This past week, fellow columnist Vincent Mallet advocated for the right of private, religious schools to receive equal access to publicly funded scholarship programs. In concluding his discussion of this challenging constitutional issue, Mallet states, “the Supreme Court should affirm that religious schools cannot be legally discriminated against on the basis of their religious character.”
But this simply isn’t the case. Religious schools can and should be legally discriminated against on the basis of their religious character. Why? To say otherwise would render the Establishment Clause utterly useless.
The First Amendment establishes two conflicting constitutional principles: freedom of exercise and freedom from religious establishment. The Court has long struggled in applying these principles in context. At one point, the Court ruled that the display of a creche within a county courthouse was unconstitutional, but the display of a menorah and Christmas tree side-by-side only a block from the original nativity controversy was permitted.
Clearly, the issue is far more complicated than initially understood by Mr. Mallett in arguing to extend the scholarship funds to religious institutions.
Mr. Mallett cites Trinity Lutheran Church of Columbia Inc. v. Comer as precedent on the issue, but there is another Supreme Court case which is far more apt to address the scholarship issue at hand. In Locke v. Davey, the Court upheld the constitutionality of a publicly funded Washington state college scholarship program, which excluded from eligibility those students who intend to pursue a degree in devotional theology.
Recognizing the fraught tug-of-war between respecting both freedom of exercise while maintaining freedom from religious establishment, the Court ruled that the program and Washington State Constitution displayed no animus towards religion and was thus constitutional. Additionally, the Court recognized the state interest of preventing public funding from serving a religious purpose as both legitimate and long-standing throughout history.
It was in this decision that Chief Justice Rehnquist famously established the “play in the joints” theory of the two Religion Clauses, stating that there is some measure of gray area between what is allowed by freedom of exercise and what is required by freedom from religious establishment. Essentially, he argued Washington could have constitutionally provided scholarship funds for degrees in devotional theology, but it was also under no constitutional obligation to do so. Therefore, Locke precedent dictates that excluding religious institutions from publicly funded scholarship programs is not a violation of free exercise.
We would go even further than the Court to say that not only are states allowed to enforce this exclusion, they are in fact required to do so. Respecting freedom from religious establishment requires the government to provide only the most limited forms of support for religious institutions, especially when it comes to religious education. The government may support certain policies, like those that further a larger public good such as child safety in getting to and from school or equal access to play facilities, but these are limited in scope and nature. Scholarship funds undoubtedly encompass a promotion of a religious education, rather than simply the sustenance of legitimate general governmental objectives, and thus any publicly funded scholarships for religious institutions should be deemed unconstitutional.
Mr. Mallet argues that the standard of strict scrutiny should be applied in this case, and asserts that the state’s interest in excluding religious institutions from publicly funded scholarships does not rise to the level of compelling. We disagree.
Avoiding an Establishment Clause violation has been found to be a compelling enough interest to warrant an abridgment of certain rights. As Justice White wrote in Widmar v. Vincent, “the interest of the State in avoiding an Establishment Clause violation may be a compelling one justifying an abridgment of free speech otherwise protected by the First Amendment.” Widmar was a free speech case, but free speech is a fundamental right in the same way that freedom of exercise is a fundamental right, and thus should be subject to the same level of scrutiny. If avoiding the establishment of religion is a compelling enough interest to abridge free speech, it should be compelling enough to abridge free exercise.
And there is a very real danger of violating the Establishment Clause in this case.
First, because forcing a state to even partially fund a religious school unconstitutionally promotes adherence to that religion. A state choosing to fund a program implies support for that program. When state funds go to religious institutions, even indirectly, reasonable observers may conclude that the state supports that religion, which is one of the evils the Establishment Clause is meant to protect against. A state should not even appear to support one religion over another. This fear is likely what led to Montana to draft an Establishment Clause for its state constitution which is even more explicit that the U.S. Constitution. According to precedent established in Locke v. Davey, Montana has the right to make its state Establishment Clause stricter than the one in the U.S. Constitution. Perhaps Mr. Mallet disagrees with Montana’s decision to do so, but he cannot disagree that they have the right to draft their state constitution in this way.
Second, because the test the Supreme Court uses to determine whether a law breaches the Establishment Clause is the three-pronged Lemon test. Under the Lemon test, a law violates the Establishment Clause if it does not have a secular purpose, has the primary effect of promoting or inhibiting religion, or fosters excessive government entanglement with religion. Requiring states to allow religious schools to partake in publicly funded scholarships violates the third prong of the Lemon test. In granting religious schools the right to access publicly-funded scholarships, the state would be forced to oversee the use of those scholarship funds in order to ensure they are still serving a secular, non-religious purpose. According to the Court, it is quite clear that this type of monitoring qualifies as excessive entanglement with religion.
For these reasons alone, the provision of state funds in the form of scholarships utilized by those attending religious institutions is a violation of the Establishment Clause.
The American educational system has completely transformed since our founding from an entirely private endeavor to a majority public one. It should come as no surprise that K-12 parochial schools are struggling to meet enrollment rates and basic funding requirements. With the increasing availability of quality public education, the onus is on religious schools to become competitive with public schools, rather than rely on funding from the state or federal government.
This may seem like a harsh reality and one we would struggle to accept, especially at a place like Notre Dame. However, it has never been the responsibility of the federal government to preserve the private religious education system. In fact, that’s just blatantly unconstitutional.
The students at Notre Dame, as well as the administration, have made genuine efforts to bolster the future of K-12 religious education with such programs as the Alliance for Catholic Education. These are the types of initiatives we should be implementing to preserve the legacy and standing of a Catholic education, rather than relying on a state or federal government for an unconstitutional handout.
Jackie O'Brien is a Notre Dame senior studying political science and peace studies, originally from the Chicago suburbs. When she's not writing for Viewpoint, you can find her attempting to complete the NYT crossword, fretting over law school applications or watching RuPaul's Drag Race. She can be reached at jobrie21@nd.edu or @im_jackie_o on Twitter.
Mary Szromba is a senior majoring in philosophy and political science, and she’s never been wrong about anything in her entire life. Questions, comments, and anonymous love letters can be directed to mszromba@nd.edu or @_murrrrrr on Twitter.
