-Caveat Lector-
from: AMERICAN ATHEISTS
subject: AANEWS for June 14, 1999
A M E R I C A N A T H E I S T S
AANEWS
#589 ~~~~~~~~~~~~~~~~~~ 6/14/99
http://www.atheists.org
ftp.atheists.org/pub/atheists/
http://www.americanatheist.org
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A Service of AMERICAN ATHEISTS
"Leading The Way For Atheist Civil Rights
And The Separation Of State and Church"
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In This Issue...
* Supreme Court to examine aid to religious schools
* A list of pertinent legal cases
* RLPA markup tomorrow in House, Senate action soon
* The Pope and the sun: a column by Roahn Wynar
SUPREME COURT TO REVISIT GOV'T AID TO RELIGIOUS SCHOOLS
The nation's highest court decided today that it will examine whether
public funds may be used to purchase instructional materials, computer
and other items for use in religious, sectarian schools. The justices
agreed to review a 14-year old dispute from Louisiana which many legal
observers say is at the heart of the question over public aid to
parochial and other faith-based schools.
The Clinton administration applauded the court's announcement, and
hopes that part of an $15 billion educational bill, including the
spending of nearly $800 million on computer and related technology
programs, will reach religious schools. According to the U.S.
department of Education, in the 1997-98 school year more than $12
million in government funds was used for instructional and related
materials in private and sectarian schools in 34 states.
At issue is the federal Elementary and Secondary Education Act of
1965, which gives public schools money for special types of
instructional materials. Public school districts are required to
share any equipment a "secular, neutral and nonideological way" with
private and sectarian schools in the district. In Louisiana,
Jefferson Parish taxpayers sued government officials in 1985, though,
saying that the program violated the First Amendment's establish
clause ban on aid to religion.
A federal judge upheld the aid program in 1997, but last August the
Fifth U.S. Circuit Court of Appeals reversed the ruling.
The high court's decision may affect related issues including the
constitutionality of voucher programs which reimburse parents for
tuition for their children when used at private and sectarian schools.
Expected in the year 2000, the ruling could also clarifying a
bewildering set of rulings and regulations over how far government may
go -- and what sorts of resources may be paid for -- in helping
students who attend private and religious schools. In 1997, for
instance, the justices affirmed the constitutionality of allowing
public school teachers to offer remedial help at parochial schools.
That seemed to affirm a 1993 ruling that permitted school districts to
pay for sign-language interpreters for deaf students in Catholic
schools.
Reporting on today's action, AP writer Richard Carelli observed,
"Chief Justice William H. Rehnquist and Justices Antonin Scalia and
Clarence Thomas have led the movement toward greater government
accommodation of religion." Less yielding have been Justices John
Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G.
Breyer. Justices Anthony Kennedy and Sandra Day O'Connor have often
been considered "swing votes" in the high courts First Amendment
cases.
Critics of government aid to parochial and other religious schools
worry that recent high court rulings have blurred, even obliterated,
early decisions from the 1970s. Attorneys representing Catholic
school parents have argued that the Constitution "does not bar aid to
the educational function of religiously affiliated schools," and
attempt to distinguish between the strictly education activities of
the daily class routine with periods of religious instruction. A
policy of no government aid, they argue, "would require discrimination
against, not neutrality toward, religion."
Counter to this, though, are the arguments advanced by the taxpayers
in the Louisiana suit. Their attorneys insist that the
"discrimination, not neutrality" claim amounts to a '"flawed theory"
since it would permit indiscriminate and unlimited funding of
resources for religious schools -- everything from desks and textbooks
to, under President Clinton's new initiative, computers and other
high-technology programs. "If computers, why not desks, blackboards
and copies? Where would the line be drawn?"
The danger is that with the present split and coloration of the
Supreme Court regarding establishment clause issues, a majority of
justices may declare that the expenditure of government funds for
computers or other equipment, when used by religious schools, has no
direct effect on promoting religion, and thus passes constitutional
muster.
Pertinent Cases: Government Aid To Religious Schools
COCHRAN v. LOUISIANA STATE BOARD OF EDUCATION (1930) -- Justices
upheld a Louisiana law that provided for the use of state funds to
purchase textbooks for religious and public schools. Writing for the
majority, Justice Charles Evans Hughes argued that the intent of the
program was to benefit individual school children rather than religion
or religious schools. "The school children and the state alone are
the beneficiaries." By this argument, no clear benefit accrued to the
religious institutions involved.
