/cases/2017/16-111">ruling</a>. Justice Anthony Kennedy wrote that the state government’s “hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.” </p>
<h2>Religious monuments on public land</h2>
<p>The <a href="https://www.scotusblog.com/case-files/cases/the-american-legion-v-american-humanist-association">American Legion v. American Humanist case</a> was an old-fashioned religious dispute about a giant cross on public property. </p>
<p>Does the imposing Bladensburg Peace Cross, set in a highway median on the outskirts of Washington, D.C., violate the First Amendment? </p>
<p><a href="https://americanhumanist.org/">The American Humanist Association</a> – a secularism-promoting nonprofit whose motto is “Good Without a God” – brought suit asking that the cross be demolished or moved from public land, where its members would not have to see it while driving on the highway.</p>
<p>The <a href="https://www.oyez.org/cases/2018/17-1717">Supreme Court said no</a>. Like Kennedy in Masterpiece Cakeshop, Justice Samuel Alito in the Peace Cross case argued that government hostility toward religion was impermissible: “a government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/293449/original/file-20190921-135084-yypoyx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court decisions in the last decade have helped changed the power balance between religious and secular groups.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Supreme-Court-Vehicle-Searches/6fb1b4adfc834236bb20bc8082c35eb3/120/0">AP/Scott Applewhite</a></span>
</figcaption>
</figure>
<h2>Majority powers to minority rights</h2>
<p>Underneath these victories for religious citizens and institutions is a shift in legal status. Traditional Christians were long perceived to be – by themselves and by the court – the dominant majority. Now traditional Christians argue they are a persecuted minority with rights. The court tends to agree.</p>
<p>Around 2010 the Protestant majority dominant throughout American history up to that point <a href="https://www.pbs.org/newshour/nation/white-christians-now-minority-u-s-population-survey-says">dropped into the minority</a>. <a href="https://www.pewforum.org/religious-landscape-study/attendance-at-religious-services/">Active churchgoers</a> now represent only a third of Americans. </p>
<p>Conversely, Americans with no religious affiliation – the “nones” – have risen dramatically. They are now approximately a quarter of the population, up from around 15% only 10 years ago. <a href="https://www.pewresearch.org/fact-tank/2015/05/13/a-closer-look-at-americas-rapidly-growing-religious-nones/">About 35%</a> of millennials and 17% of baby boomers are now nones.</p>
<p>Along with these changes has come a <a href="https://stream.org/committed-christians-minority-your-kids-need-know/">shift in perceptions</a> of who is discriminated against. </p>
<p>According to a recent <a href="https://www.people-press.org/2019/04/15/sharp-rise-in-the-share-of-americans-saying-jews-face-discrimination/">Pew survey</a>, between 2016 and 2019, perceptions of discrimination against blacks, Hispanics, women and especially Jews have gone up. But so have perceptions of discrimination against Christians. </p>
<p>Among Republicans, the proportion who perceive of “a lot” of discrimination against Evangelical Christians has gone from 21% in 2016 to 30% in 2019. </p>
<p>In constitutional rulings, rights often protect minorities against majorities. Declining numbers can mean less power but rising protections.</p>
<p>A case accepted for the Supreme Court’s 2019-2020 term, <a href="https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/">Espinoza v. Montana,</a> concerns whether state-funded student aid programs <a href="https://www.scotusblog.com/2019/09/symposium-principles-or-improvisations-why-and-how-the-justices-should-reject-anti-religious-discrimination/#more-289193">can exclude religious schools</a>.</p>
<p>That case will test whether the court’s transformation of the place of religion in American life continues.</p><img src="https://counter.theconversation.com/content/119718/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
There’s been a reversal of power between religious and secular sides of American culture. The Supreme Court is now at the center of that shift.
