american atheist magazine aug 1985
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August. 1985
/
nd Thought
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f Atheist News a
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otA
Supreme
Court Era)
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AMERICAN ATHEISTS
is a non-profit, non-political, educational organization, dedicated to the complete and absolute separation of state
and church. We accept the explanation ofThomas Jefferson that the First Amendment to the Constitution of the
United States was meant to create a wall of separation between state and church.
American Atheists are organized to stimulate and promote freedom of thought and inquiry concerning religious
beliefs, creeds, dogmas, tenets, rituals and practices;
to collect and disseminate information, data and literature on all religions and promote a more thorough
understanding of them, their origins and histories;
to advocate, labor for, and promote inall lawfulways, the complete and absolute separation of state and church;
to advocate, labor for, and promote in all lawful ways, the establishment and maintenance of a thoroughly
secular system of education available to all;
to encourage the development and public acceptance of a human ethical system, stressing the mutual sympathy,
understanding and interdependence of allpeople and the corresponding responsibility ofeach individual in relation
to society;
to develop and propagate a social philosophy in which man is the central figurewho alone must be the source of
strength, progress and ideals for the well-being and happiness of humanity;
to promote the study of the arts and sciences and of all problems affecting the maintenance, perpetuation and
enrichment of human (and other) life;
to engage in such social, educational, legal and cultural activity as willbe useful and beneficial to members of
American Atheists and to society as a whole.
Atheism may be defined as the mental attitude which unreservedly accepts the supremacy of reason and aims at
establishing a lifestyle and ethical outlook verifiable by experience and the scientific method, independent of all
arbitrary assumptions of authority and creeds.
Materialism declares that the cosmos is devoid of immanent conscious purpose; that it is governed by its own
inherent, immutable and impersonal laws; that there is no supernatural interference in human life; that man
-finding his resources within himself - can and must create his own destiny. Materialism restores to man his
dignity and his intellectual integrity. It teaches that we must prize our lifeon earth and strive always to improve it. It
holds that man is capable ofcreating a social system based on reason and justice. Materialism's faith is inman and
man's ability to transform the world culture by his own efforts. This is a commitment which is in very essence life
asserting. It considers the struggle for progress as a moral obligation and impossible without noble ideas that
inspire man to bold creative works. Materialism holds that humankind's potential for good and for an outreach to
more fulfillingcultural development is, for all practical purposes, unlimited.
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American Atheists - P.O. Box 2117 -Austin, TX 78768-2117
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August, 1985
Vol. 27, No.8
A m e r i c a n
A t h e i s t
A Journal of Atheist News and Thought
Editorial: America Taken Hostage - Jon G. Murray
2
Ask AA· 4
News and Comments: The End of A Supreme Court Era
5
Pedophilic Priests 13
The U.S.S.c. Takes A Day Off
16
Epicurus, Forerunner of Jesus - T. A Stroud
18
The Vatican and Reagan Against Liberation Movements and Liberation Theology - Lukas T. Schmid
20
The Grip of Mormon Patriarchy - Shelley Spear
23
Dial-An-Atheist 25
Historical Notes
26
An Acorn Is Not An Oak Tree·- Frank R. Zindler
27
Jainism - Margaret Bhatty
31
Poetry
33
Thinking Is Believing - Madalyn O'Hair
34
Me Too - Michael Hakeem
36
Book Reviews
37
Letters to The Editor
38
Classified Ads
40
Reader Service
40
On
the cover: This being the month of August, let's consider momentarily another use of the word august - i.e., awe- inspiring, admirable, majestic or
venerable. It has long been considered that the governments of nations should be august bodies - especially the judicial branches thereof. The courts
were supposedly intended to be just; to administer fair t reatment of individuals under the established laws of their respective nations. They were to reflect
unbiased judgements in a civilized and scholarly manner so as to further the pleasurable existence of the people and to protect the lives and property of all
- including, of course, even those minorities and/or offenders within the various cultures claiming to have social integri ty. Unfortunately, from time to
time, some such judicial bodies fail - miserably Certain of these experts of justice become obsessed with their power and authority. They, seeking
reliqious- like adoration from their charges, play to the popular demands of special factions within the society - willingly catering to whatever inequitable
prejudices are strongest or more aggressive. You've seen this happen time and again in the annals of history. It is happening today in America - the
home of the free and the brave. We would be wise to observe, very closely, the activities of our now right-wing fundamentalist judges who are traveling a
path that angles away from true honesty and integrity, lest our a ugust courts become cesspools of bigotry and favoritism.
G. Tholen
Editor/Robin Murray-O'Hair, Editor Emeritus/Madalyn O'Hair, Managing Edi-
The
American
Atheist magazine ispublished monthly by the American Atheist Press
tor/Jon G. Murray, Assis tant Editor/Gerald Tholen, Poetry/Angeline Bennet,
(an affiliateofAmerican Atheists), 2210 Hancock Dr., Austin, TX 78768-2596,and the
Gerald Tholen, Production Staff/Bill Kight, Claudia Kweder, Sandra M. P.
Society ofSeparationists, a non-profit, non-political, educational organization dedi-
McGann, Laura L. Morgenstern, John Sherrill, Gloria Tholen, Non-Resident Staff
cated to the complete and absolute separation of state and church. (All rights
/Lowell Newby, MerrillHolste, Margaret Bhatty, Fred Woodworth, Frank R. Zindler.
reserved. Reproduction inwhole or in part without written permission isprohibited.)
Mailing address: P.O. Box 2117, Austin, TX 78768·2117.Subscription is provided as
an incident ofmembership in the organization ofAmerican Atheists. Subscriptions
The
American
Atheist magazine
alone
are available at $25.00 for one year terms only. (Frequency: monthly. Library
isindexed in
and institutional discount: 50%.) Manuscripts submitted must be typed, double-
Monthly Periodical Index
spaced, and accompanied by a stamped, self-addressed envelope. A copy ofAmari-
ISSN: 0332·4310
can Atheists Magazine Writers Guidelines isavailable on request. The editors assume
copyright 1985by Society of Separationists, Inc.
no responsibility for unsolicited manuscripts.
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August, 1985
Page 1
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AMERICA TAKEN HOSTAGE
O
ver the past several weeks prior to
the writing of this editorial our nation
has once again been engulfed in the media
spectacular of yet another situation involv-
ingAmerican citizens taken hostage abroad.
In the midst of the hoopla and the rush to
expert opinions we seem to have lost sight
of some basics. The largest portion of the
group ofpersons recently taken hostage on
a TWA flight out of Athens were Roman
Catholic religious pilgrims, ofa sort, on their
way back from a visit to Rome, their holy
land. This means that from an Atheist view-
point we had a situation of one group of
religious fanatics holding another group of
religious fanatics hostage: Moslems holding
Christian, mostly Roman Catholic, hostages.
In addition, Jews on board the airliner were
singled out for special attention. There is a
meaning to this observation that our Ameri-
can media is reluctant to point out. The
meaning isthat the basic conflict inthe Mid-
dle East right now has its foundation in dif-
ferences of religious faith. Certainly politics
and territorialism enters into the roots ofthe
violence somewhat, but those politics are
based on the positions of theocratic states
and the territorial disputes are based on holy
scriptures.
The Irrational Politics of Religions
When disputes between either individuals
or nations are based on religion, they are
more emotional and irrational than disputes
based on economics or territorialism alone.
The very nature of religion is irrationalism,
and irrational thinking isa catalyst for emo-
tional and erratic behavior. This has been
demonstrated throughout history - that
persons are able to slaughter one another
with more vigor and with more frequency
over religious differences than any other.
The current war between Iran and Iraq is a
good modern example.