EVERSON v. BOARD OF EDUCATION OF EWING TOWNSHIP (1947) -- This case
examined whether it was permissible for a New Jersey school district
to reimburse parents of children attending parochial schools for
transportation costs. A local resident, Arch Everson, argued that
this violated the separation of church and state. Justices voted 5-4
to uphold the practice; Justice Hugo Black, following the reasoning of
Hughes and the majority in COCHRAN, decided that the benefit of the
program was to students, not the religious schools, and compared the
program to funding of policemen or firemen who might incidentally
protect parochial school children. Ironically, Black's opinion in
EVERSON cited historical examples which, on the surface, would have
supported a finding against the New Jersey practice. These included
the fight by Thomas Jefferson and James Madison against the use of
public tax monies to support Virginia's established religion, and
quotation from the latter's "Memorial and Remonstrance" where Madison
argued that religions should not require the support of the law, and
that no person, believer or nonbeliever, should be compelled to
support a religious institution. But the EVERSON majority found that
the New Jersey program was supposedly not one that aided religion
directly.
MCCOLLUM v. BOARD OF EDUCATION, SCHOOL DISTRICT 71 (1948) -- In this
case, the justices ruled 6-1 that religious education could not take
place during the official public school day. Here, Justice Black and
the majority did find a violation of the wall of separation, where tax
monies and a publicly funded institution was used to teach religion to
students, even though students not wishing to participate were sent to
other rooms for secular study. Refusing to provide "aid (to) any or
all religious faiths or sects in the dissemination of their doctrines
and ideas does not ... manifest a governmental hostility to religion
or religious teaching."
ZORACH v. CLAUSON (1952) -- In response to the thrust of MCCOLLUM,
New York City established a disingenuous program which permitted
certain students who wished to receive religious instruction to leave
their schools during the class day and go to religious institutions
for the direct indoctrination. This was the court's second decision
regarding so-called "released time," and it found that since no
coercion was involved (i.e. students were not forced by the school to
seek religious indoctrination), and no public monies were expended,
the practice was permissible. In retrospect, ZORACH may have been the
genesis of a corrosive interpretation of the establishment clause,
since the opinion of the 6-3 majority cited the alleged desirability
of government accommodation of religion. Justice Douglas opined, "We
are a religious people whose institutions presuppose a Supreme Being."
BOARD OF EDUCATION v. ALLEN (1968) -- A New York education law
required the State of New York to provide textbooks to children in
both private/religious and public schools. This was another case
where the justices upheld the constitutionality of the government aid
program, presumably finding no benefit to the religious institutions
involved. The court found that "the Establishment Clause does not
prevent a State from extending the benefits of state laws to all
citizens without regard for religious affiliation," Justices also
opined that books were loaned to students (thus the religious school
did not technically "own" the texts or receive a direct benefit).
ROBINSON V. DICENSO, EARLEY v. DICENSO, LEMON v. KURTZMAN -- A
Pennsylvania statute provided for public payment of salaries for
teachers in parochial schools, as well as funds to purchase supplies
and textbooks. A similar situation in Rhode Island where state funds
paid for a percentage of salaries. By an 8-0 decision, the justices
found that this degree of aid constituted "excessive entanglement"
between church and state, and was thus unconstitutional. LEMON gave
us the definitive "three prong" test for evaluating First Amendment
cases. As stated by Justice Burger, "First, the statute must have a
secular legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion; finally, the
statute must not foster an excessive government entanglement with
religion."
TILTON v. RICHARDSON (1971) -- The 1963 Federal Higher Education
Facility Act provided loans for construction to religious educational
institutions, but stipulated that the funds could only be used for
non-religious facilities. The court split 5-4, upholding the
practice. Again, the majority founds that the presumed benefit was
not to religion, but to the students involved. In the earlier case of
BRADFIELD v. ROB, the court had already found that not all aid to
religious schools or activities automatically violated the
establishment clause.
COMMITTEE FOR PUBLIC EDUCATION v. NYQUIST (1973) -- In New York, the
state provided grants to private and sectarian groups to maintain
school facilities in low-income neighborhoods. This included tuition
reimbursements (a form of vouchers), or, in lieu of the vouchers, a
tax deduction -- all of which could be used toward tuition at
religious schools. Here, the justices found that the program was
unconstitutional, since it was too broad and thus had the effect of
aiding religion. The voucher reimbursements were also seen as an
incentive for parents to choose private and sectarian schools over
their public school counterparts. The court seemed to be
distinguishing between state programs that provided for specific forms
of aid, and allowing parents a wide latitude of options that could
include benefits to religion.
