Religious Neutrality and School ChoiceThe Supreme Courts of Ohio and Wisconsin have upheld voucher plans with parental choice of religious schools, but a federal judge recently struck down such a plan. The principle of neutrality is at stake in these decisions. There is obviously a great war over ideas, over truth in society. Some believe there is no God and some believe there is. Some believe Jesus is the Messiah and some do not. Some believe the cosmos is a vast collection of random actions which has produced life on earth and some believe God placed man here on earth as the pinnacle of creation.

This battle over truth takes on religious overtones as well as scientific ones. The Kansas Board of Education recently decided simply that evolution need not be a requirement in the state mandated curriculum, yet the secular priesthood went berserk claiming falsely that creation was being mandated. If their religious-scientific view of the origin of man is not taught, then the “heresy” of creationism might be taught. Does anyone really “know” how the universe began? Was anyone present? Can the experiment be replicated by science? Both evolution and creationism require some degree of faith, as does the question of the existence of God and what he requires of man.

Yet, what should be the government’s position on religious issues? What should we force everyone by law to believe and what should we allow freedom to believe? This lies at the heart of the tension of the First Amendment religion clauses. We don’t want to coerce religious belief; therefore, the establishment clause prevents government from establishing any religion, especially its chosen religion. Some who are hostile to religion would simply stop reading the Constitution at this point and say the establishment clause is all there is.

But the Constitution goes on to specifically allow the free exercise of religion. We are not to be free from “all” religion, only from the establishment of religion by the government. The whole Constitution is designed to allow the full flourishing and robust development of religion by individual decision, choice, desire and action through the free exercise clause. The free exercise clause must be as vigorous, robust, important and alive as the establishment clause or the Constitution is out of balance.

Neutrality is the position the Constitution adopts – no compulsion or coercion, no competition among the sects for political power and government benefits, but equality before the law. No favored position for some belief, but a level playing field for all beliefs.

What is the neutral position on educational choice? Some say the neutral position is for government to provide a non-religious education to all, free of charge. That is the position of the secular establishment. It sounds neutral, especially if you are not interested in a religious education. But if you look more closely, what is being excluded from this “neutral” formulation? By its very definition, the religious viewpoint and religious speech in education are being excluded. The government is funding secular speech and excluding religious speech. By this apparent “neutrality,” it is actually favoring secular education over religious education. Religion and religious speech are not treated neutrally, but actually disfavored. A rigid establishment clause forces any overtly religious material out of publicly funded education, but puts an incredible burden on those who want religious speech in their child’s education.

Isn’t the logically neutral position on educational speech that the government should fund all education equally, but that individuals should be free to choose how they spend that money? Shouldn’t the government say, “we want an educated citizen ” so we will pay everyone to go to school, whether they are Catholic, Baptist, Jewish, Muslim, Atheist, or Agnostic?”

When the religion of public schools was Christianity, it was not neutral. (It did have the advantage of at least reflecting the majority view, thus justifying majority support.) Since 1962, the secular view is the religion of public schools and it is not neutral. This hostility to religion can be more clearly seen if the state said, “As a state, we will pay for high school for all students in the State, except Catholics.” Such religious discrimination would be unconstitutional. Then why isn’t it unconstitutional for the State to say, “We will pay for high school for all students, except those with sincere religious beliefs?”

Allowing the free exercise of religion is not an establishment of religion. If it were, putting the free exercise clause in the Constitution would itself be an establishment. The very purpose and effect of the free exercise clause is to advance religion. The state is not establishing a religion if it allows its citizens to exercise their own religious beliefs, even in an activity that it subsidizes, as long as there is no compulsion. That is why the fire department can put out fires at churches, and the police department can respond to burglaries at churches (which by the way, are also exempt from taxation). It clearly benefits the church to have police and fire protection, but everybody gets the benefit. It is not subsidizing or establishing a church; it is simply providing a benefit to all citizens regardless of their religion. That is the heart of a just and civil society that will allow freedom for each individual.

A publicly funded K-12 education is a government benefit already provided to the people in every state in the U.S. Children have the right, regardless of their religion or lack of it, just like every citizen and every business has the right to police and fire protection. The government should provide those benefits neutrally and not favor one intellectual or religious viewpoint over another. The battle is too great. It needs to be fought by individuals on a level playing field, not with one group in control. Government must fund all education and educational speech equally and neutrally and let individuals decide for themselves what brand of education they desire for their children. This not only comports with First Amendment religious neutrality, but the fundamental right of parents to direct the upbringing and education of their children.

Allan E. Parker, Jr., a former Professor of Education Law, is President of the Texas Justice Foundation (TJF). TJF is a non-profit, public interest litigation group representing people at no charge in cases of limited government, free markets, property rights, and parental rights.