Morgan Marietta, Associate Professor of Political Science, UMass Lowell
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/117087
2019-05-20T14:27:05Z
2019-05-20T14:27:05Z
A cautionary tale: The unintended consequences of Québec’s Bill 21
<figure><img src="https://images.theconversation.com/files/275033/original/file-20190516-69178-1pgs0oe.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5472%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Honouring religious freedom and behaving faithfully in public not only protect the rights of individuals but also safeguard the integrity of democratic governments. </span> <span class="attribution"><span class="source">Peter Hershey/Unsplash</span></span></figcaption></figure><p>The Coalition Avenir Québec (CAQ) government has introduced what’s known as “<a href="http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-21-42-1.html">an Act respecting the laïcité of the State</a>.” This is the latest attempt by a Québec government to enact secularism legislation. The bill will prohibit civil servants in positions of authority from wearing religious symbols at work. </p>
<p>Québec’s historical concern about religion is understandable given the overwhelming presence of the Catholic Church in the past. However, religious institutions are no longer very dominant. In a recent <a href="https://www.pewglobal.org/2019/04/22/how-people-around-the-world-view-religions-role-in-their-countries/">Pew Research Center study</a>, 64 per cent of Canadians say religion plays a less important role today that it ever has.</p>
<p>Preserving French culture is also important. It enriches not only Québec but all of Canada. </p>
<p>But Bill 21 is a cautionary tale. The proposed law may have real unintended consequences. Rather than protecting French culture and safeguarding the public against religious coercion, it may enact a new dominant and coercive state-directed civil religion.</p>
<h2>Opposition to Bill 21</h2>
<p>Bill 21 has met with widespread opposition and protest. <a href="https://policyoptions.irpp.org/magazines/april-2019/making-democratic-case-quebecs-bill-21/">Constitutional scholars and legal experts</a> argue that it violates Canada’s Charter of Rights and Freedoms, particularly the section regarding freedom of religion. Academics, teachers’ federations, the Canadian Bar Association’s Québec branch, women’s, Jewish, Christian and Muslim organizations are all opposed.</p>
<p>Bill 21 is based on <em>laïcité</em>, a French version of secularism. Laïcité is often equated with the concept of the separation of church and state. But French academic <a href="https://www.academia.edu/2304377/French_Secularism_or_La%C3%AFcit%C3%A9">Michael Troper</a> points out that freedom of religion in some countries is an inherent natural or civil right. This is how many Canadians understand it under the Charter of Rights and Freedoms. </p>
<p>In France under laïcité, public freedom to practise religion is granted to citizens by the laws of the state. Religion is strictly a private matter. As in Bill 21, these public freedoms of separation, equality, conscience and religion are delivered by a secular and neutral state.</p>
<h2>Are states truly neutral?</h2>
<p>Secular state neutrality is a questionable assumption. Who still believes that even well-intentioned states are neutral on issues of identity and religion? We only need to recall the painful reminders of <a href="https://www.thecanadianencyclopedia.ca/en/article/residential-schools">residential schools in Canada</a>, the <a href="https://www.cbc.ca/cbcdocspov/features/the-sixties-scoop-explained">Sixties Scoop</a>, <a href="https://www.thecanadianencyclopedia.ca/en/article/chinese-head-tax-in-canada">the Chinese head tax</a>, the <a href="https://www.thecanadianencyclopedia.ca/en/article/internment-of-japanese-canadians">internment of Japanese Canadians in the Second World World</a>, <a href="https://www.macleans.ca/history/canada-was-warned-of-the-incoming-holocaust-we-turned-away-900-jewish-refugees-anyway/">the snubbing of Jewish refugees in 1939</a>, and the treatment of <a href="https://www.cbc.ca/news/politics/homosexual-offences-exunge-records-1.4422546">the LGBTQ2 community</a> to mention only a few examples.</p>
<p>Politics requires governments to exercise power and comes with inevitable human conflicts. Governments don’t like competition, particularly from faith communities that may challenge them. There is always temptation by political leaders to use domination and coercion to overcome particularly religious opposition, <a href="https://www.catholicregister.org/item/21666-liberals-closing-the-book-on-charity-political-audits">as the Canada Revenue Agency did in 2010</a> when it started to use political activity audits to threaten Canadian charities.</p>