MEET v. PITTINGER (1975) -- This case involved several aspects of
government assistance to religious schools, including providing
remedial services for special-needs students, and instructional
materials such as laboratory equipment and projectors. The high court
permitted the state to purchase textbooks for students in such
schools, but drew the line at other equipment or special needs
instructions. The latter was seen by Justice Stewart as a more direct
form of aid and benefit to religion.
ROEMER v. MARYLAND PUBLIC WORKS BOARD (1976) -- In Maryland, state
funds were used to provide grants to private colleges and
universities, but only those which did not offer theological degrees.
Plaintiffs in this case, though, saw it as an indirect form of aid to
religion. The court upheld the Maryland practice, against with
Justice Blackmun stressing that the public money was used for purposes
of secular education.
WOLMAN v. WALTER (1977) -- The State of Ohio provided textbooks,
testing, speech and hearing diagnostic services and remedial programs
for students in religious schools. The court upheld these programs,
agreeing that they were "incapable of diversion to religious use."
Justice Blackmun and the majority found no direct aid to religion.
COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY v. REGAN (1980)
-- In a case similar to WOLMAN, New York allowed private and religious
schools to be compensated for operating their administration, and for
using state-required tests. The court permitted the program, with
Justice Byron White finding that it had a primarily secular objective.
MEULLER v. ALLEN - 1983 --Parents in Minnesota could deduct expenses
for tuition, textbook costs and transportation for their children,
including those attending religious schools. In a 5-4 decision, a
majority of justices concurred with the program, with Chief Justice
Rehnquist actually using the LEMON test to find that the result of the
program was primarily secular.
AGUILAR v. FELTON (1985) In a replay of MCCOLLUM, a New York City
practice of reimbursing the salaries of public employees who taught in
parochial schools was examined. By a 5-4 ruling, justices struck down
the program, with Justice Brennan insisting that this created
"excessive entanglement" between church and state. "In short," opined
Brennan, "the religious school, which has as a primary purpose the
advancement and preservation of a particular religion must endure the
ongoing presence of state personnel whose primary purpose is to
monitor teachers and students in an attempt to guard against the
infiltration of religious thought..."
AGOSTINI v. FELTON (1997) -- This case challenged AGUILAR v. FELTON,
and the high court ruled 5-4 that public school teachers could tutor
private school students on site. Prior to this, the public school
system required students at private and religious schools to leave
their buildings and walk outside, off the property, to trailers
provided by the city. Justices cited the earlier ZOBREST ruling which
allowed the use of special-needs instructors. This case reaffirmed
the belief of some that certain forms of state aid to sectarian
schools were permissible, did not always advance religion, and did not
automatically lead to excessive entanglement between church and state.
**
RLPA -- BACK ON CAPITOL HILL FAST TRACK?
The on-and-off sage of the Religious Liberty Protection Act is about
to enter a new act this week, as the full House Judiciary Committee
holds a scheduled markup on the measure on Tuesday. Sources on
capitol hill tell AANEWS that any scheduled amendments had to be
submitted by last Friday; it is not known if those considered "soft"
or skeptical about the proposed legislation, such as Rep. Jerrold
Naddler, will propose any formal modifications.
The RLPA requires that government adhere to a "compelling
interest/least restrictive means" test when dealing with faith-based
groups or practices. Supporters say that the measure is needed to
protect religion from an onslaught of alleged government regulations
and restrictions, everything from zoning laws that affect the
construction of churches, to other "rules of general applicability."
But critics warn that RLPA "establishes religion" by giving
preferential treatment to churches, mosques, temples and other faith
groups, and results in a dual-standard of justice. The legislation is
based on the old Religious Freedom Restoration Act (RFRA), struck down
two years ago by the U.S. Supreme Court in the historic BOERNE v.
FLORES case. That decision examined an effort by the Roman Catholic
church to demolish most of a decades-old historic structure in the
City of Boerne, Texas. When local officials refused to grant
constructions permits, arguing that the present building was under the
purview of local preservation laws, the Archdiocese of San Antonio
filed suit, citing RFRA.
Justice John Paul Stevens concurred with the majority in the 6-3
decision; whereas most of the justices emphasized the fact that
congress had exceeded its authority in enacting the Religious Freedom
Restoration Act, Stevens found that RFRA was an "establishment of
religion" and thus violated the establishment clause of the First
Amendment. He noted that RFRA gave churches and other faith-based
groups a legal instrument "which no atheist could hope to obtain."
