Tuesday, April 5, 2011

"... in any manner whatever ..."

I suppose Monday was a pretty busy news day, but the Supreme Court yesterday handed down a disturbing and somewhat unnoticed ruling. In a 5-4 decision, the High Court ruled against an Establishment Clause challenge to an Arizona tax credit program, holding that the plaintiffs lacked standing to sue. The tax credit applies to donations to organizations that provide scholarships to students who attend private schools, including private religious schools.

This ruling is distressing on several fronts. First of all, the Court did not consider the substance of the suit, which is ultimately about government aid to religious institutions. I know what a thorny area this is, especially when it comes to private religious schools. But if the issue is to be decided by what the founders of this country had in mind with the language of the First Amendment, then there seems to be little room for debate.

One year after it approved the Bill of Rights, the same congress took up a matter connected to the census. In the discussion, James Madison explained why the census must not include a question of what citizens do for a living. He noted that it would be wrong for the government to list religious professionals because “the general government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this, in ascertaining who [are] and who are not ministers of the gospel” (emphasis mine). No one argued with Madison’s reasoning.

Note this sweeping interpretation of the First Amendment by the very founders who adopted it. Because it is “proscribed from interfering, in any manner whatever, in matters respecting religion,” the government could not even ask people what they do for a living because the question might be posed to a religious professional. The prohibited government action of asking people what they do for a living is a far smaller government involvement in religion than offering tax credits for religious schools.

Even more disturbing is the High Court’s ruling that the plaintiffs lacked the standing to sue. The suit was brought by taxpayers who claimed their rights under the Establishment Clause were violated by the Arizona law. In her dissent, Justice Elena Kagan said, “The court’s opinion offers a road map — more truly, just a one-step instruction — to any government that wishes to insulate its financing of religious activity from legal challenge.” Kagan goes on to list numerous powerful and troubling examples of the can of worms opened by this decision that you can read here. But Baptist Joint Committee for Religious Liberty General Counsel K. Hollyn Hollman sums up the problem nicely when she notes that this ruling “denies citizens the right to fight for strong protections against a governmental establishment of religion.”

Finally, this ruling is disturbing because Jesus’ rejection of the temptation to use the power of government to accomplish his mission argues strongly for a separateness between church and state. He died not with the sword of government in his hand, but with the spear of government in his side. Christ’s followers do well to be leery of government efforts to be involved in religion "in any manner whatever."


Bruce T. Gourley said...

Well stated, David. This is a very troubling development, a major breach in separation of church and state.

Dottie said...

You are saying it all very well for us, David. I hope more people see your comments and take them to heart. I see you bring Christ's dealings with government into the argument with great skill.
Dottie Lewis, Religious Liberty Comm of BGAV

Dottie said...

Thanks for this clear statement, David. You and Justice Kagan have said it very well. I particularly liked you expression of Jesus having died with a government sword in his side, NOT in his hand. Grim, but true.

Dottie Lewis - member
Religious Liberty Comm of BGAV