<p>Taming and privatizing religious voices is not new for political leaders. Bill 21 is another attempt to restrict the public role of religious voices. With democracy in retreat and <a href="https://www.theguardian.com/us-news/2018/jul/17/obama-criticises-strongman-politics-coded-attack-trump">strongmen politics</a> increasing globally, this may be even truer today.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/are-we-witnessing-the-death-of-liberal-democracy-117085">Are we witnessing the death of liberal democracy?</a>
</strong>
</em>
</p>
<hr>
<p>So what does it mean to behave with faith in public?</p>
<p>This is a question not just being confronted by Québec. There are angry voices across Canada more than willing to use heavy-handed laws against religious and ethnic communities. But using domination and coercion in the public arena is unacceptable regardless of whether it’s by people of faith, business leaders, economists, politicians, leaders of charitable organizations or anyone else.</p>
<h2>Religions contribute to public life</h2>
<p>Religion cannot simply be banished from public life. </p>
<p>Faith and religious communities make useful contributions to society. They provide meaning, purpose and ultimately direction for citizens and politicians facing tough decisions. They mobilize help for people in need in our communities. They motivate people to make donations, volunteer in charitable organizations and even run for political office. They can help communities celebrate and grieve in public moments of joy and tragedy. </p>
<p>Faith is, in fact, unavoidably public.</p>
<p>Religious freedom is not freedom from responsibility. Rather, behaving faithfully in public is freedom to take responsibility for the rights and well-being of others. Religious freedom safeguards this public role for people of faith.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/275034/original/file-20190516-69204-civ9br.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Faith communities can help others in ensuring no one community dominates society.</span>
<span class="attribution"><span class="source">Ben White/Unsplash</span></span>
</figcaption>
</figure>
<p>Québec might lead the way with another approach based on equality. The province has a diverse and dynamic public life; it should build on that dynamic diversity by enlisting faith communities, business, labour and civil society to together protect the public arena. </p>
<p>In a positive way, people from these sectors can scrutinize and hold each other accountable against domination and coercion from any single group. The church-state relationship today has become <a href="https://drive.google.com/drive/folders/0ByQ8-RCvYGFsfmFZbHhuLWdHWDdIaElJSG5yc2xyWmFrQU1HRnIxek9iamxDYlp5SHVUcnM">a diverse public commons</a> with many bodies, including religious ones, serving a public purpose.</p>
<p>Honouring religious freedom and behaving faithfully in public not only protects the rights of individuals but also safeguards the integrity of democratic governments. </p>
<p>In the 1940s, the renowned theologian <a href="https://www.press.uchicago.edu/ucp/books/book/chicago/C/bo12091283.html">Reinhold Niebuhr</a> reminded us that humanity’s “capacity for justice makes democracy possible; but (its) inclination to injustice makes democracy necessary.”</p><img src="https://counter.theconversation.com/content/117087/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Pfrimmer is an ordained pastor in the Evangelical Lutheran in Canada (ELCIC) and has worked with numerous ecumenical and multifaith social justice and human rights organizations.</span></em></p>
Respecting religious freedom not only protects the rights of individuals, it safeguards the integrity and accountability of democratic governments.
David Pfrimmer, Professor Emeritus for Public Ethics and Fellow at the Centre for Public Ethics, Martin Luther University College, Wilfrid Laurier University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/100575
2018-07-30T10:31:48Z
2018-07-30T10:31:48Z
Congress could declaw restrictions on politicking from the pulpit — over the objections of many churches
<figure><img src="https://images.theconversation.com/files/229668/original/file-20180727-106505-sf3yg7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Trump signed an executive order related to the Johnson Amendment in 2017.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Religion/9d90c9b46eef4e799303bbf8688e7637/1/0">AP Photo/Evan Vucci</a></span></figcaption></figure><p>During his 2016 campaign, Donald Trump promised his Evangelical supporters that he would <a href="https://www.theatlantic.com/politics/archive/2016/08/how-trump-is-trying-to-put-more-money-in-politics/493823/">eliminate the Johnson Amendment</a>, a law that has barred tax-exempt charities from weighing in on political candidates since the 1950s.</p>
