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Two Constitutionally Correct Decisions

Kris Schnee

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof...

And there the trouble began. We’ve just seen two controversial new rulings in our nation’s courts as judges attempt simultaneously to strengthen and weaken ties between the federal government and religion. Surprisingly, both rulings are constitutionally correct, interpreting the First Amendment to mean that government may not play favorites or take an official position on our many religions.

The liberal Ninth Circuit Court of Appeals issued a ruling on disestablishmentarianism, finding it unconstitutional to lead public schoolchildren in the Pledge of Allegiance. The pitfall isn’t in the original Pledge, but in the words “under God” inserted by a Red-scared Congress in 1954 specifically to link patriotism with belief in a single perfect God. The present Congress immediately responded with a spineless resolution that, because past Presidents have invoked the Christian God with a generic label, establishing “under God” and pressuring children into worship doesn’t count as establishing religion.

This ruling will fall even though it supports a straightforward reading of the Constitution, because it defies a long tradition of hypocrisy. Because most Americans are Christians, they encourage government to endorse Christianity as much as possible -- at least invoking a single supreme God as the correct belief. Would Christians consider it fair and neutral for the Pledge to read “one nation under many gods,” or is only monotheism acceptable? Unfortunately this bias can’t be dug out completely -- “God” is even in the Declaration of Independence -- but technically it doesn’t belong at all. It is simply not the government’s business to take any position on the existence, nature or worship of any God, gods, spirits, etc., and to favor one term over another is to insult every atheist, Hindu, Buddhist, Wiccan, and Zoroastrian out there. We can’t eliminate all of our predecessors’ mistakes in making the government endorse monotheism, but we can avoid repeating those mistakes. The Pledge is fixable: the pre-1954 version was neutral, fair, and legal, and it can be restored.

The Pledge is not the worst example of church-state alliance in this country. It would have made more sense to attack the use of specifically Christian equipment in state ceremonies; for instance, the posting of the Ten Commandments in schools and courthouses and the swearing of oaths on Christian Bibles. While one can defend the Pledge’s “God” as a generic deity, these other symbols pay homage directly to Yahweh of the Divine Right of Kings. Our athletes endorse Nike sneakers by wearing them in public, and our government endorses Christianity above all other religions in the same way. Some states go so far as to ignore the First Amendment altogether, for instance in South Carolina’s Constitution: “No person who denies the existence of a Supreme Being shall hold any office under this Constitution.” (Article XVII, Section 6) Practices like our court oaths are blatantly unconstitutional, and will be “first against the wall when the revolution comes.” But that revolution in legal maturity is just wishful thinking for now, since Christian voters won’t feel threatened until they have to swear oaths on a copy of Dianetics.

School vouchers are a very different story, a religious program which is constitutionally safe and wisely so ruled by the Supreme Court. In this case what the government is doing -- allowing parents to choose where to send their kids to school -- is a religiously neutral action. Vouchers can be used at accredited schools with or without any religious affiliation, so that government takes no stance on who’s right and looks only at whether each school can meet curriculum standards. In theory, vouchers may even promote religious diversity by increasing the size of the private education market, leading to the growth of schools serving groups that don’t now have them.

The schools getting voucher money will face serious temptation to abuse their position, though, and may decide after all that the program is more trouble than it’s worth. The voucher program puts religious groups with a history of mutual hatred -- Jewish, Christian and Muslim, Catholic and Protestant etc. -- into direct financial competition. Economics will force religious groups to squabble for dollars, raising tension between them. By taking state money, religious schools will also leash themselves to greater state control of their curricula. This control means more than having to teach science in fundamentalist classrooms; it means taxpayers objecting to the social agendas of each school and possibly forcing them to water down their religious instruction to keep their funding. Not all religious schools will want to enter the crusade for dollars and accept the attached strings. Vouchers will bring increased competition to education and, while the program’s drawbacks will be difficult to avoid, competition will mean more freedom for parents and better education for children.

At the same time we have a court ruling rejecting religious favoritism in the national Pledge, and another supporting government-funded religious education. These rulings go in opposite directions but are both constitutionally correct, protecting the neutrality of government from theological issues best left to individuals. Unfortunately the Pledge ruling will probably be struck down, preserving the wedge of bias toward monotheism in our laws, but the “under God” is a fairly minor problem and we will survive it. Vouchers will bring new ideas to our school system, possibly even good ideas, and improve educational freedom without hurting neutrality. In judging religion-related laws and rulings, we must try to stay neutral ourselves and not let an atmosphere of enforced patriotism -- like that in the 1950s when “under God” surfaced -- force any theological decisions on Americans. We can handle these issues; in the Constitution we trust.