June 14, 2001

Equality For Religion In The Public Sphere
by
Nathan J. Diament
Director, Institute for Public Affairs
Union of Orthodox Jewish Congregations of America

For some years now, the State of New York has allowed its public schools to discriminate against religion.  No, they don’t make Jewish students attend separate classes or refuse to hire Catholic teachers; but they do discriminate against religion after hours and this week the U.S. Supreme Court ruled against this practice.

New York law provides that local public school districts may make their facilities available during non-school hours “for holding social, civic and recreational meetings…pertaining to the welfare of the community… provided that such uses are non-exclusive and open to the general public.”

Pursuant to this law, the upstate community of Milford enacted a policy that bars any individual or group from using its public school after hours for any religious purpose.  This policy prompted Milford to deny the Good News Club, a Christian youth group, permission to meet on premises after school because their meetings include prayers, Bible study and a discussion of moral issues from a religious perspective.

The club sued the school district claiming that allowing secular groups to use its facilities after hours but not religious ones amounted to an unconstitutional violation of their right to free speech for it excluded them solely on the basis of their religious viewpoint.  Federal trial and appellate courts both ruled against the youth club on the grounds that Milford’s policy was “reasonable” and viewpoint neutral.  On Monday, the Supreme Court reversed these rulings by a 6 to 3 vote.

This is not the first time that New York’s public schools have shut their doors to religion.  At least two public schools in the Bronx refused to rent spaces to community churches for weekend prayer meetings.  Those churches also sued and lost in New York’s federal courts.

The core question in today’s debates over the parameters of the church-state relationship in the United States – whether related to state subsidies for parochial schools, President Bush’s faith-based social service initiative or religious use of public facilities – is whether religion and its adherents are entitled to equal treatment by the state, including equal benefit from state resources, or whether religion will be treated unequally and restricted from full participation in America’s civic life.

Many, no doubt, find it jarring to think of religion as being treated unfairly in America.  We do have profound religious freedom in this country.  But that freedom is only as broad as the space within which it is allowed to exist.  No one questions every American’s right to believe or worship as he pleases… in private.  It is when faith comes into the public sphere that our debates still rage.

When Joe Lieberman tethered public policy arguments to religious foundations last year, questions were raised.  John Ashcroft’s opponents asked about his ability to wall off his “fundamental beliefs” from his duties as Attorney General.  Similar inquiries are not made of those who bring their secularly based arguments to the public square even if they hold fast to them as devoutly as the faith-believer does his.  And that is only with regard to public debate; when resources are to be allocated you can be sure the stakes and the volume are higher.

While many forms of state subsidies to parochial schools – such as busing, textbook loans and special education instructors – have long been ruled constitutional, opponents have continued to fight their implementation or expansion because they do not want even a portion of funding reallocated out of their programs to those of other schools and families.  While the government already provides grants to private, non-profit social service agencies, President Bush’s initiative to give faith-based agencies an equal opportunity to receive these grants is being opposed by some, no doubt, because funds may be reallocated.  In each of these instances, restricting the faith-based schools and charities from equal footing in the public square serves to narrow the competition.

The Good News Club case provides the clearest example of the drive to keep religion confined to the private sphere.  Although the classroom where the club would meet is otherwise unoccupied after hours, to allow a religious group equal access to public facilities on an equal footing with other social and civic groups is to admit that the religious are entitled to equal footing outside the confines of their own community.  How else to explain the Milford School District’s willingness to let groups that deal with “the secular subject of morality” to use their facilities but not the Good News Club, or any other group that might discuss morality from a religious perspective?

The Supreme Court rightly rejected the argument, endorsed by some prominent Jewish organizations, that the Establishment Clause requires government’s unequal treatment of religion.  In fact, the majority opinion stated that the constitutional “guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies, and viewpoints, including religious ones, are broad and diverse.”

This is as it should be in America – where we all enjoy the right to profess and act upon our beliefs.  Government ought to maintain a studied neutrality among religions and between the sacred and the secular in general.  This is the position ratified by the Supreme Court this week, and it should be welcomed by the entire Jewish community.

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