The Supreme Court has decided that religious schools cannot be excluded by state tuition assistance programs. This is an expansion, in many ways, of past decisions on vouchers that permit religious schools to take part in voucher programs.

I have seen a fair amount of discussion online that focuses on particulars of this case and what it means. Almost everyone is discussing the decision from a set of first principles– fundamentally, those who want religious education to be strongly supported in the US by tax dollars are thrilled, and those who are do not believe the government should fund religious schools are against it.

I don’t think this conversation is being had in bad faith. I do find it a little frustrating that folks are not talking about what their view point means, especially those that are in favor of religious education.

Beyond my own opinion, as someone who identifies as Jewish and is quite uncomfortable with creeping Christianity into the public sphere, I am deeply troubled by the idea of entanglement.

In a landmark case, Lemon v. Kurtzman, the court came up with a three part test for religious activity mixing with government activity. The Lemon Test is as follows (from Wikipedia linked above):

  1. The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
  2. The principal or primary effect of the statute must neither advance nor inhibit religion. (Also known as the Effect Prong)
  3. The statute must not result in an “excessive government entanglement” with religion. (Also known as the Entanglement Prong)

What happens when we fund religious schools? Programs that do so generally have a secular purpose– the provision of a public, secular education. In tuition assistance and voucher programs, states may fund religious schools for the purpose of delivering the secular education of public schools. There are all kinds of tests about how that money can be used– if there’s a religious education component, can public funds be used? The case law here is important to understand, but for the sake of understanding the Lemon Test, they key is that these vouchers and assistance programs are to have private institutions deliver education in place of the state.

In this way, the effect prong also comes into play– what will be the primary impact of the law? In the case of a tuition assistance program, it is not the case that any advancement of religion through the existence of the program makes it religious. It is the case that the primary effect has to be something other than religious. You can’t pass a law that pays a preacher’s salary whose duties are leading a religious congregation or proselytizing, but you might be able to pay a church to grow food that is provided to the hungry. In that case, the primary effect would be feeding the hungry.

It’s the Entanglement test that should have always doomed funding religious education. What does entanglement mean? Simply stated, the result of a religious institution being a part of a government program should not result in the government dictating to that religion the precise ways in which it can or cannot act. A religious institution cannot be tied up in complex bureaucratic oversight and complex relations. Essentially, the government should not be all up in religion’s business.

How can the government not be entangled, if it takes an interest in what students need to learn? States don’t fund education about anything, but instead have state standards and approved curriculum required to be a part of secular, public education. Of course the Church can have it’s own religious teachings, but how can the interest of delivering the same minimum education in the Church not lead to Entanglement? Those who want a religious education have easier, better mechanisms in place. For example, it’s quite legal to have “release” time for a religious education (see Zorach v. Clauson)– students can leave in the afternoon to receive a religious education. There’s a public institution, funded by the public, for the purpose of a secular public education, and then students can additionally receive a religious education at a separate, privately funded space.

The religionists want religious schools funded with public dollars because they explicitly want to remove the secular, state curriculum from children for free. The goal is to not have the state act with any interest in the education of students; of course that interest is why we have any public funds for education in the first place. To enforce the state secular education is delivered, states will run afoul of entanglement.

When you combine this decision, and a general erosion of entanglement, with the broad interpretation of the ministerial exception (see Our Lady of Guadalupe School v. Morrissey-Berru), how can the state enforce Kitzmiller v. Dover?

There are only two ways around this:

  1. Totally ignore the state’s interest in a free, appropriate, public education that does not advance a religious view.
  2. Totally abandon a judicable standard for direct funding of religion for any public purpose, opening up all government activity to being delivered in part or whole by religionists.

There are people who believe that– dismantle public education because there is no public interest, there are no public, secular values to preserve. For those of us that believe there is a public interest in education and that there are public, secular values that government has an obligation to ensure for all students, it’s not clear what boundaries are left.