The First Amendment goes wild

The use of money has no real limitations and the state should not be providing it to churches or their subsidiaries.


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”  These are the opening words of the First Amendment of the Constitution.  Basically, they mean that Congress is supposed to be neutral with respect to religion.  It should neither establish it nor block it.  This seems simple enough, but it turns out that it is not.  The amendment also applies to the states.  So if a state provides money for repaving playgrounds, must it provide such money to a religious school?  In 2017, the Supreme Court ruled that Missouri may not exclude a church school from a program that funds playground resurfacing, finding that discrimination based on “religious identity” violates the First Amendment’s protection for free exercise of religion.  You might scratch your head at that but finally say, “Okay.  Playgrounds have nothing to do specifically with religion.  So you cannot deprive someone of a better playground just because it is used in a religious school.”  Well, what about books?  If the state provides money to purchase books for schools, must it provide money for a religious school to purchase Bibles?  Can it provide money for any school to purchase Bibles?

Let’s leave those last two questions alone and look at a decision SCOTUS  made just the other day.  “ The U.S. Supreme Court effectively killed state constitutional provisions in as many as 38 states that bar taxpayer aid to parochial schools. . . . The court’s decision is the latest in a series of recent rulings that have lowered the traditional wall separating church and state by requiring government entities to treat religious and nonreligious institutions more equally, even when that means sending public money to religious institutions.”  This is an example of when a law that tries to avoid establishing religion is found is prohibit the free exercise thereof.  

“The Montana Legislature passed a bill providing a dollar-for-dollar tax credit for individuals who donate to organizations that provide scholarship money to students in private schools. An organization called Big Sky began raising money to fund these scholarships, using the tax credit as an incentive. Of the 13 schools that got scholarship money from Big Sky, 12 were religious schools. Indeed, 70% of all private schools in Montana are religiously affiliated.”  The Montana courts held that its legislature could not permit the tax credit to apply to religious schools without violating the state constitution’s equivalent of the First Amendment.  But SCOTUS overruled them, requiring the credit to go to religious schools as well as other private schools.

So now let us ask: can public money go to schools for the purpose of purchasing Bibles?  To me, the answer depends on the purpose for which the Bibles are used.  If the schools use the Bibles for non-religious purposes, such as educating children about the importance of the Bible in American history, I can certainly see why public money could go to that purpose.  But if the school uses the Bible for religious purposes, to convince children that the Bible is the word of God and should be obeyed, I would call that use a religious purpose.  Therefore, providing public money for that purpose should be banned by the First Amendment.

However, it is difficult to see how one could control the use of a Bible in a religious school.  It might be used for religious or non-religious purposes, whereas a public school is not supposed to be teaching religion, and therefore the book would not be used for religious purposes.  As a result, one could understand providing Bibles to libraries or public schools but not to religious schools. I don’t see how one could allow providing Bibles only to religious schools, as that would clearly be establishing religion.

In the Montana case, given that 70% of all private schools are religious, I can understand the decision by the state courts that there should be a distinction between religious and non-religious schools.  At a certain point, defining schools as “private” and providing them with public funds and ignoring the fact that they are mostly religious seems to be a tricky way of getting around the prohibition of establishing religion.  If the state chose to provide a credit for people who donated to public schools, I doubt that there would be a requirement to provide a similar credit for those who funded private schools, whether or not they were mostly or not mostly religious.

One clearly cannot bar a religious school from an activity permitted to a non-religious school.  As for providing public support for an activity (like playgrounds), it would seem that the state is prohibiting the free exercise of religion if it provides playgrounds only to non-religious schools.  But money (like Bibles) can be used by religious institutions both for religious and non-religious purposes and the state has no real way of controlling those uses.  Therefore, the state should be able to distinguish between the recipients of money.

I think that SCOTUS is interpreting the constitution in a way that is undermining the purpose of the First Amendment.  Requiring the state to provide monetary support to religious institutions constitutes the establishment of religion.  The state should be required to provide goods and services to religious institutions only when those things are not used for religious purposes – like, for example, water.  The use of money has no real limitations and the state should not be providing it to churches or their subsidiaries.


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