<p>Trump <a href="https://www.npr.org/2018/03/22/596158332/another-effort-to-get-rid-of-the-johnson-amendment-fails">reiterated his promise</a> at the first National Prayer Breakfast of his presidency, telling the audience he would “<a href="https://theconversation.com/trumps-vow-to-destroy-johnson-amendment-could-wreak-havoc-on-charitable-world-72561">get rid of and totally destroy</a>” it. In July 2017, he claimed success, signing an <a href="https://www.whitehouse.gov/the-press-office/2017/05/04/presidential-executive-order-promoting-free-speech-and-religious-liberty">executive order</a> designed to do just that.</p>
<p>Taking credit for eliminating the Johnson Amendment turned out to be <a href="https://www.politifact.com/truth-o-meter/statements/2017/jul/18/donald-trump/trump-claims-he-got-rid-johnson-amendment-true/">premature</a> because doing so requires an act of Congress. But some Republican lawmakers are stepping up.</p>
<p>As a <a href="https://scholar.google.com/citations?user=ef2n0uEAAAAJ&hl=en&oi=ao">law professor</a> who studies how the tax law impacts churches, I believe that repealing the Johnson Amendment could alter electoral politics by making it easier for people to anonymously funnel tax-deductible donations to political candidates. And even if that doesn’t happen, its repeal could prove tremendously damaging to the very churches that Trump was apparently trying to help.</p>
<h2>The Johnson Amendment</h2>
<p>Technically, the Johnson Amendment prohibits charities from supporting or opposing candidates for office. This ban covers a <a href="https://www.law.cornell.edu/uscode/text/26/501">spectrum of actions</a>, ranging from endorsements made out loud or in writing to giving candidates money. Charities that violate this prohibition <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1596863">lose their tax exemption and may get fined</a>. </p>
<p>But charities don’t have to stay out of politics altogether. Nonprofits lobby <a href="https://www.councilofnonprofits.org/proof-it-works">all the time</a>, both to protect their own interests and to further their missions.</p>
<p>And that lobbying is not subject to a blanket prohibition. Rather, it is subject to a second restriction: The activities cannot constitute a “<a href="https://www.irs.gov/charities-non-profits/measuring-lobbying-substantial-part-test">substantial</a>” amount of a charity’s work measured in time and money.</p>
<p>Trump appears to be only care about getting rid of the Johnson Amendment, however.</p>
<p>And on July 19, the <a href="https://www.congress.gov/bill/115th-congress/house-bill/172">House of Representatives</a> showed it was ready to help him fulfill his campaign promise when it <a href="https://www.lexology.com/library/detail.aspx?g=79b0e323-f4b1-4aaa-b529-e70956b6d3f3">passed</a> an appropriations bill with a provision that would effectively declaw the Johnson Amendment.</p>
<p>Rather than repeal the measure, this provision would bar the IRS from spending any money to enforce it. Without any threat of being subjected to Johnson Amendment enforcement, churches would become effectively exempt from it.</p>
<p>But first the <a href="https://www.politico.com/newsletters/morning-tax/2018/07/25/how-do-you-get-a-floor-vote-296963">Senate would have to approve the measure</a>.</p>
<h2>Religious freedom</h2>
<p>In case you’re wondering, for tax purposes a “church” is an organization that has several of the attributes on a <a href="https://www.irs.gov/charities-non-profits/churches-religious-organizations/churches-defined">list developed by courts and the IRS</a>, even if people wouldn’t commonly think of it as a church. </p>
<p>Most Christian, Muslim, Jewish, Sikh, Buddhist and Hindu houses of worship conform to this official definition. So does the <a href="https://www.facebook.com/Cannaterian/?hc_ref=ARSW5rhoZ-gQCNgffyNOjqP3VlcxTgEV9OHiIY7Z1yGzf4hXcLKZi07X5AwwqgCr6Eg">First Church of Cannabis</a>.</p>
<p>Johnson Amendment opponents argue that it infringes on the religious and speech rights of pastors. Clergy, they say, have a religious duty to oppose political candidates they find morally unacceptable and to back candidates who will further their churches’ missions. The Johnson Amendment prevents them from doing that.</p>
<p>But not all religious institutions would welcome this tax policy change. </p>
<p>The movement to revoke the Johnson Amendment has been spearheaded by the <a href="http://www.adflegal.org/free-speech-fairness-act">Alliance Defending Freedom</a>, an organization formed to protect and defend the legal rights of Christians and Christian churches. A vocal group of <a href="https://www.npr.org/2017/02/03/513187940/the-johnson-amendment-in-five-questions-and-answers">conservative white Evangelicals</a> also supports this effort. </p>
<p>Since 2008, in fact, the alliance has sponsored <a href="http://www.adfmedia.org/news/prdetail/4360">Pulpit Freedom Sunday</a>, during which participating pastors preach a sermon in which they endorse or oppose a candidate for office. They then send the IRS a copy of their sermon, challenging tax authorities to revoke their exempt status.</p>
