When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for help of the civil power, 'tis a sign, I apprehend, of its being a bad one.

                           Benjamin Franklin

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April 25, 2008 - ARL Joins Challenge to Tax Dollars for Churches

Americans for Religious Liberty has joined six organizations (American Jewish Committee, Americans United for Separation of Church and State, Baptist Joint Committee for Religious Liberty, Hadassah, The Interfaith Alliance Foundation, and the Hindu American Foundation) in filing an amicus brief on April 16 urging the U.S. Sixth Circuit Court of Appeals in Cincinnati to overrule a lower federal court decision and sustain the principle that government funds may not be used for direct religious purposes.

The Eastern Michigan district court held last year in American Atheists, Inc. v. Detroit Downtown Development Authority, 503 F. Supp. 2d 845, that public funds could be used to repair places of worship.

The brief affirms:
"The lessons of history are compelling: Governmental aid to construct and maintain houses of worship degrades religion and distorts government. The Founders also recognized that freedom of conscience is a prerequisite to harmony in a pluralistic society, and that religion flourishes best where government interferes with it least. And so, the Establishment Clause’s prohibition against using public money to maintain churches was born as much out of the desire to preserve the independence and robustness of religion as it was out of the aim to protect government from religious encroachments."

Furthermore, "the Founders’ principal bulwark against religious degradation and sectarian strife was the prohibition against public funding of churches." It is incontrovertible that the "Establishment Clause’s prohibition against funding for religion safeguards religious freedom" and that the Michigan decision "is inconsistent with fundamental Establishment Clause principles and the strict legal rules that protect them." The brief notes that "the Supreme Court has forbidden provision of money for buildings even for institutions that are not pervasively sectarian if there is any risk that the facilities will ever be put to religious uses. And if government may not pay to construct buildings, the Supreme Court has reasoned, it may not pay to repair them." The brief reminds the appeals court that the "grant recipients are not just religiously affiliated but are full-fledged churches." The decision, therefore, "is thus irreconcilable with the First Amendment’s fundamental aims to ensure both that government does not become corrupted by playing favorites among religions, and that religion does not become degraded by feeding at the public trough."

The brief also argues that the lower court’s attempt to "dissect church buildings into religious and secular components is administratively unmanageable and would excessively entangle government with religion." The lower court ruled that icons or symbols could not be funded by taxpayers but that buildings and parking lots could be. "Deciding which portions of a church are religious and which are secular requires delving into the religious doctrines of each denomination to determine the theological significance of the church, synagogue, temple, or mosque’s structure as a whole, and the spiritual meanings and messages of each part."

Because churches might choose to secularize their buildings to receive public funds, the lower court ruling "is thus deleterious to the freedom of conscience that the First Amendment was intended to safeguard." In addition, "the decision creates financial incentives for religious institutions to abandon aspects of their architecture that have religious significance. When aid is available for what looks nonreligious (or more palatably religious) to a government official, the result is not just favoritism and religious discrimination, but also pressure on religious institutions to conform their buildings’ spiritual messages to those that satisfy officials’ predilections."

The brief continues, "Put simply, houses of worship are as much a symbol of particular religious doctrines as they are a venue for religious activity. Reducing a church or synagogue or mosque or temple to an agglomeration of religious and secular elements fails to recognize what makes that structure unique and uniquely religious. It is an affront to those who believe that the form of their house of worship embodies or reflects their faith, and an absurdity to those who do not."

By attempting to draw a fine line between religious symbolism and secular architecture, the district court decision "creates a de facto preference for denominations that prohibit or disfavor iconography over those that employ it." This preference could lead to favoritism or discrimination. "For the only way to subdivide religious and secular without intrusive, entangling inquiries into church doctrine would be to make uninformed, standardless determinations that what looks religious, is religious. So the approach favors, with easier access to governmental largesse, those religions that eschew iconography as idolatry (such as Judaism and Islam) or as a distraction from prayer (such as Quakerism), as well as those that favor plain, humble architecture as signifying how one should approach the divine (such as congregationalist Protestant denominations). Conversely, it disfavors faiths that assign iconography an important role (such as Catholicism and Greek Orthodoxy) and those that favor lavish decoration as a way to celebrate or commemorate the divine (such as Jainism). In preferring some faiths to others, the decision fails to heed the Founders’ concern with society’s becoming a battleground for religious denominations competing for governmental benefits."

The brief concludes, "What is at stake in this case is far more than a few dollars for re-caulking brickwork and stained glass." What is at stake is the preservation of the First Amendment, religious harmony, and the independence of religious institutions from the state.

The brief was written by Philip W. Horton, Kimberley A. Isbell, and Eric T. Rillorta of the Washington, D.C. law firm of Arnold & Porter.

