The Spectacle Blog

Getting the Wall of Separation Wrong

By on 7.19.13 | 11:47AM

The themes of equality and oppression drive much of leftist thought. For leftists, there are certain societal structures that entrench inequalities in many economic and social spheres, and these inequalities exist to oppress and marginalize minority groups: women, blacks, immigrants, gays, the poor, the list goes on. It is therefore incumbent upon the leftist to advocate for an alteration or an abolition of the given structures, institutions, and traditions that keep these inequalities in place: access to abortions, affirmative action, amnesty, same-sex marriage, and socialized medicine, to name just a few of their aims.

But suddenly, when it is a Christian group that faces inequality and oppression, this worldview no longer carries weight for the leftist.

Take the recent editorial from the New York Times, titled, "Get Churches Out of Public Schools." In response to legislation in New York that would allow congregations to hold services in public schools not in session—free spaces available for use by other organizations—the ever-enlightened Times editorial board argues that such a "misguided idea could turn public schools into houses of worship, essentially funded by the government." The editors cite for support the New York affiliate of the American Civil Liberties Union (ACLU):

Donna Lieberman, executive director of the New York Civil Liberties Union, has argued repeatedly that this resolution and state legislation must be defeated “in the interests of religious freedom.” Separation of church and state under the First Amendment, she said, rests on the understanding that “religious freedom is better protected when the government is prohibited from favoring any particular religion or favoring believers over nonbelievers.”

Did you get that? In the interest of your ability to worship freely, the government must prohibit you from using public spaces. Andrew Lewis at Public Discourse does an excellent job eviscerating this poor logic. First though, he provides some background information for the particular case at hand:

New York state law authorizes local school districts to allow community, civic, and public recreation organizations to use public school facilities during off-hours if the uses are “nonexclusive” and “open to the general public.” In New York City, the Department of Education developed a standard operating procedure for local groups to use public school facilities, though organizations were prohibited from using the schools for “religious services or religious instruction” in an early version and “religious worship services” in a more recent one.

Since 1994, a small religious congregation—the Bronx Household of Faith—has been trying to use local public-school facilities for its religious services, as it outgrew the ability to meet in congregants’ homes. The church achieved some success after the Supreme Court’s decision in Good News Club v. Milford Central School (2001), which permitted religious groups to use school facilities, but the Second Circuit Court upheld New York City’s denial of access to public schools in 2011. In December 2011, the Supreme Court declined to hear an appeal of this decision based on free speech and free exercise of religion claims, upholding the Second Circuit’s decision.

Following the decision, some New York City Council members promised to change the law. On May 22, 2013, the City Council, in a 38-11 vote, moved to take the appropriate constitutional remedy, asking the New York state legislature and governor to amend the New York Education Law “to afford houses of worship maximum access to school property.” It was this move that prompted sharp criticism from the New York Times and the ACLU.

Lewis then goes on to show how baseless and unprecedented their constitutional understanding is. He also exposes their unprincipled attack on equality:

... the First Amendment demands equal access to public facilities for religious organizations and non-religious organizations. Policies that restrict religious organizations from gaining access to public facilities such as public schools, but offer access to other groups, are engaging in viewpoint discrimination and infringing on the First Amendment rights of religious groups and religious people.

Contrary to the view of the Times and the ACLU, the rights of religious exercise, free speech, and equal treatment are infringed upon when school boards and local communities discriminate against religious groups. Religion becomes disfavored and discriminated against when schools allow access to sports clubs, community organizations, philosophical societies, and environmental groups, but not to groups that would like to use schools for religious services.

The underlying problem here is that the Times and the ACLU are buying into—or perhaps knowingly perpetuating—the perverse but pervasive view among secularists that the separation of church and state requires a separation of religion from policy. Yet that's plainly false. As Lewis describes it, it's an "application of the oversimplified rhetoric of Everson v. Board of Education's (1947) 'high and impregnable' wall of separation." 

Interestingly enough, in his latest essay for National Affairs, George Will makes an astute historical observation with one of the founding fathers:

Yet even the founders who were unbelievers considered it a civic duty—a public service—to be observant unbelievers. For example, two days after Jefferson wrote his famous letter endorsing a "wall of separation" between church and state, he attended, as he and other government officials often would, church services held in the chamber of the House of Representatives. Services were also held in the Treasury building.

Oh how I wonder what the ACLU and the New York Times would say to that!

Lewis furthers that this "focus on no-establishment has blinded them to the peril of discrimination." Moreover, they hold a fundamental historical misunderstanding or misapplication of the Establishment Clause: The whole point is to allow religion to thrive free from government control:

The primary purpose of the US Constitution’s religion clauses is to prevent the government from infringing upon religious exercise. The provision that “Congress shall make no law respecting an establishment of religion” is a means to promote that end. When no-establishment, instead of free-exercise, becomes the emphasis of church-state jurisprudence, the First Amendment’s principles are reversed. The emphasis on protecting people from the government is morphed into protecting the government from religious people and religious organizations.

And within the last 30 years or so, the Supreme Court has time after time reaffirmed the proper understanding of the Establishment Clause, championing "the constitutionality of equal access for religious organizations." Lewis provides ample evidence, citing almost a dozen cases in which the religious have been allowed to worship freely in public spaces.

Lewis ends with a wonderfully cutting remark: "For two organizations supposedly devoted to progress and equality, their Establishment Clause positions are markedly antiquated and discriminatory."

Perhaps the Times, the ACLU, and other secular leftists ought to refrain from inconsistently applying their notions of equality and oppression. And perhaps they ought to heed George Washington's warning in his Farewell Address that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

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