We Americans then wonder why our trav-
elers, military, or consulate personnel are
targets for hostage-takers. The answer is
simple. We have chosen to enter into an
essentially religious dispute and to take the
side of one particular religion, giving the
theocracy governed by that particular side
of the question the monetary and technical
support of an international superpower, in a
geographical area which is strife-ridden with
small nations' disputes. No other super-
power has inserted itself in the area. When
Page 2
our government chose to take sides in this
religious dispute, their powerlessness was
apparent to the small nations and small
groups then and since inconflict. The Unit-
ed States, by its intervention, laiditself open
for these smaller, nearly impotent, less-well-
organized groups, to seek to take pecks at it,
striking here and there where they could
with a hand bomb, a tiny determined group
of young martyrs, a dynamite-filled truck, a
quick flurry ofgun shots down a city street.
What chance has a sparrow against a hawk?
Ultimate, manageable, vulnerable targets
had to be found which would givethe groups
some leverage with the giant which had
intruded into their area. These were, finally,
our citizens, our non-civilian personnel, who
were caught in the middle there to be used
as pawns in the deadly game of hostage
standoff. Who indeed do we expect any
brand of Moslems in the Middle East to dis-
like when they know that every time an
enemy jet strafes their villages, or an enemy
tank rolls across their border, that itiseither
U. S. made or U. S. financed? The other
superpower with interests in the area is not
backing the Moslem side of the dispute to
anywhere near the extent monetarily, mili-
tarily, or otherwise that we are backing our
chosen side.
Impotence of Minorities
Thus we can see that America has gener-
ated with its own actions the hatred that
eventually comes to a head in a hostage
situation. Even when the side ofthe religious
question that we chose to back does some-
thing of equal or greater wrongness com-
pared to the taking of a few innocent per-
sons, we turn our back and pretend not to
see what has taken place. A case in point is
that Israel had held over seven hundred
Moslems in military prison camps for years,
against international law and without benefit
ofa trial. The persons holding the American
hostages were involved in standoff negotia-
tions for a matter of weeks with the stated
object of pressuring Israel into releasing
their fellows. But the lesson cries out - to
reach to Israel it was necessary to peck as
hard as possible at its superpower ally,
America.
We must also keep in mind that both the
United States and the side that we back in
the Middle East refuse to directly negotiate
with the other side. By refusing to negotiate
August, 1985
we force adherents of the other side of the
religious issue to take drastic measures to
force us, and Israel, into dialogue - to force
us to listen to their complaints. An open-
minded negotiation process with all parties
involved meeting face to face would lessen
the amount of terrorism in the area. When
the white majority allowed no voice or civic
representation to the Black minority in this
country, what did the Black minority do?
They rioted. They did so because they had
no other choice. They were denied any voice
through regular civilized channels and
thus could not be heard. The same is true in
the Middle East.
In the wake of the recent TWA hostage
situation Americans are calling enmasse for
militaryretaliation against Moslem communi-
ties by the U. S. military. Such retaliation will
not solve any of the problems in the area and
will only make the Moslem communities
hate America that much more and make
them that much more determined to re-
spond with likeretaliatory violence. Only the
retaliation willbe on a level of lesser sophis-
tication since that is the level at which they
find themselves in this unequal battle.
Psychological Hostage
Throughout all the media attention given
to this most recent hostage situation some-
thing occurred to me that was a revelation of
sorts, if Atheists can have such things. We
decry the taking of hostages or we belittle
the nations which we claim keep their citi-
zens as perpetual hostages, while at the
same time we keep one another, here at
home, hostage as well.
I know that at this point you must be .
thinking, What does he mean - we hold
one another hostage? What is he talking
about? It is really very simple when you
think about it. Let me explain. To do so I
must digress slightly. During the recent hos-
tage situation with the TWA passengers, a
number of radio talk shows around the
country were talking about something they
labeled the Stockholm syndrome. This re-
fers to the phenomenon of persons who are
held hostage hearing only one side of an
issue pumped into them over and over again
while they are being held, until at some point
intheir bondage they begin to agree Withand
even support the side of their captors. A
classic example in the United States was
that of Patty Hearst. It is well documented
American Atheist
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that persons tend to identify with their
oppressors after a period of time. This sort
of thinking has only been applied to relative-
lysmall groups of persons held in close con-
finement in the past. Why could it not, how-
ever, be applied on a larger basis?
We, here in this country, are exposed to
only one side of many issues. We are
exposed to a single viewofwhat isalleged to
be the best world economic system, the best
world social structure, the most desirable
world stance on religion, the best world
mode of dress, the best world diet, and
much more. The way in which Americans
are involved inallofthese facets ofculture is
supposed to be the best for all persons no
matter where located. We come quickly to
believe that every person inthe world should
emulate our position in regard to many
issues or our conduct in many, ifnot all, of
these areas. We all participate in a socio-
cultural monitoring of one another. We are
allvery concerned, whether welike to admit
it or not, with the image in the mind of oth-
ers: What willthe neighbors say if I am seen
doing this, or wearing that, or driving this, or
heard saying something not in agreement
with stated beliefs?
What Will They Think
When we go to work we are wary of our
coworkers and we constantly think, What
willthey think of me if Ido or wear or say so
and so? This is particularly acute among
persons of a minority race, religion, or view-
point. Atheists are one such group. Every
Atheist I have ever met in this country is
worried constantly about what others will
think about the fact that (s)he does not
believe in god. Itdoes not matter ifthis fear
is expressed or not or even if the individuals
are aware that they have such a fear. Every
Atheist I have ever met does. I do myself.
Whenever I am asked by a perfect stranger
in the course of a conversation that isstruck
up - say, on a public conveyance - What
do you do? Where do you work? I have a
built-in hesitation factor while the thought
races through my brain, What will (s)he
think of me when I answer this question? I
know that Imay be rejected out -of-hand as a
human being simplybecause of the label that
I carry. I willhave no chance to get across
what kind of person I am, what my value
systems are, what my personality is really
like. IfI want to be able to idly chat with the
person for several hours while we are in
transit, I might say, I am a corporate
officer. If they push for information, I can
add, ... ina publishing company. We can
get back then to a normal, even trivial, pleas-
ant conversation. It has been very hard for
me to make myself overcome that hesitation
factor and just blurt right out, I am an Athe-
ist activist, for example. Being a reasonably
prudent man, I know the consequences of
Austin, Texas
making such a statement.
We all find ourselves in similar situations
at our places of employment. We must have
a working relationship with fellow employ-
ees in such a situation and we cannot jeop-
ardize that fragile niche, job security, by
revealing that about ourselves which is not
acceptable to others in the work place. We
also findourselves confronted with the same
thing while socializing with friends. Desiring
their company, wanting human interchange,
we are constrained to withhold our opinions
while with them. We keep asking ourselves
with relatives, subconsciously, What will
they think? when we have deviated from a
norm to which we know they adhere. Most
of all, during our school days, during those
years when we are in educational institu-
tions, we are particularly trapped into tailor-
ing our personal habits, mannerisms, and
responses to the perceived desires or norms
ofothers. Thus we hold our own uniqueness
hostage to the interpretations and judg-
ments of others.
There are those of us then who come
along from time to time who participate in
this hostage role to a much lesser degree
than others. Such persons are often looked
upon as crude, indecent, abrasive, pushy,
intolerant, antisocial (and a host of other
adjectives) because they act with some
degree of spontaneity, failing to hold back
for that small moment of What will they
think of me?
The Beam in Our Eyes
We look on the television and see throngs
of Iranian women in chadors and say, How
can they wear those things? whileeach and
everyone of us have our own psychological
chadors. We do not realize that the Iranian
women can and do subject themselves to
wearing the physical chadors for the same
reason that women in this country subjected
themselves to wearing anatomically unsound
footwear for years. They hold themselves
hostage to the what willothers think ofme
syndrome. When I go out on a speaking
engagement, I wear a conservative, good,
business suit. I am uncomfortable in suits,
and I really don't like neckties either, espe-
cially in hot climates. Iwear a suit so that my
physical appearance will not overshadow
what Ihave to say at the podium in the minds
of the audience. It is part ofmy speech, in a
sense, like an actor wearing a period cos-
tume in a play. I do not want to appear in
attire that is sufficiently deviant from the
norm to shift the attention of my audience
from what Iam saying to what Iam wearing.