<p>Interestingly enough, not a single participating church has been punished. In fact, in the nearly 65 years that the Johnson Amendment has been part of the tax law, <a href="https://ssrn.com/abstract=2546453">I’m aware of only one church</a> that has lost its exemption as a result of violating the Johnson Amendment. Even without repeal, the Johnson Amendment is almost entirely unenforced.</p>
<p>But the lack of IRS enforcement doesn’t mean that the Johnson Amendment is ineffective, or that it has no impact on church behavior. The law is on the books, even if it is unenforced, and it probably discourages at least some pulpit politicking.</p>
<h2>Deducting dark money</h2>
<p>Should this policy change, I see two big downsides to allowing churches to endorse endorse candidates.</p>
<p>First, donations to churches <a href="https://www.irs.gov/charities-non-profits/charitable-organizations/charitable-contribution-deductions">are deductible</a> but not <a href="https://www.irs.gov/charities-non-profits/other-non-profits/nondeductible-lobbying-and-political-expenditures-1">political donations</a>. If churches could hand candidates money from donors, the government could be effectively subsidizing political gifts.</p>
<p>This would make those donations a bargain for political donors, at least those who are the <a href="https://theconversation.com/charity-and-taxes-4-questions-answered-89512">biggest earners</a>. And doing away with the Johnson Amendment for religious organizations could potentially invite widespread campaign finance laundering through churches. </p>
<p>Second, unlike other charities, churches <a href="https://www.irs.gov/charities-non-profits/annual-exempt-organization-return-who-must-file">aren’t required</a> to make financial disclosures. Thus, should political donors take advantage of the enforcement vacuum, on top of potentially getting a tax break, their donations would be anonymous.</p>
<p>Already, <a href="https://www.opensecrets.org/news/2016/11/1-4-billion-and-counting-in-spending-by-super-pacs-dark-money-groups/">hundreds of millions</a> of dollars of what’s known as “<a href="https://theconversation.com/missouris-dark-money-scandal-explained-90427">dark money</a>” is moving to campaign coffers during election years. Without the Johnson Amendment, donors who want anonymity could use churches to make dark money contributions.</p>
<p>Of course, churches would still face constraints on their ability to funnel money to political candidates even if Congress votes to repeal the Johnson Amendment. Their political activities – including donations for candidates – would still have to be an insubstantial part of their activities.</p>
<p>Any churches that become nothing more than conduits for political money would still be vulnerable to losing their tax-exempt status. As long they spend <a href="http://lawprofessors.typepad.com/nonprofit/2008/11/lds-church-prop.html">sufficient time and money on worship and other religious activities</a>, though, they would be free to use a new influx in donations to support or oppose political candidates.</p>
<h2>Religious opposition</h2>
<p>Which is why <a href="https://philanthropynewsdigest.org/news/religious-leaders-oppose-changes-to-johnson-amendment">thousands of religious leaders</a> oppose repeal.</p>
<p>Without the excuse to stay out of politics the measure gives churches, politicians could <a href="https://www.fcnl.org/updates/78-organizations-call-on-congress-to-oppose-the-repeal-of-the-johnson-amendment-1135">pressure religious groups</a> for endorsements. Large donors could demand that the church back specific candidates in exchange for monetary gifts. </p>
<p>Consider this hypothetical situation involving a pastor who does not want to endorse a particular candidate despite a donor’s demand. Perhaps she personally opposes the candidate. Perhaps she worries that injecting politics will sow discord among congregants. Perhaps she has another reason. </p>
<p>Sure, politics must be an insubstantial part of the church’s activities. But mentioning a candidate once during a 15-minute sermon, or even once during every sermon, would not be a substantial part of the church’s activities. </p>
<p>Currently, the Johnson Amendment would require her to decline a gift in exchange for her endorsement. Without it, that excuse vanishes.</p>
<p>By allowing churches to funnel deductible dark money into politics, I believe that repealing the Johnson Amendment would hurt America’s democracy. Even if that doesn’t happen, I fear that repeal could damage churches, their missions and their communities.</p><img src="https://counter.theconversation.com/content/100575/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Samuel Brunson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Deactivating the tax provision known as the Johnson Amendment could increase the flow of dark money, reducing accountability in campaign finance.
