Saturday, September 10, 2011

The Establishment Clause

Time to take a break from summarizing ACLU policies. The policy guide is due today and I don't intend to check it back out for a while. (If you're wondering, I did get through roughly 40% of the guide by number of pages, not counting the internal ACLU policies I don't intend to cover anyway.)

Instead, I would like to explain one major point of disagreement I have with the ACLU.

Establishment Clause → Non-Endorsement

First I want to make it clear that I agree with the ACLU when it comes to interpreting the Establishment Clause as a ban on the government endorsing a particular religion or religion over non-religion. At least I believe it does now that the Bill of Rights has been largely understood as affirming individual rights against the government as a whole (thanks to Incorporation).

Even if there does turn out to be a flaw in such legal reasoning, I still wholeheartedly support the principle of government neutrality toward religious beliefs.

Non-Endorsement → Exclusion on the Basis of Religion

The ACLU overcorrects by insisting that non-endorsement requires that no public funds go to religious groups. Take the issue of school vouchers, for example. Here is a recent and typical formulation of the ACLU's stance:
This is not to say that parents don't have the right to provide their children with a religious education. The principles of religious liberty protect the rights of those who wish to observe their faith as they see fit. What these legal precepts should not allow, however, is for a religious education to be provided at taxpayer expense.1
I believe what's happening here is that the ACLU (rightly) understands that public funds going to religious organizations is often a bad means to the end of religious freedom, but failing to notice that it can be a neutral or good means to the end of religious freedom.

In the case of vouchers, the government would not be favoring one kind of religion over another, or religion over non-religion. The entirety of that kind of choices would lie with parents. So the money and the endorsement come apart in this situation, nullifying the usual grounds for objecting to public funds going to religious organizations.

I'll go one step farther. Imagine if voucher programs were implemented but parents were not allowed to choose otherwise-acceptable religious schools, simply because of the religious element. Wouldn't this discrimination be a clear violation of the Free Exercise clause?

By the way, why does the ACLU keep mentioning a "right" for parents to send their children to religious schools, while admitting poor parents might not have the ability to do so?
Freedom of religion does not extend so far that parents may withdraw children from classes which they feel conflict with their religious principles, even when they cannot practically avail themselves of the right to send their children to private schools.2
Can we infer that poor defendants have a "right" to counsel, but that it's acceptable for them to lack counsel because they can't afford attorney fees?

2. American Civil Liberties Union (1986-1995). Policy guide of the american civil liberties union. New York, New York: ACLU. Policy 86. p. 168.


  1. By financing religious vouchers, our government forces all of us to pay for the indoctrination of children into false and harmful mythologies and superstitions.

    Most religions are mutually exclusive, which means that at most, only one is true, i.e., the rest are necessarily false. Christianity for example, is comprised of many religions. There are hundreds of sects with mutually exclusive beliefs, i.e., "We're right - everyone else will burn in hell."

    This problem is further complicated because the human brain is designed to protect deeply held beliefs for life. The brain wires itself based on our life experience (synaptic plasticity), and beliefs are reinforced and protected by cognitive biases such as confirmation bias and cognitive dissonance. As a result, most children will go on to indoctrinate their children to believe the same false beliefs.

    You're arguing for the use of public money to finance the brainwashing of innocent children into nonsensical mythologies and superstitions, which will form their worldviews for life. To consider the harm this causes, consider the words and actions of the religious right, which poses a serious threat to democracy, world peace, and our way of life.

    Our government has no business involving itself in the further delusion of our citizens. We're force to pay taxes, which means that we're all paying for mythological indoctrination.

  2. Anonymous,

    We're not talking about religious vouchers; we're talking about education vouchers. The only thing the government forces you to do is pay for schooling that meets common educational standards.

    Any religious atmosphere in otherwise-acceptable private schools is not the government's concern. It would be analogous to the government refusing to authorize otherwise-acceptable foster parents because they would take children to church...except in the voucher case, we're generally talking about parents making decisions about their own natural children.

    You should not feel responsible for what legal recipients of public benefits choose to legally do with those benefits.

  3. >We're not talking about religious vouchers; we're talking about education vouchers.

    In theory, yes. However the vast majority of private schools are religious and the champions of vouchers are mostly religious zealots intent on destroying public education.

    That makes this a church-state issue.

  4. Yes, right now vouchers would largely be used for education with a religious spin. But — and this is vital — not because the government would be promoting religion.

    Policy 99 of the ACLU guide talks about how the ACLU wanted the Equal Access Act repealed because allowing students to choose to form and participate in officially-recognized religious clubs seemed like a violation of the Establishment Clause. ...except now the ACLU routinely uses the Equal Access Act to fight opposition to Gay/Straight Alliances. Secular Student Alliance clubs are also benefiting.

    There would have been no need for the attitude reversal if the ACLU had recognized the element of choice between what schools allow and which clubs students form. Same deal with vouchers. It doesn't matter if most parents who use vouchers will choose to send their children to religious schools; it matters that the law is set up in a non-discriminatory way.

  5. I understand your position Garren. The problem with the voucher argument is that it's entirely based on fairness for the parents, i.e., it doesn't consider the rights of children.

    If we use public funds to warp their innocent little minds, we sentence many of them to a lifetime of intellectual slavery, with no hope of freedom.

  6. Anonymous,

    Are you opposed to private religious schools as an alternative to public schools, even when parents are paying without government aid?

  7. Personally, yes. Constitutionally, it gets complicated.

    I'm arguing against the use of public funds to fund religious education.