This is different than wearing a particular
kind of clothing out offearof what others will
think of you as a person. I know how
extraordinarily radical my verbal presenta-
tion is, and in these instances I want the
audience to have the opportunity to listen to
August, 1985
me, to accept or reject my ideas on their own
merits. I want a fighting chance. A lecture
situation gives that to me.
In all of the above instances, however,
there is no hope to explicate one's position.
A chance remark at work, a passing state-
ment to someone whose company one is in
for a short period, a sentence or two at a
social function, a quip while with relatives, all
can develop quickly into a debacle from
which one cannot easily extricate oneself.
Therefore, we dissemble. We are allguiltyof
deceit. We permit each person we meet to
think that we share the common, commu-
nal, ideas of the cultural pool in which we are
then located. It comforts me somewhat to
rationalize that we do so because in each
such situation we know we do not have the
fighting chance we need to make our posi-
tions known in such a way that they would,
by their overpowering logic, be accepted by
all.
I think that we must all ponder the ques-
tion ofwhat does it say about us that we are,
in essence, thought policemen or police-
women in the minds of those around us?
Each of us is keeping those we contact inline
and they are keeping us in line. Our culture
would never change ifitwere not forthe very
few ineach generation who break this circle
from time to time. No one breaks free from it
totally. It is just that some persons partici-
pate in it one hundred percent and others in
lesser percentages. It is those of us who
break out from time to time of the caring of
what others think of us who deliver hostage
people from the terror of conformity. Often
the break comes in regard to specific topics
that change society for better - or for
worse. We then simply carry the one hun-
dred percenters along in our wake.
To Sum It Up
We wonder why people take other per-
sons hostage in the physical sense to aid
them inapolitical or a religious dispute while
we are all in a sense hostages within our
cultures and in our relationships with one
another. Why should it be more wrong for
one person to hold another hostage with a
gun than to hold another hostage through
psychological or social fear? We must start
both individually and as a nation to look at
those things that we do for fear of what
others will think or say just as closely as we
look at what we do when someone has a gun
inour face. Ithink that itisequally as bad for
us to hold ourselves hostage to the thoughts
of those around as itis for someone to overt-
1yhold us - you or me - hostage with a
gun. We should all remember that the next
time we findourselves thinking less ofsome-
one because they have transgressed a social
norm or find ourselves in the grip of hesita-
tion over what others will think of us in
return. That should not be part of an Atheist
(Cont'd on
pg.
30)
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ASK A.A.
In Letters to the Editor, readers give
.their opinions, ideas, and in/ormation.
But in Ask A.A. American Atheists
answers questions regarding its poli-
cies,
positions, and customs,
as
well
as
queries of factual and historical situa-
tions.
While Iam no science-fiction buff, Ihave
always enjoyed the series Star Trek. Sure,
it's often a thinly disguised morality play, but
it does go well with late night popcorn and
pretzels.
Now some friends have told me that the
show was once censored by theists some-
where in the South. Is this true?
I
can't
imagine any scenes that could be considered
spicy or controversial.
Jorge Orton
Tennessee
It may
be
hard
to
believe,
but
it is true. In
1977,KXTX- TV, Channel 39, of the Dallas-
Fort Worth Metroplex area censored eight
key episodes in its re-run series.
KXTX- TV was an affiliate of the Chris-
tian Broadcasting Network (CBN), a Vir-
ginia-based evangelical company. Its pur-
pose was - in the words of the station
manager -
to
spread the gospel of Jesus
Christ. The main avenue of approach for
this purpose was slickly produced pro-
gramming, featuring live faith healing, ce o
lebrity talk shows, and rock'n'roll-like gos·
pel music. It also aired, however,
non-
religious programming, mainly syndicated
re-runs.
The
station's
plan
was
that
un-
saved viewers would tune in for Petticoat
Junction or Marcus Welby, M.D. and re-
main long enough to catch the commercials
for religious products and perhaps a gospel
show. The station manager said Frankly,
we use them as bait. One of the baits
selected by this
station was Star Trek.
Star Trek
often explored the
possible
effects that contact with alien
cultures
might
have on traditional human values, but this
exploration, and the occasional resulting
criticism of present political and religious
systems, fit well within the harsh standards
that the NBC of the 1960s set for its shows.
It was not, however, the vaguely liberal
religious
stance
of the
series
which upset
KXTX-TV
but Star Trek's
depictions of
things resembling occult forces, demonic
possession, and witchcraft. .
Seven shows were originally struck from
the re-run cycle. They were: Where No
Page 4
Man Has Gone Before, Star Trek's second
pilot
episode,
in which ESP and
telekenesis
were shown; Wolf In The Fold, which
features
an
incorporeal murderer, once
known as Jack the Ripper, who borrows
bodies and literally feeds on terror; The
Lights of Zetar, inwhich a young woman is
possessed by a disembodied and migratory
intelligence; Return to Tomorrow, where-
in highly advanced and very
old beings
take
over Captain Kirk's and Dr. McCoy's
bodies; Catspaw, a seasonal, Halloween
episode complete with witches, wizards,
and various spooks; Private Little War
starring a sorceress with a penchant for
ritual incantations; and And The Children
Shall Lead Them, in which children are
found playing among their
parents' bodies
and
using a
chant
to summon an
evil
angel.
Once the local Star Trek fans noticed the
missing episodes, a protest was mounted.
KXTX- TV relented somewhat; six of the
shows would be shown. And The Children
Shall Lead Them
was
still
on
the blacklist,
however. According
to
the May,
1977 issue
of
Starlog,
the
station
programming director
felt that the airing of the show would
increase the likelihood that children watch-
ing the program might be led into believing
that they can conjure up evil spirits. At this
point, however, the station cut a sequence
out of The Menagerie which featured a
Orion slave girl,
a
green
temptress pos-
sessing charms
that any man would literally
find irresistable.
Not surprisingly, the station manager
expressed firm approval of Bread and
Circuses, an often violent episode which
revolved around the Christian-likf' follow-
ers of the sun.
You say that the American Atheist maga-
zine isin about nine hundred libraries across
the nation. Well, it isn't in mine Why don't
you have it in all of them? How can
I
elp?
Lizzie Hill
Pennsylvania
If one considers that in the history of the
United States no out-out-out Atheist maga-
zine was ever permitted into either public
libraries
or in
colleges and universities,
our
record is
excellent.
As a
matter of fact it
is
typical that American Atheists breaks ground
for the first time everywhere and then
scattered littlegroups of not-so-brave lesser
August, 1985
persons follow in its wake .
American Atheists
had to
sue in
federal
court
in order
to
establish a
precedent
so
that
magazines
concerned with Atheism
would not continue to suffer discrimination
and rejection.
Patricia Voswinkel, Director of the Char-
lotte, North Carolina, Chapter of American
Atheists, together with the national organi-
zation, filed suit
in
the U.
S.
District Court
for the Western District of North Carolina
to bring this precedent in 1978. The Public
Library (system) of Charlotte and Mecklen-
burg County were charged with having
refused to receive and display the maga-
zine. The result of the suit was that the
library system
agreed
to accept the
Ameri-
can Atheist
and to display it
in a
manner
comparable to that of
religious
periodicals
received by the library. The magazine was
to be treated upon the same basis as those
representing the viewpoint of organized
religion. The Court Order was signed by the
federal judge on October 12, 1978.
If you want the American Atheist maga-
zine in your local library, go and ask the
periodicals department to order it. If it
declines, write and ask for a copy of the
case
of
Patricia Voswinkel and American
Atheists
v,
County of Mecklenburg and the
Public Library of Charlotte and Mecklen-
burg County. All you need to do is to show
this federal case to your local library: ifyour
library accepts and displays
religious
maga-
zines it must also accept and display the
American Atheist.
