American Atheist Magazine Aug 1985

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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.

American Atheist Membersip Categories

Life

50b

Sustaining $100/year

Couple/Family $50/year

Individual $40/year

Senior Citizen */Unemployed $20/year

Student* ' $12/year

*Photocopy of 10 required -

Allmembership categories receive our,monthly Insider's Newsletter, membership card(s), a subscription to

American Atheist magazine for the duration ofthe membership period, plus additional organizational mailings,

i.e.,new products for sale, convention andineeting announcements, etc.

American Atheists - P.O. Box 2117 -Austin, TX 78768-2117


3/44

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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Please notify us six weeks inadvance to ensure uninterrupted delivery. Send us both your old and new addresses. Ifpossible, attach old

label from a recent magazine in the bottom space provided.

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Mail to - American Atheists, P.O. Box 2117, Austin, TX 78768-2117

Austin, Texas

August, 1985

Page 1


4/44

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


5/44

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)

Page 3


6/44

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

about library rates.

Help is needed. Most often American

Atheists finds that if someone will go to a

library and either inform

or

request, the

information that such

a

magazine

is

avail-

able and that

a

library client requests it

are

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American Atheist


7/44

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

PageS


8/44

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

American Atheist


9/44

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

Page 7


10/44

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

American Atheist


11/44

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:

Page 9


12/44

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-

American Atheist


13/44

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

Documents

American Atheist Magazine Aug 1985