- Attacking
Religious Influence: The Case of School Choice
by Quentin L. Quade
Among the efforts to strip religion of social influence, perhaps none is more blatant than the so-far-successful attempt to deprive parents of freedom in education. Enemies of parental freedom via school choice without financial penalty rely heavily on repeated assertions that genuine school choice inevitably violates American guarantees against unacceptable intermingling of church and state. This is, I am inclined to think, the most common smoke screen used to obstruct the liberating truth about school choice. It is, indeed, the smoke screen of first and last resort. Advocates of parental freedom often limit their rebuttal of this red herring to pointing out that prevailing legal precedents indicate that properly framed school choice legislation will pass legal scrutiny. That is an important point, of course. Indeed, it is a necessary one. But, to blow the church-state smoke screen away completely requires a somewhat more multi-faceted discussion than it usually gets.
Legalisms vs Political
Reality
Much or most of the effort to use church-state fears to block parental
freedom in education is cast in so-called "constitutional" categories and
language. Reason: the "only in America" historical accident
of judicial review which permits and even encourages courts to act as policy-makers
under the guise of "applying the constitution"; and which permits and even
encourages those who cannot mount a serious, open political argument to
look for a court willing to use constitutional excuses to defend a policy
position.
Thus, for example, the defenders of the educational funding status quo (educational finance monopoly, or EFM, under which all tax dollars for education are assigned by state bureaucracies and only to the state's own schools) lost substantial influence and control in various state legislatures in the elections of November 8, 1994. They soon saw the legislative results in new parent- and child-serving educational funding policies in Wisconsin and Ohio, and similar though incomplete developments in other jurisdictions. And, predictably, these defenders of the EFM status quo sought to block these responsibly and meticulously developed policies by raising the church-state flag before various courts, inviting those courts to nullify the properly formed political expression of the peoples' true representatives.
Anyone who listens carefully and critically to the legal arguments before these courts will realize instantly that the whole framework of discussion is illusory and serves only the interests of the legal profession, both courts and attorneys (what Supreme Court Justice Antonin Scalia called 'the counter-majoritarian preferences of the society's law-trained elite,' in dissenting in U.S. vs Commonwealth of Virginia. We may note that the only thing truly 'elite' about them is their privileged power, not any notable native talent.) These electorally non-responsible courts are actually functioning as mini-legislatures, making policy even though they are non-responsible minority-rule bodies. They do this even while talking of state and federal constitutions as if those constitutions actually settled such particular questions as whether poor Milwaukee or Cleveland parents should be permitted to assign some of the tax dollars already dedicated to their children's schooling. Unless saddled with a Blaine amendment-type impediment, state constitutions do not settle such a question, and certainly the federal constitution does not. To pretend that they do is the necessary premise for permitting courts to take unto themselves what is properly legislative authority. It is a form of aristocratic, elitist nonsense which, though nonsense, greatly inflates the power of the judiciary and the legal "class" generally.
The foolishness of it all can be seen, for example, in the March 29, 1996, 3-3 tie on the Wisconsin Supreme Court when it considered the expansion of the Milwaukee Parental Choice Program to include religiously-sponsored schools. The vote itself — three judges "finding" an impediment, three saying there obviously was none — and the legalistic efforts by attorneys and judges to define the terms of the argument as "constitutional," while at the same time actually acting on the essentially political motives each possessed, make plain the truth of things: all such efforts are in effect legal subterfuges behind which non-responsible forces attempt, often successfully, to frustrate the political judgment of responsible elected officials.
In truth, all the federal Constitution says re church and state is this: do not establish a specific religion or church (for to do so may violate the freedom of conscience out of which religious choice should proceed, and could expose the state to churchly manipulation); and do not enact governmental policies which will entangle the churches in the government's web (and thereby threaten to pervert church purposes). These two cautions, naturally evident to the Founders given their experiences, are just prudent counsels, well worth reflecting on and being guided by at any time by both politicians and church leaders.
To attempt to stretch such prudential principles so far as to use them to block parental assignment of already-extant tax dollars dedicated to education can happen "only in America" — for only in America has the tradition of judicial review given courts and the legal class the kind of non-responsible license which permits settling political issues behind legalistic smoke screens. EFM's defenders and certain allies who do not want religiously-motivated citizens to have the full rights enjoyed by other citizens, and always ready to use the church-state smoke screen, today find it indeed the "smoke screen of last resort," their last bastion for defending monopoly and obstructing parental rights. Because we are in the United States, and judicial review is still with us, parental freedom champions must play that game, and play it successfully, of course. The alternative is to submit voluntarily to enslavement via legal manipulations. But even as we play the game we must recognize its artificiality, and remind ourselves and all others that behind the game's artifices there is political reality. In the hands of defenders of the monopolistic educational status quo, church-state fabrications are used to prevent the justice of parental freedom in education. This is a policy choice, not a legal interpretation.