Many
libraries are suffering
hard times
with the cut-backs to public institutions
which the Reagan Administration has
caused. If they cannot pay for the subscrip-
tion - will you pay for it? Write and ask
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American Atheist
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NEWS AND COMMENTS
THE END
OF A SUPREME COURT ERA
Jefferson's Wall of Separation
between State and Church
On July 1, 1985,the U. S. Supreme Court
handed down two rulings having to do with
the Title
I
program of the Elementary and
Secondary Education Act of 1965, under
which the churches of the United States
have been accommodated with tax money
for many of their educational programs. A
small thin rank of concerned activists who
are motivated primarily against the Roman
Catholic Church receiving these grants has
kept up the good fight against such distribu-
tion of tax money for approximately twenty
years. They lose as often as they winand the
U. S. Supreme Court has toyed with non-
sensical explanations for its decisions as it
has slowlyeroded Jefferson's wallofsepara-
tion between state and church.
The public school system of the United
States, depending primarily on funding from
local real estate taxes, had been underfi-
nanced for two hundred years. During re-
cent times since World War
II,
there had
been incessant knocking at the doors ofthe
federal government for aid. But an enor-
mous drawback had been the intervention
ofthe Roman Catholic Church inthe federal
political arena, with its minions deliberately
blocking the passage of a bill for such aid
unless the parochial schools of that church
were included in the largesse. Under the
Kennedy administration the battle was al-
layed since he had pledged, as a Roman
Catholic president, he would not not give
such special aid to the schools ofhischurch.
Upon his death, Lyndon Baines Johnson
needed the Roman Catholic vote both to
shore up his administration and for re-
election. He therefore compromised with
the church inorder to obtain clear sailing for
the first large-scale federal aid to education
program. Under the program, from the
beginning, federal funds were sent to public
school districts, which were then required to
provide instruction - on an equal basis -
for impoverished children inboth public and
parochial (religious) schools. Atthe time this
was felt to be a politically feasible way for
government to aid parochial-school students
without unconstitutionally subsidizing the
propagation of religion. Knowing full well
that such aid (given under even the guise of
aid to impoverished children) was in fact in
Austin, Texas
derogation of the concept of separation of
state and church, various schemes for the
distribution ofthe funds were undertaken in
hundreds of school districts - and were ina
number of instances immediately chal-
lenged. In a series of what is called case-by-
case First Amendment jurisprudence, the .
U. S. Supreme Court has timidly ap-
proached this unsettling educational prob-
lem, slowly but certainly backing away from
a strict construction of the First Amend-
ment wall ofseparation as more and more
pressure has been brought for increasing aid
to religion in the school cases. The two
recent cases are but two in a series which
have come to the Court during the twenty
years since the passage of the Elementary
and Secondary Education Act of 1965.
The Problem:
Tax Money Aid to Church Schools
All concerned know that there is a politi-
cal fight headed by the Roman Catholic
Church to obtain tax funding for its schools.
Equally well known is the fact that the legal
and logical arguments against such financial
aid have slowlybeen lost. American Atheists
feelthis has occurred since none ofthe polit-
ical institutions inthe United States, includ-
ing the U. S. Supreme Court, has had cour-
age enough to say openly that religion
should not be subsidized because itit inher-
ently insane and inimicable to the human
spirit. As long as our culture continues to
treat religion not alone as a beneficence but
as an actual necessity for humanity, it can
hardly then deny tax monetary assistance to
its institutions.
Under pressures from the Roman Catho-
lic Church and its adherents, political subdi-
visions ofour nation (the states) have passed
laws enlarging the area of state aid to the
church-schools, usually drawing inpart upon
the funding provided by the federal govern-
August, 1985
ment. In order to effectuate the desired end
of direct tax money aid to the church-
schools, elaborate schemes have been made
and peculiar definitions have been coined to
pretend that the tax aid does not directly or
indirectly assist the churches which own and
operate the schools in question. This is, of
course, patently absurd. Religion is aided.
The Court, forced into a review of these
state laws because of litigation brought by
opponents ofsuch aid, has slowlypermitted
the states to provide church-related schools
with secular, neutral, or nonideological serv-
ices, facilities, or materials such as bus
transportation, school lunches, public
health services, and secular textbooks. All
such outreaches have provided for careful
governmental controls and surveillance by
state authorities inorder to ensure that state
aid supports only secular education, know-
ing fullwell that with church-related schools
there is no part of the program which is not
integrated with religious ideology. The appli-
cation of all of these aid programs to
parochial schools and the Court's carefully
structured arguments which permit them to
continue have been, of necessity, simply
elaborate exercises in deceit.
Because of this, the U. S. Supreme Court
itselfhas had to coin phrases to explain away
its lack of courage to face the issue. One
such has been the child aid theory which
pretends that the church-related schools do
not benefit from the tax dollars - only the
little children do.
In the cases, Aguilar v. Felton and School
District of the City of Grand Rapids v. Ball,
we see the same convoluted reasoning at
work. And this time both cases were re-
solved by a frail majority, 5-4. In both Bren-
nan delivered the opinion of the Court in
which Marshall, Blackmun, Powell and
Stevens joined. The dissents were byBurger,
White,Rehnquist, and O'Connor. The vic-
tory against tax aid to church-related
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NEWS AND COMMENTS
schools, if i t can be called that, is slim, and
the language of the cases does not give ade-
quate solace to those who desire to see a
continuation of separation between religion
and government
As has been usual inrecent history Presi-
dent Reagan again ordered the Department
of Justice of the United States to file an
amicus curiae brief on behalf ofthe religious
institutions in both cases.
Aguilar v. Felton
Majority Opinion of The Court
written by
Justice WilliamJ. Brennan, Jr.
In the first, Aguila r u . F el to n we find that
New York City uses federal funds under
Title I to pay the salaries of public school
employees who teach in parochial (that is,
religious) schools in that city. Federal finan-
cial assistance is authorized since this ar-
rangement is said to meet the needs of
educationally-deprived children from low-
income families. New York City makes the
teacher assignments, pays the teachers'
salaries, and supervises the teachers by
unannounced monitoring visitsto the classes
at least once a month. The funds are appro-
priated in accordance with programs pro-
posed by local educational agencies and
approved by state educational agencies.
New York City has been providing such
instructional services funded by Title I to
parochial school students on the premises of
parochial schools since 1966. Of those enti-
tled to receive such funds in 1981-1982,13.2
percent were enrolled inprivate schools. Of
that group, 84 percent were enrolled in the
schools affiliated with the Roman Catholic
Archdiocese of New York and the Roman
Catholic Diocese ofBrooklyn, and 8 percent
were enrolled in Hebrew day schools.
Inboth the Hebrew and the Roman Catho-
licschools, the lower courts found that there
was a system inwhich religious considera-
tions playa key role in the selection of stu-
dents and teachers and which has as its
substantial purpose the inculcation of reli-
gious values.
The programs conducted at these reli-
gious schools include remedial reading, read-
ing skills, remedial mathematics, English as a
second language, and guidance services. All
material and equipment used in the pro-
grams funded under Title I are supplied by
the Government and are used only in those
programs. The administrators of the paro-
Page 6
chial schools are required to clear the class-
rooms used by the public school teachers of
all religious symbols.
In 1978, six taxpayers started a legal chal-
lenge to the practice in a federal District
Court alleging that the Title I program
administered by New York City violated the
Establishment Clause of the First Amend-
ment to the Constitution of. the United
States. They sought specifically to enjoin the
further distribution offunds to the programs
involving instruction on the premises of the
religious schools. The case continued for
seven years before the July 1st decision. The
lower District Court held for the program
and against the taxpayers. The Court of
Appeals for the Second Circuit reversed the
decision, holding that the Establishment
Clause ... constitutes an insurmountable
barrier to the use of federal funds to send
public school teachers and other profes-
sionals into religious schools to carryon
instruction.
