Court's voucher ruling differs from other 'funding' of religion schemes

By J. Brent Walker

Reflections
July 24, 2002

The fundamental principle influencing the Baptist Joint Committee's opposition to school vouchers is that tax dollars should not be used to finance the teaching of religion. Government does so no less by passing vouchers through the pockets of parents. This is particularly problematic when nearly all the participants wind up in religious schools.

After the recent Supreme Court decision in Zelman, we got some e-mail taking issue with our argument. One sought to challenge our position by pointing out other funding schemes that have engendered little opposition in an effort to highlight supposed inconsistencies in our anti-voucher argument.

Let me use these points to help explain the difference between financing parochial school tuition through vouchers and other forms of what appears to be government-funded religion.

1. Religiously affiliated colleges receive government funds through direct grants and student aid.

Unlike virtually all religious K-12 schools, most religiously affiliated colleges are not pervasively sectarian. The Court has consistently held that such institutions of higher education may receive direct grants as long as the money is not used for a religious purpose. Moreover, college students receiving governmental aid enjoy a wide variety of choices — public, private and religiously affiliated. In a real sense, the aid goes to the student who then makes a genuine choice about where to "spend" the aid.

2. Chaplains are paid by the government.

People in the military, prisons or state hospitals are not able to gain easy access to religious services. Out of respect for their right to freely exercise their religion, an accommodation is made to provide them such services at taxpayer expense. A much less compelling argument can be made for Congressional chaplains because lawmakers have a variety of choices both in Washington and in their home district. Instead, history and tradition are used to justify the practice.

3. Religious world hunger organizations receive government aid — either funding or in-kind surpluses.

Yes, religiously affiliated social service agencies at home and abroad receive government aid. Although motivated by religious convictions, they do not integrate the teaching of religion in their operations. If they do, they should not get funding or surpluses. This is the heart of the debate about the propriety of "charitable choice."

4. Contributions to churches and other religious nonprofits are tax deductible.

There is no comparison with vouchers. In the one case government decides to give money to a religious organization; in the other it declines to take taxes from citizens and charities. Tax exemptions and charitable deductions lift a burden on religion rather than extend a financial benefit. They are viewed as a permissible accommodation rather than an impermissible advancement of religion.

5. Some states defray the expense for transportation and books for parochial school students.

The Court has long upheld this kind of aid under a so-called "student benefit" theory. Providing transportation and books to parochial school students along with public school students benefits the religious school only tangentially. States may not want to provide such aid to parochial school students, but doing so is not unconstitutional.

Church-state issues require tough decisions. General principles have to be applied in fact-sensitive cases. Unless one is prepared to accept a complete merger (fund everything, even churches) or a tightly sealed-off separation (fund nothing that even smacks of religion), we will have to draw lines and grapple with the tension created by the no establishment and free exercise principles and the competing rights of citizens.

Doing so does not belie the truth of the basic principles or justify charges of hypocrisy. It means we live in the real world.