Considering the generous tax exemptions long enjoyed by religious institutions, the routine invocation of God at official events or even the persistence of blue laws prohibiting the sale of liquor on Sundays, it's clear that the "wall" between church and state has never been much more than a curtain. While separationists often succeed in closing it, advocates of state-sponsored religion have been slipping under it for years. So the U.S. Supreme Court's recent decision -- officially opening the curtain by upholding the constitutionality of a Cleveland voucher plan that channels tax dollars to religious schools -- was not unexpected or entirely unprecedented: In a series of cases, the Court has permitted various forms of public assistance to private, religious schools. [Wendy Kaminer, "Parochial Schools and the Court," TAP, January 17, 2000.]
I don't mean to minimize the damage that this case can cause both to religious liberty and to the integrity of religious institutions. The state aid vouchers that provide to religious schools may not be terribly different in kind from previous programs, but it promises to differ greatly in degree. Vouchers could become vehicles for unprecedented transfers of public funds from public schools to private, parochial ones. Taxpayers may be forced to provide substantial financial support to sectarian religious institutions they abhor (or consider heretical), and religious institutions may find the tenets of their faiths compromised by the government oversight that is likely to accompany government funds. The Cleveland voucher program upheld by the Court, for example, requires private schools accepting vouchers to refrain from preaching religious hatred (a provision that may be broadly construed) and from discriminating against students or teachers on the basis of religion, race or ethnicity.
Recent battles over the public funding of sectarian social-service programs illustrate the dilemma such antidiscrimination clauses pose for religious institutions seeking government support. Last year, the president's "faith-based initiative" foundered on a provision that would have exempted federally funded religious programs from federal antidiscrimination laws. Many liberals and centrists would not support legislation with this exemption; conservatives would not support legislation without it. (The administration's bill, which included a civil-rights exemption, passed the House but not the Senate, where a less controversial bill does not expressly allow federally funded religious groups to ignore federal antidiscrimination law but also does not require them to abide by it. Support for the faith-based initiative also suffered when it became clear that unpopular religions or, God forbid, "cults" would be eligible for government support. [Kaminer, "Faith-Based Favoritism," TAP, April 9, 2001.] School-voucher proposals are equally vulnerable to sectarian biases. (The battle over vouchers will now be fought in state legislatures and state courts, and it will be bitter.) If, for example, 96 percent of the voucher money in Cleveland were going to Muslim schools, instead of Catholic schools, there'd be much less support for the program.
The strife that inevitably erupts when government partners with sectarian groups shows how separating church and state helps maintain religious tolerance. As Justice David Souter observed in his dissent in Zelman v. Simmons-Harris, "Religious teaching at taxpayer expense simply cannot be cordoned from taxpayer politics."
The reverse may also be true: Taxpayer politics, and policies, aren't easily cordoned off from religious teachings. Consider the intrusion of sectarian religious beliefs into the administration of reproductive health care. People with religious objections to abortion should, of course, oppose it vigorously. But in a secular society, sectarian notions of sexual and procreative morality should not limit the availability of reproductive services. In our society, however, they do: According to the National Abortion and Reproductive Rights Action League, of the 19 states that require health insurers to provide contraceptive coverage, 14 offer an exemption to employers and insurers who raise religious or moral objections to contraception.
It's important to understand what laws such as these do not protect: the religious liberty of individual health-care workers. Narrowly drawn clauses that apply to individuals, or to religious institutions that don't provide secular services to a general population, balance the religious rights of refuseniks with the reproductive rights of patients. (Some would argue that people who harbor religious objections to particular medical procedures should not seek jobs as health-care providers, just as people who object to the death penalty should not seek work on death row.) But broad refusal laws applying to institutions or insurers serving the general public have a very different effect than those applying to individuals or private religious groups with no significant secular functions: Such laws restrict the rights of individual practitioners who wish to provide reproductive services, despite the opposition of employers or insurers, as well as the rights of patients.
Refusal clauses pose a mounting threat to reproductive-health care, especially as nonsectarian hospitals merge with Catholic hospitals, significantly reducing the availability of reproductive services. And interest in broad refusal clauses is on the rise: Like fetal protection bills or legally mandated waiting periods for women seeking abortions, refusal clauses diminish reproductive rights without directly attacking them. One congressional proposal would exempt many federally funded health-care facilities from federal, state and local laws requiring the provision of reproductive-health services and referrals. Soon, taxpayers who are forced to support sectarian schools may also find themselves at the mercy of a publicly funded sectarian health-care system. The shield of religious liberty is being transformed into a sword of religious power.