The Truth About
Politics: Always About Moral Choosing
To grasp this fully, and once and for all clear away the church-state smoke
screen from the policy battleground over educational funding, it will be
helpful to dwell a bit on the realities of politics which rational, responsible
government should always recognize and manifest. The first and most
important of these realities is that politics inevitably involves authoritative
choosing among alternative paths of action. This choosing and implementation
of whatever path is selected is what the state exists for, when other,
voluntary methods of social decision-making have been exhausted.
The state is responsible for bringing an end to dispute and disagreement,
thereby protecting the social fabric and maintaining a relatively peaceful
order within which our lives may proceed. The method by which it
fulfills this vital task is to settle issues, to select among alternative
ways of settling them, and to be definitive, even while conciliatory, in
the act of choosing.
But the act of choosing inevitably reflects acts of moral assessment. The act of choosing, personal or political, involves assessing options in terms of their relative rightness and wrongness, goodness or badness, or in terms of good-better-best or bad-worse-worst. There is no other way for humans, or political societies, to settle serious issues in dispute. And that, which will be obvious if one thinks about it, gives the decisive lie to one of the favorite nonsense statements of American politicians: "You can't legislate morality!" With notable irony, that statement is usually uttered by politicians who want to "wash their hands" of some issue and, rather than stating their position plainly say, in effect, that the issue cannot be acted on (knowing full well that 'no action' is an action whenever a contested issue presents itself). Often enough, those who utter these infamous words are among the most judgmental politicians, fully ready to "legislate morality" when it suits their purposes. For example, as a Catholic I have cringed at the sight of the many Catholic politicians who have tried to avoid, rather than directly embrace or repudiate, the clear implications of Catholic teaching on abortion by saying "you can't legislate morality," while in the next breath saying, e.g., "let us legislate [the morality of] a higher minimum wage," or an altered welfare or Medicare policy.
As I wrote long ago, and as countless others before and since have expressed in similar terms regarding the "can't legislate morality" red herring: "Pardon me, but there is nothing else to legislate." Whether we like it or not, and no matter how much we might want to take refuge behind the "can't legislate morality" figleaf so as to appear less threatening, when we choose legislatively among humanly important alternatives we are "legislating morality," i.e., we are enacting a policy which reflects moral judgments about relative goodness and badness. Thus, though we cannot by legislation or fiat instill a new morality in recalcitrant souls, when we are legislating we are most assuredly enacting someone's moral vision.
All citizens, and all legislators representing them, bring a moral code to decision-making which will guide their political activity. That moral code may be altruistic and admirable, or it may be essentially egoistic and objectively indefensible, but they will have a code of behavior which tells them how to evaluate political options. The content of these codes will vary widely, and may be too diffuse to have political effect, unless mobilized, organized, and harmonized by the political process, especially in the legislative arena and the political parties which seek supremacy within them. Those parties seek to build legislative majorities by building electoral coalitions, and they do that by shaping platforms, or policy positions, meant to appeal to broad segments of the electorate. These policy positions are moral choices on the great issues of the day. That fact is indisputable, no matter how often and how loudly some politicians may utter the "can't legislate morality" slogan.
Just as the values brought to bear on politics will vary, so do the sources or inspirations of these politically pertinent values. The moral code which directs a person, in his general living and in his political life as well, may reflect family upbringing; or simple habit; or consciously-chosen philosophical convictions; or it may reflect religious teaching which the citizen takes seriously, such as the Ten Commandments or those general prescriptions amplified and specified in more particular credal statements.
When the citizen who is a religious believer finds in his belief system human values which should impact on his social conduct, he has every reason and every right to seek ways to manifest those values in his action. And, if it seems appropriate to him, he has every reason and right to offer these values as pertinent to public policy decisions. As we have already seen, those decisions inevitably will reflect someone's vision of right action, and to suggest that the believer-as-citizen cannot rightly bring his beliefs to bear on policy disputes is, in fact, to deprive him of both his religious and political rights. If a citizen believes that tax dollars for education, for example, should not be held only in state bureaucracy's monopolistic hands, for assignment only to the monopoly's own schools, that is his policy position. He may arrive at that position because of libertarian convictions skeptical of state virtue in general. Or he may be moved by "free market" convictions against monopolies, seeing them as humanly destructive. Or humanist convictions may tell him that parents would be well-served by participating in the assignment of tax dollars. Or he may be driven by general dissatisfaction with American educational results. Or he may be compelled by religious conviction that his child's education will best be pursued within an avowedly religious context and he needs a share of spending capacity to ease the financial penalty he now confronts in choosing an independent school. The source of his judgment is politically irrelevant. Each of these motives is an entirely legitimate ticket to enter the political arena, there to join forces with others who share the policy objective — parental freedom via school choice without financial penalty — whatever their motives.
