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?

1. http://www.aclu.org/blog/religion-belief/school-vouchers-inflict-more-harm-good
2. American Civil Liberties Union (1986-1995). Policy guide of the american civil liberties union. New York, New York: ACLU. Policy 86. p. 168.