The U. S. Supreme Court granted certio-
rari (review) in 1984,and the case was heard
in argument, together with a similar one
from Michigan, on December 5th.
The distinguishing feature of the New
York City case was the use ofsupervision to
prevent the Title Iprogram from being used,
intentionally or unwittingly, to inculcate the
religious beliefs of the surrounding parochial
school. But it was just this which the Court
immediately saw as being an excessive en-
tanglement of church and state. The entan-
glement factor, the Court said, was rooted in
two concerns:
(1) When the state becomes en-
meshed with a given denomination,
the freedom of religious beliefof those
who are not adherents ofthat denom-
ination suffers.
(2) The freedo~ of even the adher-
ents ofthe denomination islimited by
the governmental intrusion into sa-
cred matters.
Quoting from a prior (1975) case, the
Court stated, The prophylactic contacts
required to ensure that teachers play a
strictly non ideological role, ... necessarily
give rise to a constitutionally intolerable
degree of entanglement between church
and state.
The Court also had sustained (1976)state
programs of aid to religiously affiliated insti-
tutions ofhigher learning (colleges), because
the institutions were not, allegedly, perva-
sively sectarian (i.e., religious) and because
the aid was allegedly for nonsectarian (non-
religious) purposes. In those cases, supervi-
sion was unnecessary to ensure that the
grants were not being used to effect a reli-
August, 1985
gious end. So, a test was laid down as to
what activity was entanglement of the
state with religion: the ability of the State to
identify and subsidize separate secular func-
tions carried out at the school, without on-
the-site inspections being necessary to pre-
vent diversion of the funds to sectarian
purposes.
In the case of New York City, however,
elementary and secondary schools are in-
volved and are found to have as a substan-
tial purpose the inculcation of religious val-
ues. The parochial schools receive funds
and report back to their affiliated church,
require attendance at church religious exer-
cises, begin the 'school day (or class period)
with prayer, and grant preference in admis-
sion to members of the sponsoring religious
denominations. Inaddition, the Roman Cath-
olic schools, which constitute the vast ma-
jority of the aided schools, are under the
general supervision and control of the local
parish.
The lower court found that the aid is pro-
vided ina pervasively sectarian environment
and that because the assistance isprovided
inthe form of teachers, ongoing monitoring,
and inspection is required to ensure the
absence of a religious message. In addition,
as the schools determine what isand what is
not a religious symbol which must be
removed from particular classrooms, they
must take guidance from the state as to what
is and what is not a religious symbol. In
addition, administrative personnel of the
public and the parochial school systems
must work together to resolve matters re-
lated to schedules, classroom assignments,
problems that arise inthe implementation of
the program, requests for additional ser-
vices, and the dissemination of information
regarding the program. Indeed, the aid pro-
gram necessitates frequent contacts be-
tween the regular and the remedial teachers
(or other professionals), in which each side
reports on individual student needs, prob-
lems encountered, and results achieved.
The Court then emphasized that the
neutrality inmatters religious, which prior
cases had defined, had an objective to pre-
vent, as far as possible, the intrusion of
either (Church or State) into the precincts of
the other. In New York City the picture of
state inspectors prowling the halls of paro-
chial schools and auditing classroom instruc-
tion surely raises more than an imagined
specter of governmental 'secularization of a
creed.'
Leaving the emphasis thus mainly on the
entanglement test of the Lemon tripartite
decision, the Court concluded that the City
of New York had well-intentioned efforts
but that these remained flawed both be-
cause of (1) the nature ofthe aid and (2) the
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NEWS AND COMMENTS
nature of the institution receiving the aid,
which implicated the constitutional princi-
ples that neither the State nor Federal
Government shall promote or hinder a par-
ticular faith or faith generally through the
advancement of benefits or though the ex-
cessive entanglement ofchurch and state in
the administration of those benefits.
The Court had half a dozen or more
carefully-reasoned prior cases which had
held substantially the same. It had chipped
away at the wallofseparation between state
and church until that wallwas a thin line. But
either the entire string of cases had to be
overturned at this point or this decision had
to be made. In addition, the Court has
neither a Jew nor a Roman Catholic on the
bench now. In an overwhelmingly Protes-
tant nation which does not privately support
a system of Protestant schools, it voted
against the Lyndon Baines Johnson com-
promise of federal and state funding of
teachers in primarily Roman Catholic and
Jewish schools.
Concurring Opinion
Justice Lewis F. Powell, Jr.
Powell made it plain that the prior deci-
sions could not allbe overridden. I write to
emphasize additional reasons why preced-
ents of this Court require us to invalidate
these . . . educational programs that con-
cededly have 'done so much good and little,
if any, detectable harm.' In a politically
astute statement, he first carefully com-
mended the parochial school system by cit-
ingfrom one ofthe prior decisions which had
recognized the important role of such
schools. This cleverly put the entire Court
behind his statement.
Parochial schools, quite apart from
their sectarian purpose, have provid-
ed an educational alternative for mil-
lions of young Americans; they often
afford wholesome competition with
our public schools; and insome States
they relieve substantially the tax
burden incident to the operation of
public schools. The State has, more-
over, a legitimate interest in facilitat-
ing education ofthe highest quality for
allchildren withinits boundaries, what-
ever school their parents have chosen
for them.
It did not matter that none of the state-
Austin, Texas
ments were true when they were written by
the Court or even at this time. Religious
schools hardly offer wholesome or high- .
est quality education, nor do they, as tax-
exempt entities, relieve the tax burden inci-
dent to the operation of public schools.
Going from this false base Powell then
appeals to the fears of the Roman Catholics
and the Jews as he uses phrases such as
the government surveillance required,
the active and extensive surveillance, and
government involvement in religious life,
which - presumably - religious institu-
tions do not want or would avoid at any cost.
The risk of such onerous entanglement
with government, he states, is compounded
by the risk ofpoliticaldivisiveness, continu-
ing political strife, and political disagree-
ment from taxpayers, which is apt to lead
to strife and frequently strain a political sys-
tem to the breaking point.
This should be a concern. In the case
there isno report on the cost ofthis program
either to federal taxpayers or to those in
New York City and state. After the decision,
however, the New York
Times
of July 2nd
reported: ''This year the New York City
Board of Education provided remedial serv-
ices to 300,000 students with $198 million in
Federal aid; of this, $30 million was used to
teach 25,000 students in nonpublic [reli-
gious] schools. Although this massive finan-
cialassistance has been given since 1966,no
total dollar amount isreported elsewhere by
any media. Powell himself does not even hint
at how many hundreds of millions of dollars
the cost must have totaled. His remarks are
merely philosophical. He opines that it isnot
the indirect and incidental benefit that
prior cases had approved. Rather, by di-
rectly assuming part ofthe parochial schools'
education function, the effect of the Title I
aid is'inevitably ... to subsidize and advance
the religious mission of sectarian schools.'
What an artful way to avoid analyzing the
monetary costs
Seeking a way for such aid by making it
indirect or incidental, he suggests:
Nonetheless, .the Court has never
foreclosed the possibility that some
types ofaid to parochial schools could
be valid under the Establishment
Clause. Our cases have upheld
even-
handed secular
assistance to both
parochial and public school children
in some areas. [Emphasis added -
Ed.]
E.g., Mueller v. Allen,
463 U. S.
388 (1983) (Tax deductions for edu-
cational expenses);
Board of Educa-
tion v. Allen,
392 U.S. 236 (1968) (pro-
vision of secular textbooks);
Everson
v. Board of Education,
330 U.S. 1
(1947) (reimbursements for bus fare
August, 1985
to school). I do not read the Court's
opinion as precluding these types of
indirect aid to parochial schools. In
the cases cited, the assistance pro-
grams made funds available equally to
public and nonpublic schools without
entanglement .... If,for example, Con-
gress could fashion a program ofeven-
handed financial assistance to both
public and private schools that could
be administered, without governmen-
tal supervision in the private schools,
so as to prevent the diversion of the
aid from secular purposes, we would
be presented with a different question.