The Reality of Religion
and Politics, and the Rightness of School Choice
And thus does religion rightly enter the democratic political arena:
not as a church seeking to displace the state but in the hearts and minds
of citizens who happen to be believers. To see this is to see clearly
the truth of things: citizen-believers who judge that a political
policy is abhorrent to them have the same right to seek its abolition as
does any citizen. Citizen-believers who judge that a prospective
policy is good have the same right as any citizen to seek its enactment.
When such believers-as-citizens act accordingly, they are simply exercising
their political rights. To say those citizen-believers are somehow
in that act a "church" seeking to "impose" itself on society is, in truth,
just an effort to deprive believers-as-citizens of their political rights
and capacities.
There is no clearer illustration of this perverse attack on citizen-believers' rights than the effort to block parental freedom in education on the grounds of "church-state violation." Having lost all rational, objective efforts to defend the indefensible EFM on educational grounds, EFM's defenders and their anti-religious allies end up saying (the Witters, Mueller, and Zobrest Supreme Court precedents to the contrary notwithstanding) "Well, it's all moot, anyway, for school choice violates the Constitution's guarantee against church-state entanglements." That is the smoke screen of last resort. For in the effort to end finance monopoly and enhance parental freedom via school choice there is no church-state issue anywhere present. There are only these two contestants: on the one hand, EFM's defenders, guarding the funding spigot; and America's parents, deserving educational freedom to determine their children's educational environment, on the other. School choice, as practiced in enlightened democracies around the world, simply enables parents to fulfill their responsibilities. EFM, by contrast, says parents should be held fully responsible for their children — but deprives them of the ability to fulfill that responsibility. That is a radical injustice.
Parental freedom via school choice without financial penalty has no church-state dimension. It puts spending authority in the hands of parents, who are its beneficiaries. Where the parents decide to assign those dollars is entirely their choice, not the state's. If they choose a Waldorf or Montessori school, or a Baptist, Lutheran, Jewish, or Catholic one, they, not the state, are the actors and definers. If those schools incidentally benefit from the free acts of parents, so be it. In this they are indistinguishable from, for example, the incidental beneficiaries of social security check spenders or government pensioners, who may decide with their checks to enrich the local church, or the local grocery store — or the local pub. When those governmentally-dispensed dollars are freely assigned by the social security recipient, we do not say "but not to your church," or "not to your pub," because we know that government's aim was to help the citizen, by expanding his economic freedom.
And that is school choice: expanding parental freedom by relieving them of the severe financial penalty attaching to the choice of an independent school. That is not a "church" program. It is a program to enhance parents' freedom, secure their rights, and, in the process, end a humanly-destructive educational finance monopoly. Religiously-sponsored schools are, in reality, just part of the educational pluralism a freedom-loving society will produce if educational funding serves parents instead of EFM. To say that parents should not be free to choose such schools is to be actively discriminatory toward parents who happen to be believers. It is a kind of ultimate deceit, for what it says contrary to all rationality is that religious beliefs are unacceptable motives for action. The often implied reason: religious beliefs give rise to extreme conduct. But that is an insulting, gratuitous attack on religion and religious believers. If a person of religious convictions undertakes extreme action, and attempts to justify it by appeal to religious rights, the extremism should be stopped and punished, as should extremism of any sort from any source. But the enemy there is not religion. The enemy is extremism, whatever its source and defense. And to label religious motive a priori as invalid is simply to succumb to one of the worst prejudices known to man. As a wellspring and motive for a citizen's action, religion has the same validity and legitimacy as does any other motivation. Indeed, it is typically more benevolent than many others. Democracy invites us to articulate our interests, including our interests flowing from religious motives, offer them in the public forum, and urge others, from whatever motivating inspiration, to join with us in framing a suitable policy adaptation.
The diverse social elements, or multiple constituencies, gathered around school choice are exactly that kind of political alliance of free people. To attempt to blind them and innocent bystanders with church-state smoke screens is to be guilty of anti-religious prejudice. Citizens who are religious believers have every citizen's right to bring those religious values fully to bear on American politics in every state and the nation. They do that whenever they say a given policy — school choice, for example — satisfies their priorities, and in so doing they are fulfilling the citizen's obligations as well as exercising his rights.
(1997)
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