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Does The Constitution Hate God?

From the Associated Press we learn that a Denver judge has thrown out a school voucher program that would have let parents use vouchers to pay tuition in private schools.  For the ACLU and other critics, this was unconstitutional because some of the schools are, gasp, religious.  To use taxpayer money to support religious schools violates, they claim, the First Amendment’s ban against the establishment of religion.

Not being a legal scholar myself, and mindful of arch-blogger Meagan McArdle’s wise caution,

[T]he fact that I think something should be proscribed by the constitution, does not mean that it in fact has been.  The practice of using the word “unconstitutional” as a synonym for “things I do not like” is scurrilous, and should be abandoned…

I will disagree with the judge on the merits without calling him out as a constitutional nincompoop.

Here’s a layman’s view: the First Amendment rightly prohibits federal support of any one religion.  The government may not use taxpayer money with the purpose of promoting one religion or denomination over the rest.  But that does mean that government can have nothing to do with religion; indeed, the same First Amendment also prohibits the government from interfering with the right of individuals to the “free exercise” of the religion of their choice.

Presumably in Colorado, people of all religions and people of no religion are equally free to start private schools.  In such a case, a voucher program that leaves parents with a free choice of which school to use it for doesn’t compel anyone to do anything.  If family A sends its kids to Catholic school, family B chooses the non-religious day school down the street and family C sends their kid to an evangelical Protestant school, nobody is being forced into anything, and the government isn’t establishing any particular faith.

If interfering busybodies at the ACLU think that religious schools should be subjected to tougher scrutiny than non-religious schools, or that schools should be barred from participation in government programs because they are religious and for no other reason, then they are fighting the “free exercise” clause.  Do Americans lose rights because they choose to pray?  Does the choice of a religious template for the education of young people exclude Americans from benefits for which they would otherwise be eligible?

I say, open the floodgates.  State and local government can properly mandate that all schools eligible for voucher programs meet certain tests.  But those tests must be reasonable and limited to the state’s proper interest that future citizens know something about our democratic institutions and have learned skills that make it unlikely that they will need government assistance as adults.

The government should not have a pet religion which it promotes to the exclusion of others — but neither should the government discriminate against Americans who want to send their kids to private schools that happen to have a religious mission.

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  • Gordon Pasha

    If one can use a Pell grant to go to a religious college or Medicare money to pay for a religious hospital, the religious argument against vouchers looks ridiculously inconsistent…

  • Russell Snow

    I think the compulsion is supposed to be in having your tax dollars going to a religious school.
    The government already has a pet religion – Atheism.

  • peter38a

    Can’t agree sir. Shall voucher money go for a Wahabi based school, or how about Wicca? Religion is a “peculiar institution” that should not receive tax dollars in any form.

  • Jason

    @Russell Snow:
    That is quite possibly the funniest thing I’ve hear in years. I would love to see someone run for president and claim to be ab Atheist-that would be the shortest campaign ever. You are [mistaken]..

  • Randy


    It may well be a good idea that religion should not receive tax dollars in any form, but I’m not persuaded that the First Amendment dictates that. If you really think that, then propose another law making it clear.

    This is a classic case where the nominal Jeffersonian ACLU reveals itself to be full of baloney. They twist language to meet their supposedly enlightened definitions of liberty and use the judiciary to impose it.

  • peter38a

    Randy, thank you for your response. First, sir, I am not obligated to “propose” any law based on my dissenting view. Once in California I voted against a proposal to establish a garbage dump which I thought too close to several communities. I was not then obligated to gather extensive resources, study the science and social consequences and then propose another site. Please sir, think that through.

    I, in principle, do not want religion in schools. We apparently have different perceptions here but I do not find all religions to be the same, many have pernicious teachings. What’s more I don’t recall any individual (Jesus, Buddha, etc) saying, “Boys, I want you to start a “religion” named after me and based on what I am saying, and it’s ok if you murder and burn at the stake anyone who dissents for, I don’t know, the first thousand or two thousand years or so.” But then I haven’t researched the subject exhaustively, perhaps you could enlighten me about such an individual. Awaiting your reply I assure you I’d be delighted to reconsider my position.