Samuel Brunson, Professor of Law, Loyola University Chicago
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/80588
2017-07-09T23:46:34Z
2017-07-09T23:46:34Z
The Supreme Court, religion and the future of school choice
<figure><img src="https://images.theconversation.com/files/177157/original/file-20170706-10491-1qzlnvg.jpg?ixlib=rb-1.1.0&rect=588%2C109%2C4472%2C3110&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court's decision in the Trinity Lutheran case is blurring the lines between church and state.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/chiangmai-thailand-march-222015-two-boys-262562096?src=V_7R_iqvQZsrSIcdYp1ZIA-1-3">aradaphotography/Shutterstock.com</a></span></figcaption></figure><p>The Supreme Court <a href="https://apnews.com/a494b90c0244404183483df6a8618a66">recently decided</a> that Trinity Lutheran Church should be eligible for a Missouri state grant covering the cost of recycled playground surfaces. Though the state originally rejected the church’s application on grounds of separation of church and state, <a href="https://www.oyez.org/cases/2016/15-577">the Supreme Court ruled</a> that this rejection was, in fact, religious discrimination.</p>
<p>The case’s impact will probably reach well beyond playgrounds.</p>
<p>As a scholar of education law, I’ve been following the Trinity Lutheran case and what it could mean for the hottest issue in education: school choice. Where in the past states have decided for themselves whether religious schools are eligible for <a href="http://www.ncsl.org/research/education/voucher-law-comparison.aspx">school vouchers</a> and <a href="https://theconversation.com/tax-credits-school-choice-and-neovouchers-what-you-need-to-know-74808">scholarship tax credits</a>, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs.</p>
<p>This would be a huge win for school choice advocates and would complete a revolution in the Supreme Court’s understanding of the law on government funding of religious institutions.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177159/original/file-20170706-10491-10ce14v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Activist group Concerned Women for America shows support for Trinity Luthern Church in front of the Supreme Court in Washington, D.C.</span>
<span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span>
</figcaption>
</figure>
<h2>Of church playgrounds and discrimination</h2>
<p>In 1995, Missouri established <a href="https://dnr.mo.gov/env/swmp/tires/tirefinassistance.htm">a program offering reimbursement grants</a> to qualifying nonprofits that installed playground surfaces made from recycled tires. Trinity Lutheran Church, which runs a preschool and daycare center, applied for a grant in 2012, but the state rejected the church’s application. Why? The <a href="http://www.moga.mo.gov/mostatutes/ConstArticles/Art01.html">Missouri Constitution</a> states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”</p>
<p>Trinity Lutheran challenged the state’s decision as a violation of <a href="https://www.law.cornell.edu/wex/free_exercise_clause">the Free Exercise Clause</a>, and in June the U.S. Supreme Court <a href="https://supreme.justia.com/cases/federal/us/582/15-577/opinion3.html">agreed</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177217/original/file-20170706-23390-q29erx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Scrap Tire Surface Material Grant was awarded to two applicants in the 2017 fiscal year.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/ssedro/384644450/in/photolist-5afdGE-aMshTP-6bUGGs-7qgcDn-6cdYdp-68FByJ-kFYcYp-6ci7wL-kFYe6z-6uUeDY-kGZtwT-6uUeFo-kFYeti-7Yn2fJ-6uUeFY-6uUeRu-6uUeZo-6uQ4w2-6uQ4r2-kFZMmq-6uQ4gv-6uUeN5-6uQ4qF-6uUeKE-6uUeYu-zZpoS-6uQ4k4-6uUeUW">ssedro</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>This result will strike many as <a href="http://www.cnn.com/2017/06/26/opinions/religious-liberty-battle-shapiro-opinion/index.html">intuitively correct</a>. A playground is a playground whether or not it’s run by a church, so the threat to separation of church and state seems slim, and the cry of religious discrimination seems plausible.</p>
<p>The case’s reasoning, however, may signal a significant shift in how the law views the separation of church and state. To understand why, we need to review some history.</p>
<h2>1784: Three pence to religious education</h2>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=742&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=742&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=742&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=933&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=933&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177225/original/file-20170706-18401-1n6qfpn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=933&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 1785, James Madison wrote his ‘Memorial and Remonstrance Against Religious Assessments,’ asserting that religion should be kept separate from government.</span>
<span class="attribution"><a class="source" href="http://www.loc.gov/pictures/item/96522271/">Library of Congress</a></span>
</figcaption>
</figure>
<p>In 1784, <a href="https://classroom.monticello.org/media-item/a-bill-establishing-a-provision-for-teachers-of-the-christian-religion/">Patrick Henry proposed a bill</a> in the Virginia legislature that would have levied a tax to support “teachers of the Christian religion” (i.e., ministers). James Madison, however, <a href="https://www.billofrightsinstitute.org/founding-documents/primary-source-documents/memorial-and-remonstrance/">successfully opposed the bill</a>.</p>
