Should government fund Christian and other religious organizations? If so, what kind of strings should it attach? Should the strings be long? Short? Should there even be any strings? These questions do not lend themselves to easy answers, as American history shows.
In the colonial period government funding for Christian organizations was an established practice. A number of colonies even designated one religion to receive tax dollars: It was the Anglican Church in much of the South and the Congregational Church in much of New England. Other colonies required citizens to choose their own protestant church beneficiary. Delaware, New Jersey, Pennsylvania, and Rhode Island were the only colonies not to require their citizens to fund religion.
The relationship between the state and religion changed after the Revolution. The framers of the new United States Constitution included the following words in the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first part is the Establishment Clause, the second part the Free Exercise Clause.
Through the ages Americans have interpreted the Establishment Clause differently. There are the separationists who are skeptical about government funding Christian and other religious organizations because they say it implies endorsement of and support for religion. Our government must not favor one religion over another, or religion over non-religion, or non-religion over religion, they say.
Then you have the accomadationists who are open to government funding Christian and other religious organizations. They say the Clause permits it – it only bans government from favoring any one religion or certain religions over others — and it solves secular problems.
These are the battle lines. And the courts have been the referees.
The Supreme Court and the Establishment Clause
For more than 150 years after the Constitution was drafted, the Supreme Court dealt with few cases that implicated government funding for religion. The turning point came in 1947 when the Court dealt with a New Jersey statute. The heart of the issue was whether the Constitution permits the government to reimburse parents to give them the means to bus their children to parochial school.
Yes, the Court said, there is nothing unconstitutional about government enabling children of all religions to get to school. This case involves indirect aid to religion with a secular purpose, and that is permissible.
But the most significant part of this decision was the Court’s holding that the Establishment Clause applies to the states via the Due Process Clause of the Fourteenth Amendment, the post Civil War amendment that bans the states from depriving its citizens of life, liberty, and property.
This made the Establishment Clause and government funding of Christian and other religious organizations a national issues for the Court to pass judgment on. In the early decades after the NJ Decision, separationists had the upper hand.
In 1971, the Court held that providing teacher salaries, textbooks, and instructional materials for sectarian subjects in nonpublic schools violates the Establishment Clause. It’s too overt, too direct.
This decision is mostly known, however, for the three-prong test the Court set up to decide this and future cases involving government funding for Christian and other religious groups. To pass constitutional muster, a statute must have a secular purpose, not advance nor inhibit religion, and not foster excessive government entanglement with religion.
In 1973, the Court dealt with a New York statute that provided grants for parochial schools that cater largely to low income students. The legislature provided the money for school maintenance. It also reimbursed parents who qualify and provided tax deductions for parents who did not qualify. Another objective of this legislation was to keep the children in private schools to avoid public school overcrowding.
The Court found the legislature had a secular purpose in curbing overcrowding in public schools. But it nullified the statute anyway, stating that it advanced religion and entangled the government with religion. This statute’s chief objective was parochial school maintenance. Public school overcrowding was a secondary concern. The NJ decision, on the other hand, was about bussing. The beneficiaries were parents and children.
In 1971, the Court had to decide whether the Higher Education Facilities Act of 1963 was constitutional. The Act provided grants to church-sponsored colleges to build facilities that would be used for nonsectarian purposes. Twenty years after the grant, the schools would be permitted to use the facilities for Christian and other religious purposes.
The Court held that the grants would be permissible if the state eliminated the 20-year provision. While the statute had a secular purpose and would not entangle government with religion, the 20-year provision would advance religion.
The Court’s new accomadationist stand
1983 marked a turning point. Justice Sandra Day O’Connor voiced the Court’s new philosophy. There will be less government entanglement with religion if lower courts monitor Christian and other religious organizations less and trust them more to adhere to government requirements not to disburse government funds with a secular purpose, she said.
For the same reason the Court began to give states and their statutes the same deference.
In 1983, the Minnesota legislature made parents of school children eligible for tax deductions, the stated goal to help fund tuition, textbooks, and transportation for their children’s public or parochial education.
The Court upheld the statute. It passed the 3 prong test: Its secular purpose was to enhance the education of all students; it avoided advancing one religion; and it did not entangle government with religion.
Ensuing Court decisions furthered the accomadationist trend. A 2002 Court decision, is one example. The case involved a pilot program that allowed poor students from Cleveland to attend participating public and private schools, with the help of $2,500 a year, government-sponsored tuition vouchers. A lottery was needed because the volume of students applying to enter the program far exceeded the number of students the program could accept. Students choosing to stay in their public school would have access to tutorial instruction. Eighty-two percent of the participating private schools had a religious affiliation. Ninety-six percent of the students attended religiously-affiliated schools.
The Court found Cleveland’s voucher policy constitutional. It based its decision on a five-prong test it devised for this and subsequent voucher cases. To be constitutional voucher programs must:
Have a valid secular purpose
Aid parents and not the schools
Benefit a broad class of students
Be neutral with respect to religion
Include adequate nonreligious options
The Court held that the purpose of the program was to improve educational opportunities for students in failing public schools. The money was given to parents, not the schools. A diversity of students representing various races, creeds, nationalities, and religions participated in the program. The program allowed parents to send their children to public schools and nonreligious private schools.
Charitable Choice
Outside the realm of case law, much has been made of President George W. Bush’s faith based initiative in 2001 that opened the door to government funding for pervasively Christian and other religious organizations. What gave him the opportunity was a provision of the 1996 Welfare Reform Act passed by President Bill Clinton called charitable choice.
Before charitable choice, the only Christian and other religious organizations to receive government funds disbursed social services via a separate nonprofit organization that they set up solely for that purpose. Since charitable choice, pervasively Christian and other religious organizations have had equal access to federal bids and grants that allow them to provide social services.
Some wondered if charitable choice was constitutional. A Court decision in 1997 cleared the air even though the case was not about charitable choice. Here Justice O’Connor partially rewrote the test so that the third prong supplements the second. She added two other qualifiers. Recipients of government funding still must ensure it serves a valid secular purpose and does not advance religion.
But to satisfy the “does not advance religion” prong, they must only ensure that the aid:
Is not being used for religious indoctrination
Defines the eligibility of participating organizations without regard to religion
Does not create excessive government entanglement
From 1971 decision, the Court had demanded that government funding for Christian and other religious organizations be indirect. The 1997 decision, however, suggested that direct aid could be okay.
When Congress passed and President Bill Clinton signed into law the 1996 Welfare Reform Act, the executive and legislative branches approved charitable choice and direct aid to Christian and other religious organizations.
President Barack Obama shows no signs of disapproval. The accomadationist tendencies in our government will continue into the foreseeable future — at least until separationist justices replace accomadationist justices on the High Court. The period since Charitable Choice and the faith Based Initiative has now ingrained the accomadationist perspective into government grant funding programs.
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