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July 16, 1999/3 Av 5759, Vol. 51, No.41
Supreme Court takes on issue of church-state
CHRIS GARIFO
Staff Writer
Government support of religious schools, and resulting intrusion into their classrooms, could become widespread if the U.S. Supreme Court upholds a federal program in place in Louisiana and an Arizona state law that involve public funds and private schools - both of which are being challenged based on the principle of the separation of church and state.
The court agreed last month to take on the Louisiana case and is expected to make a decision on it in the next year. The case involves a 14-year-old dispute over whether a federally funded program can provide money to religious schools for computers and other equipment.
A New Orleans-based federal appellate court ruled last year that the funding violates the separation of church and state, and as such, is unconstitutional. But the San Francisco-based Ninth Circuit Court of Appeals, which includes Arizona, upheld the program.
The Supreme Court has yet to decide whether it will hear the appeal of an Arizona case challenging a recently enacted state law that allows a tax credit of up to $500 for donations to organizations awarding scholarships to students to pay for tuition at private schools.
Clint Bolick, litigation director for the Institute for Justice in Washington, D.C., believes the Supreme Court will approve the federal program at question in the Louisiana case. He also predicted that the court, if it decides to hear the Arizona case, will approve the tax credit.
"The Arizona case should be easier (to decide) because the aid involved is much more indirect," Bolick said, "whereas in the (Louisiana) case, it involves a program where the aid is transmitted directly to religious schools."
Bolick's Institute for Justice has been involved in defending the Arizona tax credit through the various challenges that led to the Arizona Supreme Court upholding the law. He said the institute would remain involved if the U.S. Supreme Court decides to hear the case. Bolick said the court is expected to decide in October whether it will hear the Arizona case.
The Louisiana law not only violates the U.S. Constitution, said Sue Stengel, regional counsel for the Anti-Defamation League in Los Angeles, but opens the door to allowing, and possibly requiring, government monitoring of instruction at religious schools.
"You have the problem of government entanglement when you have to monitor what the computers are being used for," Stengel said, "and when you have the government looking over your shoulder determining whether or not it is being used for religious purposes.
"If you're talking about giving a math book to a religious school, we know that the math book will be used for teaching math. But when you give a computer to a school, it begins to raise questions of the fact that the computer can be used for sectarian and non-sectarian instruction. For instance, you go on the Internet and do research on world history and you can also learn about the Bible and do very religious learning; and religious programs can also be used on the computer."
The Institute for Justice's Bolick called the tax credit a vehicle to give parents a choice of where to spend their education dollars, and said the court "since 1983, has consistently upheld programs in which third parties are choosing where to spend public funds; in other words, students or parents are making the decision of where the funds will be spent."
"Placing resources at the disposal of individuals to spend as they see fit doesn't violate the principle of religious neutrality," Bolick said. "In fact, to hold otherwise would be to invalidate a whole range of programs that Americans have come to support and rely on, such as the G.I. Bill and Pell Grants, which may be used for religious education."
Stengel, however, said some view the tax credit as "a chipping at the wall of separation." Helping to educate children "is all well and good," she said. "But the intent of the First Amendment is to not further religion. We are all in favor of religious schools, there's no question about that. We're just not in favor of public funding for religious schools."
State Rep. Mark Anderson (R-Mesa), who supports the Arizona tax credit, said he doesn't think that the way the court rules in the Louisiana case will indicate or portend any particular leaning in the Arizona case because "the two really are apples and oranges." Anderson said he doesn't see the tax credit as a "separation-of-church-and-state problem."
"The original concept of separation of church from state is based on the idea that the founders did not want a state religion, because that's what they experienced in Europe," Anderson noted. "They all had different faiths, so they wanted the freedom to practice their own faith. ... The whole purpose of that was to say we don't want to have a state religion where we're persecuting some religions and we're favoring others. I think that's the whole point of it."
Anderson said the federal program being challenged in the Louisiana case could be seen as providing direct taxpayer support of religious schools, while the Arizona legislation does not, instead offering tax relief to individuals.
But Arizona State University law professor Paul Bender, who is a member of the Arizona Civil Liberties Union, disagreed. Through the legislation, "the government has authorized me to basically write a check on the state treasury for $500 payable to a (religious) school," Bender said. "If that's not direct government aid, I don't know what is."
Anderson suggested that the tax credit is similar to a tax deduction for giving money to a church-sponsored charitable organization. He noted that such deductions have long been available and have withstood constitutional scrutiny.
"We have all kinds of tax credits out there for all kinds of different things," Anderson added. "It's not like this is the only tax credit. ... The basic concept is that this is people choosing to give of their own money to things that are going to benefit the overall state, and therefore the state is granting them a tax benefit."
Bender noted that while a tax deduction reduces the amount of income on which a taxpayer must pay taxes, a credit allows the taxpayer to send money that it otherwise would owe the state to an organization benefiting religious schools instead.
Bender also said that, with the Arizona tax-credit case, the justices "really haven't had anything just like this." Bender said that while the court in the recent past has been "increasingly tolerant" of state support of various kinds of religions, that support usually has been restricted to such things as permitting religious use of state buildings when those buildings can also be used by other institutions.
"They have never yet permitted this kind of direct support," he said.
Bender said the ACLU has asked the court to hear the case but admitted he's not confident about how the justices will rule if they do. "But I think it will be a close thing," he said.
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