<p>On the question of funding religion with tax money, Madison asked: “Who does not see that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”</p>
<p>More than 150 years later, in <a href="https://www.oyez.org/cases/1940-1955/330us1">Everson v. Board of Education</a> (1947), this controversy played a prominent role in the Supreme Court’s interpretation of <a href="http://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion">the Establishment Clause of the First Amendment</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=749&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=749&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=749&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=941&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=941&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177151/original/file-20170706-26461-13r9rs2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=941&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Justice Hugo Black in 1937.</span>
<span class="attribution"><a class="source" href="http://www.loc.gov/pictures/resource/cph.3b00098/">Library of Congress</a></span>
</figcaption>
</figure>
<p>In applying the Establishment Clause to states for the first time, the justices in the Everson case emphasized Madison’s objections to the Virginia tax in concluding that the framers of the Constitution had intended to establish “a wall of separation between Church and State.”</p>
<p>In <a href="https://supreme.justia.com/cases/federal/us/330/1/case.html">the Everson decision</a>, Justice Hugo Black interpreted this “wall” to mean:</p>
<blockquote>
<p>“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”</p>
</blockquote>
<h2>The Supreme Court changes its tune</h2>
<p>Until the mid-1980s, the Supreme Court <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1335&context=ijgls#page=20">mostly adhered</a> to the no-funding mantra announced in the Everson case. Gradually, however, the court’s commitment to such hard-line separation waned.</p>
<p>Much of this came down to a shift in perception: The 21st century is very different from the world of the 1780s, where government was small and taxes relatively rare. Today, government is pervasive, and government money flows to a wide range of institutions. Increasingly, the Supreme Court recognized that allowing some money to flow to religious institutions via general government grant programs was <a href="http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1335&context=ijgls#page=19">quite different</a> from the Virginia tax Madison had opposed.</p>
<p>By <a href="https://www.oyez.org/cases/2001/00-1751">2002</a>, the court had settled on its current approach to the Establishment Clause – an approach <a href="http://www.pewforum.org/2009/05/14/shifting-boundaries-the-establishment-clause-and-government-funding-of-religious-schools-and-other-faith-based-organizations/">much more permissive</a> than what was laid out in the 1947 Everson case.</p>
<p>Fast-forward to 2017, and seven justices agreed that giving Trinity Lutheran Church its playground grant would not violate the federal Establishment Clause. (Justices Sonia Sotomayor and Ruth Bader Ginsburg <a href="https://supreme.justia.com/cases/federal/us/582/15-577/dissent7.html">dissented</a> on this point.)</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=580&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=580&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177179/original/file-20170706-18989-16xcvlj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=580&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ralph Reed, chairman, Faith & Freedom Coalition, pictured at an event in 2014, has spoken in favor of Trinity Lutheran Church.</span>
<span class="attribution"><span class="source">AP Photo/Molly Riley</span></span>
</figcaption>
</figure>
<h2>State bans on funding religion</h2>
<p>So, the Supreme Court now holds a more forgiving position when it comes to separation of church and state. But what about individual states?</p>
<p>Nearly every state has provisions in its constitution that address state support for religion, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause. Such a provision is exactly why students in <a href="http://caselaw.findlaw.com/vt-supreme-court/1396322.html">Vermont</a> can’t use state funds to attend religious schools. It’s also, perhaps, why some states have not yet adopted voucher policies: Voucher advocates tend to want religious schools to be eligible, but <a href="http://blogs.edweek.org/edweek/charterschoice/2017/01/why_michigan_doesnt_have_school_vouchers_and_probably_never_will.html">state constitutions often stand in the way</a>.</p>
<p>So, what happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?</p>
<p>The Supreme Court faced this question once before in <a href="https://www.oyez.org/cases/2003/02-1315">Locke v. Davey</a> (2004). The state of Washington offered “Promise Scholarships” to students meeting certain academic and income criteria, and college student Joshua Davey met those criteria. He lost the scholarship, however, when he declared a major in “pastoral ministries” because Washington understood its state constitution to ban the use of public money to support the pursuit of any degree in “devotional theology.” In other words, Washington was taking a stringent view on separation of church and state.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177165/original/file-20170706-13395-1qn3hn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Joshua Davey speaks to reporters outside the Supreme Court in Washington, D.C. in 2003.</span>
<span class="attribution"><span class="source">AP Photo/Dennis Cook</span></span>