Attempts to pass versions of the act have stalled at both ends of the
hill; RLPA bills have never made it out of the respective judiciary
committees. That could change starting tomorrow, though. One key
player is the American Civil Liberties Union, which recently switched
its position on the legislation, saying that RLPA -- as presently
composed -- would trump anti-discrimination laws, and permit
discrimination on the basis of a claimed religious belief. Expect
some committee moderates to propose amendments to the RLPA which
restore the primacy of the anti-discrimination statutes. Other
possible amendments could restrict RLPA's impact inside the criminal
justice system;a number of states, including California and Illinois,
have rejected RLPA-style legislation (so-called Religious Freedom
Restoration Acts) fearing that prison inmates would abuse the statute
to demand special privileges, and even threaten jail security.
AANEWS has also learned that over in the Senate, Republican
leadership, while not giving top priority to the Religious Liberty
Protection Act, say that they will not move to slow any progress on
the legislation. That's good news for Utah Sen. Orrin Hatch, a major
RLPA booster, who reportedly would like to have a version of the
measure out of the Senate Judiciary Committee possibly by the end of
this month.
**
POPE ADMITS EARTH REVOLVES AROUND THE SUN...
(Editor's Note: With all of the media hoopla about Pope John Paul's
recent visit to Poland, it was refreshing to see the following article
penned by Roahn Wynar, a physics graduate student and research
assistant at the University of Texas, and a columnist for the school
paper, The Daily Texan. Reprinted with permission.)
by Roahn Wynar
According to CNN reports on Tuesday, Pope John Paul II told
univofficials at Copernicus University in Torun, Poland, "The discovery
made by Copernicus, and its importance for history and science, remind
us of the ever-present tension between reason and faith." Of course,
the pope failed to mention that this so-called "tension" is due to the
fact that Faith has never once, in all of history, ever provided a
correct picture of how the world works.
John Paul II started the church down the road of reason in 1992 when
he apologized for the Vatican's error regarding Galileo's promotion of
a Copernican, i.e. heliocentric, universe. John Paul is on the right
track, and we urge him to continue his campaign of apologies to
intellectuals who were vilified and murdered with the blessings of
popes past.
Apologists approach the topic of Galileo cautiously. First they that
Galileo was a self-absorbed egoist who attacked his enemies with
ridicule, bringing unnecessary attention to himself. Also, he ignored
the work of Kepler. This is the "Galileo Was Not So Great After All"
theory. Next, they claim that, in Galileo's time, there was
insufficient evidence to support his Copernican thinking. The Vatican
was actually defending science from crackpots. This is what we call
the "Academic Review Board Theory."
Strangely, Galileo did have Catholic allies, but unfortunately twere
prone to theological notions far more bizarre than even the
Vatican's. A friar named Foscarini attempted to support the
Copernican view with a twisted scriptural argument that centered on an
elaborate lamp stand called the "seven-branched candlestick." No help
there.
In 1616 Galileo was forced to recant his Copernican views and prnever
to teach them again.
Simultaneously, apologists explain, the Catholic church did not to
heliocentrism being taught as a practical hypothesis to other
astronomers, as long as they never claimed it to be "true." What a
compromise.
Eventually, being the egoist pig-head that he was, Galileo
brokepromise
and began teaching science once again. In 1633 he was forced,
this time on his hands and knees under the threat of torture and
murder, to recant, and -- surprise, surprise -- he did. Galileo was
sent into house arrest until his death.
Well, the Church has a couple thousand heretics left to apologizbut
next in line should be philosopher Giordano Bruno. Bruno, a
devout Copernican, was the first person to speculate on the
implications of a heliocentric solar system. Without the Earth at the
center, Bruno suggested that man was a piece of a larger, mostly
unknown structure. Other worlds existed; they were possibly
inhabited, and there was no distinction between celestial and
terrestrial matter. For this he was burned at the stake on Feb. 17,
1600.
Make no mistake about it: The only reason American churches did burn
Carl Sagan at the stake was because they lacked the power to do
so. God bless America, and keep your eye on Pat Robertson.
In all fairness to the Catholic church, they have done well for last
200 years with regard to science. However, the correction of
past mistakes runs head-on into the notion of papal infallibility --
the pope's exemption from the possibility of error. As far as errors
go, geocentric theory is pretty damn big, implying that popes are
fallible. Now for the obvious question: Does this mean that the
entire edifice of Catholicism is a sham?
Not so fast, claim the apologists. No pope ever officially
suppogeocentrism ex cathedra. This means the Pope may have had the wrong
answer in his head and spoke the wrong words every now and then, but
he never spoke the wrong words while in the "discharge of the office
of pastor and doctor of all Christians, by virtue of his supreme
Apostolic authority..." and therefore no violation of papal
infallibility ever occurred. Go figure.
**
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