In legal circles these days, there is much talk about tensions between the Establishment and Free Speech Clauses of the First Amendment.
In legal circles these days, there is much talk about tensions between the Establishment and Free Speech Clauses of the First Amendment. If a public school allows the Dungeons and Dragons club to distribute flyers at recess, can it bar the Bible Club? If a college allots public funds to clubs for publication of newsletters, can it withhold those funds from religious organizations without violating their expressive freedoms? Conversely, would paying for the printing of the newsletter constitute government endorsement of religion?
I would suggest that the reason these issues are so difficult is not because of contradictions within the First Amendment, perceived or real, but because they directly implicate a fundamental concern of our legal system and indeed, our very understanding of what it means to be an American: our belief in equal treatment under the law. The concept of the “level playing field” is central to our notions of legal fair play.
If legal equality means anything, it means that laws must treat similarly situated people similarly. But how do we decide who is “similarly” situated? If the government is offering immunization to eight-year-olds by sending nurses to public school classrooms, is the relevant classification all eight-year-olds, whether in public or parochial schools? Or is the classification eight-year-old public school students? Does dispensing a secular benefit through parochial schools amount to support for religion in violation of the Establishment Clause? Or does refusing to do so burden the free exercise rights of parents who opt to give their children a religious education, by making them pay for something that others get for free?
Most of us, I hope, would find the immunization of parochial school children constitutionally appropriate. Funding the college newsletter may be a closer case, but withholding support from religious organizations when all others receive it doesn’t seem fair, either.
If we struggle with these conflicts, how will we resolve the more difficult cases that are sure to come, as government does more and more of the public’s business through intermediaries that were previously private?
One example of these new challenges can be found in the context of “Charitable Choice” and President Bush’s “Faith-Based” Initiative. In 1996, then-Senator Ashcroft sponsored the first Charitable Choice legislation as part of welfare reform. Similar provisions have since been added to other social welfare measures. The stated goal was surely unexceptional: to guarantee a level playing field, to ensure that religious organizations offering social services could compete for government contracts on the same basis as secular organizations. However, whether a field is being leveled or tilted is often in the eye of the beholder. A couple of examples:
· If a government agency’s Request for Proposals requires that bidders provide services through credentialed personnel—licensed social workers, or certified drug counselors—is that provision unfair to Faith Based Organizations (FBOs) who offer pastoral counseling instead? Or would exempting FBOs from credentialing requirements be unfair to secular bidders?
· If FBOs are exempted from the nondiscrimination rules that otherwise accompany public funds, is that exemption a fair recognition of their right to maintain their religious integrity? Or is it an extension of “special rights” to religious organizations?
Separation of Church and State is much easier to maintain when there is separation of public from private. As we continue to blur the line between government and the private sector, keeping the playing field level will require some sort of public consensus on the nature of equal treatment. Right now, that consensus eludes us. For now, as the old saying goes, where we stand depends a whole lot on where we sit.
Sheila Suess Kennedy, JD, teaches Law and Public Policy at the School of Public and Environmental Affairs at Indiana University Purdue University Indianapolis.