As is often the case now, the Court or one
or several of its justices will thus suggest to
the religious partisans a better course of
action to obtain their ends. This, of course,
Powell did here.
. - - -: -- .
.Dissenting Opinion
Chief Justice Warren E. Burger
Burger begins his dissent with a tear-
jerker. The program at issue covers rerne-
dial reading [which], for example, reaches
children who suffer from dyslexia, a disease
known to be difficult to diagnose and treat.
Many of these children now willnot receive
the special training they need, simply be-
cause their parents desire that they attend
religiously affiliated schools. One is aston-
ished that a Chief Justice of the U. S.
Supreme Court would stoop to this kind of
emotional bilge.
He goes on to say, along with Justice
White, that the decision is contrary to the
long-range interests of the country.
It borders on paranoia to perceive the ...
Bishop of Rome lurking behind programs
that are just as vital to the nation's school-
children as [and here he lashes out at
Powell's decision] are textbooks, ... trans-
portation to and from school, ... and school
nursing services.
We have frequently recognized that
some interaction between church and state
is unavoidable, and that an attempt to elimi-
nate all contact between the two would be
both futile and undesirable. To bolster his
argument, he calls - as he loves to do -
upon the early fateful words, from the 1952
case
Zorach v. Clauson,
343 U.S. 306, of
one who would later turnout to be a liberal
curmudgeon, Justice Douglas:
The First Amendment ... does not
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NEWS AND COMMENTS
say that inevery and allrespects there
shall be a separation of Church and
State. . . . Otherwise the state and
religion would be aliens to each other
- hostile, suspicious, and even
unfriendly.
He then sums up his own attitude and
opinion:
The notion that denying these servo
ices to students inreligious schools is
a neutral act to protect us from an
Established Church has no support in
logic, experience, or history. Rather
than showing the neutrality the Court
boasts of, it exhibits nothing less than
hostility toward religion and the chilo
dren who attend church-sponsored
schools.
Dissenting Opinion
Justice Byron R.White
White has long been an enemy of the
Court's interpretation of the Establishment
Clause in the context of state aid to private
schools. He made this quite clear in his dis-
sent to the original Lemon case with its tri-
partite test. Reaching, in a continuing way,
toward the state's rights and local op-
tion premises, he again stands his ground.
... I am satisfied that what the States
have sought to do in these cases is well
within their authority and is not forbidden by
the Establishment Clause.
..--
Dissenting Opinion
Justice William H. Rehnquist
Rehnquist immediately reaffirms the rage
he felt with the Silent Prayer case of
Wal-
lace v. Jaffree
earlier in June. (See July,
1985, issue American Atheist, p. 8-9, 'The
Deceit of Silence. )
. . . the Court takes advantage of the
'Catch-22~ paradox of its own creation, ...
whereby aid must be supervised to ensure
no entanglement but the supervision itself is
held to cause entanglement. The Court ...
strikes down non-discriminatory nonsectar-
ian aid to educationally deprived chidren
Page 8
from low-income families. The Establish-
ment Clause does not prohibit such sorely
needed assistance ....
Itdoes not matter that this isnot the issue.
Free secular education isavailable to allthe
children in our nation, in neighborhood
schools. If parents are convinced by their
religion to disdain the public school system
and to send their children to private parochi-
alschools, which function for the indoctrina-
tion of the children into the tenets of the
particular religion chosen by the parents, it
is the duty of the religion and the parents
who it has convinced to give adequate edu-
cation to those children. Their choice has
been freely made.
Dissenting Opinion
Justice Sandra Day O'Connor
(with whom Justice Rehnquist joins)
O'Connor, before she begins her analysis,
invents a new term, for she sees the New
York plan of aid to the church schools as
benign cooperation between church and
state.
That the principle of direct state aid to
parochial schools which furthers the reli-
gious mission of such schools is unconstitu-
tional, she feels, is one with which she
agrees. In this case the Court has relied on
the test of such aid fostering excessive
government entanglement with religion. She
does not, however, care to speak to that
before first evaluating the Title I purpose.
The 89th Congress of the United States,
when it passed Title I in 1%5, recognized
that poor academic performance by disad-
vantaged children is a part of the cycle of
poverty. The Congress sought to break that
cycle by providing classes in remedial read-
ing, mathematics, and English to disadvan-
taged children in religious as well as public
schools, provided such instruction was not
normally provided by the nonpublic school.
The intent, she sees, was to aid needy chil-
dren regardless ofwhere they attend school.
She does not see, however, anything wrong
with the church-related schools failing or
declining to teach such subjects on their
own. Apparently the only persons con-
cerned with poor academic performance in
the church-related school must, of neces-
sity, be the state or the taxpayer, and they
must swoop to the rescue of the child even
within the walls of religious schools.
She notes that providing educational serv-
ices on parochial school premises has not
August, 1985
caused the professional educators in New
York City to inculcate religion in their classes
and that this is sufficient reason to have
them continue the exercise. The vast major-
ity of the teachers (seventy-eight percent)
visit several different schools each week and
... almost three-quarters ofthe instructors
do not share the religious affiliation of any
school they teach in. She points out that
the Court's decisions heretofore have not
barred remedial assistance to parochial
school children, but rather remedial assist-
ance on the premises of the parochial
school. The classes prohibited, she notes,
would have survived the Court's entangle-
ment scrutiny if they had been offered in a
neutral setting offthe property ofthe private
school.
She turns to an encouragement for the
church-related school partisans. Impover-
ished children who attend parochial schools
may . . . continue to benefit from Title I
programs offered off the premises of their
schools - possibly in portable classrooms
just over the edge of school property.
Results of Decision
This particular facet ofthe court case was,
of course, immediately seized upon by offi-
cials involved. The New York Times head-
lines on the day after the decision empha-
sized, Ruling Means Cities Must Work Out
How to Get Help to Parochial Pupils. In-
deed, one ofthe taxpayers who had brought
the original suit stated to the
Times,
You
could serve the children after school on pub-
lic school premises or in any public building.
You could do it weekends. And the pro-
gram supervisers said that they were study-
ing options, These include off-site services,
educational television, and mobile vans. The
key to the whole thing is to come up with a
way that the services will be equitable. A
Pittsburgh Press
editorial (in a city heavily
populated withRoman Catholics) suggested,
Because school districts will still be obli-
gated to offer remedial education to eligible
private - as well as public - school stu-
dents, they willhave to establish new - and
perhaps costlier - alternatives, such as
week-end classes in public buildings or
bookmobile-style 'classrooms on wheels.'
The ironic result could be a greater financial
burden on public education. InLos Angeles,
the Roman Catholic Archdiocese spokes-
man claimed, It isgoing to require the pub-
licschool people to come up with some sort
of imaginative solution to get around this,
like offering the instruction at a neutral site
or in a mobile unit. Of course, they willbe
more costly. Only the head of the American
Federation ofTeachers had a sensible retort,
'The doors of the public schools are always
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NEWS AND COMMENTS
open to the parents of these children to
enroll in public schools. Another spokes-
man for the same group, the Director of
Public Relations, emphasized, We want to
make itclear to parents that we stand ready
to serve them and that the public schools are
doing their job.
The reaction of Education Secretary Wil-
liam J. Bennett was typical of the Reagan
regime. Today's Supreme Court decision,
clearly reflecting a hostility toward religion,
has made it vastly more difficult to provide
education services to some of America's
neediest schoolchildren. This is terrible.
And the Roman Catholic Archdiocese of
New York, stretching the truth as usual,
called the ruling a blow to fairness and jus-
tice for poor and needy children
in public
as
wellas nonpublic schools. [Emphasis added
-Ed.]
School District of
The City of Grand Rapids v. Ball
The second decision handed down on the
same day had to do with Michigan schools.