  • Russell

    The decision was actually based on the Colorado constitution, which has a Blaine amendment explicitly forbidding any government entity, specifically including school districts,from providing any public money in any form for supporting a school controlled by any church.

  • Randy

    I don’t see that you addressed the point I made. To reiterate, it is certainly reasonable to object to mixing of religion and government in principle, but my point is that strict separation as the ACLU argues doesn’t follow from the First Amendment. As the quote by Megan McArdle says, just because you think something should be unconstitutional doesn’t mean that it is. Pushing a religious viewpoint in public schools is a clear violation of the First Amendment. Arguing against vouchers for the same reason is a twisting of the First Amendment.

  • Jim.

    Well, let’s see. If corporations are people, then couldn’t religious schools be considered people as well?

    And, if there shall be no religious test to qualify people for a position of public trust, how is it Constitutional to require schools to pass a religious test — i.e., that they have no religion — before they are allowed the public trust of educating our children?

    I think WRM has a pretty solid point, though — if there are multiple competing schools available, including secular public schools, then who’s forcing anyone to do anything by allowing parents to send their kids to a religious school?


    “Go ye therefore, and make disciples of all the nations, baptizing them into the name of the Father and of the Son and of the Holy Spirit: teaching them to observe all things whatsoever I commanded you” (Matthew 28:18-19 ASV)

    So yes, Christ committed us to spread Christianity. And no, it didn’t involve burning anyone at the stake.

    Strictly speaking, requiring a Christian not to proselytize (by teaching) is violating that Christian’s right to practice religion freely.

    (By the way, I am not defending any method other than teaching here, so I’d appreciate it if you didn’t pretend I was.)

  • Kris

    Peter, you are misunderstanding Randy. What he said is that you are entitled to your ideas on schools and religion, and (perhaps) welcome to try to pass any laws you wish regarding this, BUT that does not mean that the opposing position is unconstitutional. Feel free to argue otherwise, of course.

  • Randy

    Kris, that helps.

    Another way of expressing the point: the law on vouchers may very well be a bad law but that does not mean it is unconstitutional.

  • Glen

    As noted by Russell, this decision was not based upon the First Amendment to the U.S. Constitution. In fact, the U.S. Constitution had nothing whatsoever to do with this particular litigation.

    The Colorado Constitution explicitly prohibits taxpayer aid of any school that has a religious affiliation. There is no corresponding language in the U.S. Constitution.

    Professor Mead’s entire commentary is pretty much off-topic.

    • Walter Russell Mead

      @Glen: I was discussing the case from the standpoint of principles. As it happens, I believe the Blaine amendments are wrong; they violate religious freedom for exactly the reasons I stated. The Blaine amendments were part of an anti-Catholic, anti-immigrant wave of feeling; any usefulness they might have had is long gone. As a practical matter they tend to make difficult what we should be making easy — bringing private citizens and civil society into the construction and management of educational institutions; as a moral matter they infringe the liberty of religious people, Catholic and otherwise. (I am one of the otherwise.)

  • cas

    If there is a provision in Colorado that “explicitly forbids any government entity, specifically including school districts, from providing any public money in any form for supporting a school controlled by any church,” then why is taxpayer money used to support schools which promote the “Religion of Gaia,” that the environmental movement espouses? Their rants concerning the “proven consenus science” of the causes of climate change should be enough for any non-biased person to see that their entire arguement is based on faith (in computer-models).
    Why is this religion allowed, and taught as science, in taxpayer-funded Colorado public schools?

  • JKB

    Okay, no religion in government. Now, explain why my tax dollars are being used to support the poor and unfortunate? They bring nothing but burden to society, why support them? (Mind you, no appeal to Christian or any other religious teaching regarding charity is permitted)

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