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</figure>
<p>Davey argued that excluding ministry students from the scholarship opportunity was a kind of religious discrimination, violating his right to freely exercise his religion. </p>
<p>The Supreme Court ruled 7 to 2 against Davey. <a href="https://supreme.justia.com/cases/federal/us/540/712/opinion.html">Chief Justice William Rehnquist explained</a> that in a federal system, states should have the right to insist on greater separation of church and state than the federal Establishment Clause requires.</p>
<p>While federal law would not prevent Washington from giving Davey a scholarship, the state could also choose to uphold its stricter separation – without violating the Free Exercise Clause. In other words, just because Washington could fund Davey didn’t mean that it had to.</p>
<h2>Does separationism equal discrimination?</h2>
<p>Since 2004, lower courts have generally interpreted Locke v. Davey to say that states <a href="http://caselaw.findlaw.com/us-1st-circuit/1459164.html">may choose</a> to exclude religious applicants from public funding programs. Trinity Lutheran will change that.</p>
<p>At least six justices agreed that Missouri’s exclusion of the church from its grant program was religious discrimination, pure and simple – and that this trumps the state’s desire to enforce a strict separation of church and state. <a href="https://supreme.justia.com/cases/federal/us/582/15-577/opinion3.html">Justice Roberts</a> determined that the judgment in Locke did not apply here, as the discrimination alleged in the two cases was different. Justices <a href="https://supreme.justia.com/cases/federal/us/582/15-577/concur4.html">Thomas</a> and <a href="https://supreme.justia.com/cases/federal/us/582/15-577/concur5.html">Gorsuch</a> suggested that there was improper religious discrimination in both cases. </p>
<p>Despite their different views of Locke, these justices agreed that the court was required to analyze Missouri’s grant denial under “<a href="https://www.law.cornell.edu/wex/strict_scrutiny">strict scrutiny</a>.” This is the same level of review the court would give to, for instance, an express ban on Muslims entering the country.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177166/original/file-20170706-26461-1j76yqi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In his opinion in the case, Justice Roberts stressed the differences between Locke v. Davey and Trinity Lutheran Church v. Comer.</span>
<span class="attribution"><span class="source">AP Photo/Stephan Savoia</span></span>
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<p>This is remarkable. Though Joshua Davey had asked the court to review Washington’s scholarship policy under strict scrutiny, the court declined to do so. In that decision, the justices determined that separation of church and state and religious discrimination were horses of a different color. The Trinity Lutheran decision suggests that, at least in the context of general funding programs, the court will now view separation of church and state – a position the court once wholeheartedly embraced – as a kind of religious discrimination.</p>
<h2>What happens next?</h2>
<p>Standing against this reading of the Trinity Lutheran decision is… well, a footnote. Footnote 3 in Justice Roberts’ opinion reads:</p>
<blockquote>
<p>“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”</p>
</blockquote>
<p>The footnote suggests that the implications of the decision are narrow and shouldn’t be applied to, say, school vouchers. But it’s hard to reconcile the footnote with the seemingly widespread ramifications of the opinion’s text.</p>
<p>Indeed, the day after deciding the Trinity Lutheran case, the Supreme Court <a href="https://www.supremecourt.gov/orders/courtorders/062717zr_6537.pdf">vacated</a> four lower court decisions in <a href="https://www.courts.state.co.us/userfiles/file/Court...Court/Opinions/.../13SC233.pdf">Colorado</a> and <a href="http://www.nmcompcomm.us/nmcases/nmsc/slips/SC34,974.pdf">New Mexico</a> that allowed the exclusion of religious schools from general aid programs. The state courts had based their rulings on separationist language in their state constitutions, but the Supreme Court asked the states to reexamine those decisions in light of Trinity Lutheran. Given the Supreme Court’s treatment of these cases, Footnote 3 may not be much of a limitation after all.</p>
<p>The Colorado and New Mexico courts will have the first shot at deciding what Trinity Lutheran means for school choice. In my view, though, the Trinity Lutheran case signals that the Supreme Court will now generally treat separationist exclusions of religious institutions from government funding as religious discrimination.</p>
<p>If that’s right, we’ll soon have completely flipped the law on government funding of religious schools. Where it had once seemed fairly clear that government money could not be used to support religious instruction at all, it may be only a matter of time before the Supreme Court requires voucher programs to treat religious schools the same as their secular peers.</p><img src="https://counter.theconversation.com/content/80588/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Taylor does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The Trinity Lutheran case signals the Supreme Court’s willingness to interpret separation of church and state as religious discrimination. What will this mean for the future of vouchers and school choice?
John E. Taylor, Professor of Law, West Virginia University
Licensed as Creative Commons – attribution, no derivatives.