ARL president Edd Doerr haled the brief as "a brilliant defense of one of the country’s most important founding principles, religious liberty through separation of church and state." Doerr also praised the brief for "representing the broad spectrum of America’s religious diversity." The brief, he added, builds on the view expressed by Justice Sandra Day O’Connor in her concurring opinion in McCreary County, Kentucky v. ACLU of Kentucky, 545 U.S. 844 (2005) at 882:

"At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. . . .Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

September 20, 2004

Americans for Religious Liberty joined with 30 other organizations in the National Coalition for Public Education in sending the following letter on September 20, 2004, to the Senate Appropriations Committee urging termination of school voucher plan for the District of Columbia. D.C. voters had rejected a similar in a 1981 referendum by a margin of 89% to 11%, and D.C.'s non-voting congressional delegate, Eleanor Holmes Norton, has opposed the plan.

The National Coalition for Public Education

Committee on Appropriations
United States Senate
Washington, D.C. 20510

Dear Senator:

The National Coalition for Public Education (NCPE) urges you to oppose the continued funding of a private school voucher program for the District of Columbia as part of the FY05 D.C. appropriations bill. This fall, the first ever federally funded voucher program is commencing in our nation¹s capital. While we wish only the best for these students, we firmly believe that the D.C. voucher program will help very few and will leave the vast majority of students behind. We strongly oppose this diversion of scarce public funds to these private and parochial schools.

Vouchers undermine accountability standards. Accountability is the cornerstone of education reforms authorized under the No Child Left Behind Act (NCLB). To send public funds to schools over which the public may exercise no oversight is inconsistent and violates the principles of NCLB. Public schools are held to strict new accountability standards, yet voucher schools do not have to adopt the academic standards, ensure that teachers are highly qualified, or administer the same assessments required of public schools.

Vouchers do not give parents real school "choice" in Washington, D.C. Private and parochial schools may discriminate against students based on their admissions policies. Indeed, they do not need to accept students with disabilities and special needs, or even low academic performance and may expel students at will. Only slightly over 1,000 students have received vouchers, which is very small compared to the current enrollment of 75,000 students in D.C. public schools. Furthermore, students are limited in their choice based on what grade they are in, with fewer choices as students get older. Additionally, there are fewer choices for students with disabilities and English Language Learners.

Vouchers divert attention away from true education reform. Privately funded voucher programs have failed to have any significant impact on the academic achievement of African American students who used them to attend private schools in the District.1 Federal education policy should focus on fully funding NCLB which currently is under-funded by $9 billion. Full funding could be used to decrease class sizes, fund up-to-date school materials, and hire new teachers. Vouchers redirect dollars away from public schools to private schools that are not accountable for student performance or for how the funds are spent.

Vouchers threaten civil rights. Finally, private schools are exempt from many civil rights laws, including the Individuals with Disabilities Education Act (IDEA) and Title IX of the Education Amendments of 1972. Additionally, where voucher funds may be used for sectarian educational purposes, a voucher program could require taxpayers to support instruction in religions that may be contrary to their own. In addition to compromising religious freedom, private school vouchers also threaten the autonomy of religious schools.

The undersigned organizations urge you to oppose any continued funding of the voucher program included within the FY05 D.C. Appropriations Bill.


American Association of School Administrators
American Association of University Women
American Civil Liberties Union
American Federation of State, County and Municipal Employees, AFL-CIO
American Federation of Teachers
Americans for Democratic Action
Americans for Religious Liberty
Americans United for Separation of Church and State
Anti-Defamation League
Association of Educational Service Agencies
Central Conference of American Rabbis
Council for Exceptional Children
General Board of Church and Society of The United Methodist Church
Hadassah, the Women¹s Zionist Organization of America
International Reading Association
Jewish Council for Public Affairs
National Alliance of Black School Educators
National Association of School Psychologists
National Association of Secondary School Principals
National Association of State Directors of Special Education
National Council of Jewish Women
National Education Association
National PTA
National Rural Education Association
National School Boards Association
People For the American Way
School Social Work Association of America
Service Employees International Union (SEIU)
Union for Reform Judaism
United Church of Christ Justice and Witness Ministries
Women of Reform Judaism

1 U.S. General Accounting Office, School Vouchers Characteristics of Privately Funded Programs, GAO-02-752 (Washington, D.C.: September 10, 2002).

The National Coalition for Public Education is comprised of more than 50 education, civic, civil rights, and religious organizations devoted to the support of public schools. Founded in 1978, NCPE opposes the funneling of public money to private and religious schools through such mechanisms as tuition tax credits and vouchers.

Americans for Religious Liberty - P.O.Box 6656 - Silver Spring, MD 20916
Telephone: 301-460-1111 - Email: arlinc@verizon.net