‘Respecting an establishment of religion’

By Leonard Hitchcock

Here’s one way to state the problem:  In 1947 the United States Supreme Court decided a case involving a school board’s decision to reimburse parents of children attending religious schools for the cost of transporting those children on buses used by the public schools.  This practice was challenged on the grounds that it violated both the state and federal constitutions’ prohibition of governmental aid to religious organizations.  The court ruled that there was no violation, and the practice could continue (Everson v. Board of Education).   

In 1971, the Idaho Supreme Court considered a case in which the state of Idaho was challenged because it had refused to grant a request that parochial school children be transported to their schools on public school buses.  It did so on the grounds that such a practice would violate the state’s constitution (Art. IX, sec. 5).  The court upheld that refusal, agreeing that the state’s constitution did, indeed, forbid the practice (Epeldi v. Engelking).

The issue in these two cases was what sort of relationship between government and religion was constitutionally permissible.  Specifically, the issue was whether or not the “establishment” clause in the federal Constitution, and Idaho’s version of that clause in its own constitution, allow such aid to religious schools to occur.  The federal rule is a 10 word phrase: “Congress shall make no laws respecting an establishment of religion…” The Idaho constitution, to quote the Epeldi decision, “in explicit terms prohibits any appropriation…or payment from any public fund, anything in aid of any church or to help support or sustain any sectarian school,” and, according to the court, must be taken “…to more positively enunciate the separation between church and state than did the framers of the United States Constitution.”

In its decision, the Idaho court recommended that if citizens wished such aid to be given to parochial schools, they should “submit the issue to the electorate by a constitutional amendment” In 1972 that was done, and the voters turned it down. In the current legislature, another revision was proposed, not in connection with busing, but with the state’s existing programs of college scholarships that allow recipients to attend religious colleges.

The First Amendment is binding on the states, so the question is: Is Idaho’s version of the establishment clause compatible with that of the First Amendment? An answer involves deciding just what those 10 words actually mean, in practice.  Unfortunately, that has been the topic of bitter disagreement.  Even the U.S. Supreme Court, whose official job it is to answer the question, has reached inconsistent conclusions and changed its perspective over the years.

There’s little doubt, though, that the clause forbids legislation that would establish a state religion, or have the effect of preferring or supporting one sect rather than another. It’s also agreed that legislation cannot endorse or assist a religious tradition, such as Christianity, or even religion in general, as opposed to atheism or agnosticism. 

But, just as clearly, the clause does not rule out every kind of nondiscriminatory aid.  If it did, police and fire departments wouldn’t be allowed to respond to emergencies at parochial schools. Between those extremes, how much and what kind of aid remain matters of ongoing dispute.

I believe that Idaho’s version of the establishment clause is historically and judicially defensible.  In fact, ironically enough, it takes very much the same attitude as did the justices who decided the Everson case.  In that decision, the court wrote that “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa,” and the court quotes with approval Jefferson’s opinion that the establishment clause was meant to erect a “wall of separation between church and State.” 

Why, then, did the Everson court rule differently than the Idaho court on busing? Because, by a majority of one, the justices regarded school busing as a public benefit only marginally connected to the schools’ religious instruction, and felt that denying that service to parochial students would risk discriminating against them for religious reasons. The Idaho court felt that its state constitution did not allow enough latitude for those considerations to sway their decision.

It must be admitted, however, that, over the past few decades, the U.S. Supreme Court has tended to allow greater and greater assistance to church-run schools, going so far, in 2002, as to approve a voucher program in Cleveland, Ohio.  Jefferson’s wall, which the Everson court said “…must be kept high and impregnable,” has become little more than a picket fence — and a short one, at that. 

So, Idaho’s constitution may well be out of step with current judicial fashion.  It would still be interesting to know how Idaho citizens actually feel about their tax dollars being used to pay tuition at church-run schools.  According to Wayne Hoffman’s recent ISJ column on this topic (2/16/16), they won’t be given the chance to register an opinion, for the bill to revise the constitution has been dropped from consideration.

It’s worth adding, as a footnote, that Mr. Hoffman, who favors that revision, never uses the word “religion” in his column, or refers to the establishment clause.  Instead, he prates about “expanding educational choice.” He apparently thinks that if you don’t mention the elephant in the room, no one will notice it.

Leonard Hitchcock of Pocatello is a professor emeritus at Idaho State University.