The situation there was different. In the
school year 1976-1977 Community Educa-
tion and Shared Time programs were insti-
tuted in the nonpublic (religious) schools of
Grand Rapids, Michigan. The state ofMich-
igan requires all schools to present a core
curriculum of courses to their students for
the schools to be accredited by the state.
The subjects offered in the Shared Time
programs, intended to supplement the core
curriculum, are remedial and enrich-
ment mathematics, remedial and enrich-
ment reading, art, music, and physical
education.
Shared Time teachers, however, were
full-time employees of the public schools
who moved from classroom to classroom
during the course of the school day. The
public schools also provides all the supplies,
materials, and equipment used in connec-
tion with Shared Time instruction.
The classes offered in the Community
Education Program, at the conclusion of the
regular school day, to both children and
adults, included arts and crafts, home eco-
nomics, Spanish, gymnastics, yearbook
production, Christmas arts and crafts,
drama, newspaper, humanities, chess, mod-
el building, and nature appreciation. Com-
munity Education Teachers are part-time
public school employees, usually also em-
ployed full-time by the church-related
schools.
The Shared Time and Community Educa-
tion Programs are both available at public
schools.
A public school employee, the program
Director, sends packets of course listings to
Austin, Texas
the religious schools before the school year
begins. Their administrators then decide
what courses they want to offer. The Direc-
tor then works out an academic schedule for
each school. The physical classrooms to be
used are decided upon by the non public
school administrators.
The public school system pays the non-
public schools for the use of the necessary
classroom space byentering into leases at
the rate of $6.00 per classroom per week.
Each room used has to be free of any cru-
cifix, religious symbol, or artifact, although
such religious symbols are present in adjoin-
ing hallways, corridors, and other facilities
used in connection with the program
(teachers' rooms, libraries, lavatories). Dur-
ing the time that a given classroom is being
used in the programs, the teacher isrequired
to post the followingsign:
GRAND RAPIDSPUBLIC SCHOOLS ROOM.
THIS ROOM HAS BEEN LEASED BY THE
GRAND RAPIDSPUBLIC SCHOOL DISTRICT,
FORTHE PURPOSEOFCONDUCTING PUB-
LIC SCHoOL EDUCATIONAL PIlOGRAMS.
THE. ACTIVITY IN THIS ROOM IS CON-
TROLLED SOLELY BY THE GRAND RAPIDS
PUBLIC SCHOOL DISTRICT.
No public school student ever attended
either a Shared Time or a Community Edu-
cation class in a non public school.
Forty ofthe forty-one schools at which the
programs operate are sectarian in charac-
ter. Twenty-eight are Roman Catholic, seven
are Christian Reformed, three are Lutheran,
one is Seventh-Day Adventist, and one is
Baptist. The large majority of the students
attending religious schools belong to the
denomination that controls the school. For
instance, approximately eighty-five percent
of the students at the Roman Catholic
schools are Roman Catholic.
Six taxpayers filedsuit that the programs
violated the Establishment Clause of the
First Amendment ofthe Constitution of the
United States. The District Court agreed
and enjoined further operation of the pro-
grams. The school district appealed, but a
divided panel of the Court ofAppeals of the
Sixth Circuit affir.med the lower court deci-
sion and the U. S. Supreme Court granted
certiorari (review).
.-.-~-=-:::;
; .
Majority Opinion of The Court
written by
Justice William J. Brennan, Jr.
The lower court had fo.und that the stu-
August, 1985
dents in the religious schools were assem-
bled on the basis of religion without any
consideration of residence or school district
boundaries and that they were, therefore,
segregated by religion.Allthe schools shared
a deep religious purpose. The Roman Catho-
lic school goal was for a Catholic education
as a God oriented environment which per-
meates the total educational program, a
Christian atmosphere . . . a continuous
development of knowledge of the Catholic
.faith, its traditions, teachings, and theol-
ogy. The Christian schools proclaimed itis
not sufficient that the teachings of Christian-
ity be a separate subject in the curriculum,
but the Word of God must be an aI/-
pervading force in the educational pro-
gram.
Therefore, the lower court found that the
schools are pervasively sectarian and
. concluded without hesitation that the pur-
poses of these schools is to advance their
particular religions, and that a substantial
portion of their functions are subsumed in
the religious mission.
The U. S. Supreme Court in its decision
begins with the statement that the Estab-
lishment Clause proscribes sponsorship,
financial support, and active involvement by
the sovereign in religious activity, and
agrees that it has often grappled with the
problem of state aid to nonpublic, religious
schools. Providing for the education of
schoolchildren is surely a praiseworthy pur-
pose. But our cases have consistently rec-
ognized that even such a praiseworthy, sec-
ular purpose cannot validate government
aid to parochial schools when the aid has the
effect of promoting a single religion or reli-
gion generally or when the aid unduly entan-
gles the government in matters religious.
For just as religion throughout history has
provided spiritual comfort, guidance, and
inspiration to many, it can also serve power-
fully to divide societies and to exclude those
whose beliefs are not in accord with particu-
lar religions or sects that have from time to
time achieved dominance.
The opening leaves one breathless; has
the U. S. Supreme Court finally come to its
senses? One can only read on with
amazement.
The solution to this problem adopted by
the Framers and consistently recognized by
this Courf is jealously to guard the right of
every individual to worship according to the
dictates of conscience while requiring the
government to maintain a course of neutral-
ity among religions, and between religion
and nonreligion. [Emphasis added - Ed.]
But something isamiss, for then the court
goes on to articulate the tripartite test of
Lemon:
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NEWS AND COM MENTS
First, the statute must have a secular
legislative purpose; second, its princi-
pal or primary effect must be one that
neither advances nor inhibits religion;
finally,the statute must not foster an
excessive government entanglement
with religion.
We have particulary relied on
Lemon
in
every case involving the sensitive relation-
ship between government and religion inthe
education of our children. Why, the court
has gone daft Has itnot read its own recent
decisions? But itcontinues. Both the District
Court and Court of Appeals found that the
purpose of the Community Education and
Shared Time programs was manifestly
secular, and the Court agrees.
Both lower courts found that a substan-
tial portion of their (the schools) functions
are subsumed in the religious mission. And,
from this the court concludes that the chal-
lenged public-school programs operating in
the religious schools may impermissibly ad-
vance religion in three different ways.
First, the teachers participating in
the programs may become involved in
intentionally or inadvertently inculcat-
ing particular religious tenets or
beliefs.
Second, the programs may provide
a crucial symbolic link between gov-
ernment and religion, thereby enlist-
ing - at least in the eyes of impres-
sionable youngsters - the powers of
government to the support ofthe reli-
gious denomination operating the
school.
Third, the programs may have the
effect of directly promoting religionby
impermissibly providing a subsidy to
the primary religious mission of the
institutions affected.
One concludes that some smart -ass law
clerk has written the decision and the jus-
tices have inadvertently signed it. These are
all mays and maybes. They are not facts
discovered inthe case. But, then the suppo-
sitioning goes on. Whereas most of the
instructors in the Shared Time program are
full-time teachers hired by the public school,
virtually every Community Education
course . . . has an instructor otherwise
employed full time by the same nonpublic
school. These instructors, many ofwhom no
doubt teach in the religious schools pre-
cisely because they are adherents of the
controlling denomination and want to serve
their religious community zealously, are
expected during the regular school day to
inculcate their student with the tenets and
beliefs of their particular religious faiths. Yet
Page 10
the premise of the program is that those
instructors can put aside their religious con-
victions and engage inentirely secular Com-
munity Education instruction as soon as the
school day is over. But nothing in the case
has said that any of this occurs. This is all
speculation and, indeed, even an insult to
any professional teacher who might be thus
employed.
The Court of Appeals of course recog-
nized that respondents (the complaining
taxpayers) adduced no evidence of specific
incidents of religious indoctrination in this
case. Then in the face ofthat premise, un-
daunted, the Court goes on, But the ab-
sence of proof of specific incidents is not
dispositive. When conducting a supposedly
secular class in the pervasively sectarian
environment of a religious school, a teacher
may knowingly or unwillingly tailor the con-
tent ofa course to fitthe school's announced
goals. Here, the Court enters a Never-
Never land for every school teacher in the
world may also unknowingly or wittingly
bring her own prejudicies and predisposi-
tions into the classrooms, particularly if in
agreement with those structured into the
school milieu. But the Court continues. If
so, there is no reason to believe that this
kind of ideological influence would be de-
tected or reported by students, by their par-
ents, or by the school system itself. The
students are presumbly attending religious
schools precisely in order to receive reli-
gious instruction. After spending the bal-
ance of their school day in classes heavily
influenced by a religious perspective, they
would have little motivation or ability to dis-
cern improper ideological content that may
creep into a Shared Time or Community
Education course. Neither their parents nor
the parochial scools would have cause to
complain if the effect of the publicly sup-
ported instruction were to advance the
schools' sectarian mission. And the public
school system in itself has no incentive to
detect or report any specific incidents of
improper state-sponsored indoctrination.
Thus, the lack of evidence of specific inci-
dents of indoctrination is of little signifi-
cance. The Court, of course, would never
say in any other type of case that evidence is
of little significance, nor would it speculate
on possibilities only.
In order to focus on a primary reason for
rejecting the accommodations as unconsti-
tutional the Court delivers its final attack, its
coup de grace. Government promotes reli-
gion as effectively when it fosters a close
identification of its powers and responsibili-
ties with those of any - or all - religious
denominations as when it attempts to incul-
cate specific religious doctrines. Ifthis identi-
fication conveys a message of government
August, 1985
endorsement or disapproval of religion, a
core purpose ofthe Establishment Clause is
violated ....
It follows that an important concern of
the effects test is whether the symbolic
union of church and state effected by the
challenged governmental action is sufficient-
ly likely to be perceived by adherents of the
controlling denominations as an endorse-
ment, and by the nonadherents as a disap-
proval, of their individual religious choices ..
In the programs challenged in this case,
the religious school students spend their typ-
ical school day moving between religious-
school and 'public-school' classes. Both type
of classes take place in the same religious-
school building and both are largely com-
posed of students who are adherents of the
same denomination.
In
this environment,
the students would be unlikely to discern the
crucial difference between the religious-
school classes and the 'public-school'
classes, even if the latter were successfully
kept free of religious indoctrination.
Rather than rely on evidence adduced in
the case, the Court goes to one piece of
theoretical writing and to a lower court opin-
ion in a different case.
This pervasive [religious] atmos-
phere makes on the young student's
mind a lasting imprint that the holy
and transcendental should be central
to allfacets oflife. It increases respect
for the church as an institution to
guide one's total lifeadjustments and
undoubtedly helps stimulate interest
in religious vocations .... In short, the
parochial school's total operation
serves to fulfillboth secular and reli-
gious functions concurrently, and the
two cannot be completely separated.
Support of any part of its activity
entails some support ofthe disqualify-
ing religious function of molding the
religious personality of the young stu-
dent. Giannella, Religious Liberty,
Nonestablishment and Doctrinal De-
velopment: Part II.The Nonestablish-
ment Principle, 81 Harv. L. Rev. 513,
574
(1968).
Consequently, even the student who no-
tices the 'public school' sign temporarily
posted would have before him a powerful
symbol of state endorsement and encour-
agement of the religious beliefs taught inthe
same class at some other time during the
day.
This particular argument staggers the
mind, for it is precisely the federal Court
system which has approved disclaimer
signs on nativity scenes both on and off pub-
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NEWS AND COMMENTS
licly owned land. If such posted signs are
powerful symbols of state endorsement in
one situation, they are the same powerful
symbols in another.
The most incomprehensible reference fol-
lows. Although not used in the companion
case to the case at bar (i.e., the New York
Title I case) a Second Circuit judge's re-
marks are used in this case.
Under the City's plan public school
teachers are, so far as appearance is
concerned, a regular adjunct of the
religious school. They pace the same
halls, use classrooms in the same
building, teach the same students,
and confer with the teachers hired by
the religious school, many of them
members of religious orders [i.e.,
nuns]. The religious schools appears
to the public as a joint enterprise
staffed with some teachers paid by its
religious sponsor and others by the
public. - Judge Friendly.
The Court concludes, This effect - the
symbolic union of government and religion
in one sectarian enterprise - is an imper-
missible effect under the Establishment
Clause.
Already in a stunned condition from the
Court's reasoning, it seems impossible that
it should then turn its attack on the child
benefit theory it has so carefully nurtured
over the years. Petitioners claim that the
aid here ... flows primarily to the students,
not to the religious schools. Of course, allaid
to religious schools ultimately 'flows to' the
students, and the petitioners' argument if
accepted would validate all forms of non-
ideological aid to religious schools. The
argument is simply brushed aside.
Also brushed aside is the argument that
the courses taught merely supplement the
regular curriculum and do not supplant it.
Again, totally without supporting evidence
the Court continues its theorizing. . . .
petitioners' argument would permit the pub-
lic schools gradually to take over the entire
secular curriculum of the religious school,
for the latter could surely discontiunue exist-
ingcourses so that they might be replaced a
year or two later by a Community Education
or Shared Time course with the same con-
tent. The average religious school student,
for instance, now spends ten percent of the
school day in Share Time classes. But there
is no principled basis on which this Court
can impose a limiton the percentage of the
religious-school day that can be subsidized
by the public school. To let the genie out of
the bottle in this case would be to permit
ever-larger segments of the religious school
curriculum to be turned over to the public
Austin, Texas
school system, thus violating the cardinal
principle that the State may not in effect
become the prime supporter of the religious
school system.
Using then two prongs ofthe
Lemon
test,
the Court concludes that the challenged
programs promote religion in three ways.
(1) The state-paid instructors, influ-
enced by the pervasively sectarian
nature ofthe religious schools inwhich
they work, may subtly or overtly in-
doctrinate the students in particular
religious tenets at public expense.
(2) The symbolic union of church
and state inherent in the provision of
secular, state-provided instruction in
. the religious school buildings threat-
ens to convey a message of state sup-
port for religion to students and to the
general public.
(3) Finally, the programs in effect
subsidize the religious functions of the
parochial schools by taking over a
substantial portion of their responsi-
bility for teaching secular subjects.
For these reasons, the conclusion is
inescapable that the Community Education
and Shared Time programs have the 'pri-
mary or principal' effect of advancing reli-
gion, and therefore violate the dictates ofthe
Establishment Clause of the First Amend-
ment to the Constitution of the United
States.
Dissenting Opinion
Chief Justice Warren E_Burger
The Chief Justice concurred in part and
dissented in part.
I agree with the Court that, under our
decisions in Lemon ... the Grand Rapids
Community Education program violates the
Establishment Clause. As to the Shared
Time program, I dissent for the reasons
stated in my dissenting opinion inAguilar u.
Felton.
Dissenting Opinion
Justice Sandra Day O'Connor
Justice O'Connor concurred in part and
August, 1985
dissented in part.
She dissented from the majority opinion in
respect to the Shared Time program also for
the reasons stated in her dissenting opinion
in the
Aguilar u. Felton
case. Nothing in the
record indicates that the Shared Time in-
structors have attempted to proselytize their
students, she noted.
She turned then to the statement of the
majority that a significant portion of the
Shared Time instructors previously taught
in nonpublic schools, and many of these had
been assigned to the same nonpublic school
where they were previously employed. In
fact, she states, only thirteen Shared Times
instructors have ever been employed by any
parochial school, and onlya fraction ofthose
thirteen now work in a parochial school
where they were previously employed.
In regard to the Community Education
program, she agreed with the majority that
the progr