The Thing About The Law

 

From Everson v School Board, United States Supreme Court, 1947

Mr. Justice JACKSON, dissenting.

. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, 'whispering 'I will ne'er consent,'- consented.'

Great Boar's Head--O. Youngblood

Mad Dog, not being a lawyer, thought  the idea of the town of Hampton writing a check to a religious institution, namely  Sacred Heart School, was so absurd he could hardly find words to express his incredulity.

But he recently received a phone call from Gene Policinski of the Freedom Forum Institute, a group connected to the now defunct Newseum, which advocates for First Amendment Rights which led him to a new understanding of how obvious truths can fail to persuade.

Mr. Policinski pointed out that every analysis must begin with the facts and Mad Dog had to admit he was not sure he had ALL the facts.  Mad Dog did have the letter written from the principal of Sacred Heart to the citizens of Hampton and Seabrook which stated:

These funds are applied towards non-religious textbooks, school supplies, technology, testing materials and school nurse services and supplies for our SHS students that reside in Hampton.

Mr. Policinski said that there is some case law which allows for public funds to be given over to religious institutions if those institutions are doing social work which is not religious in nature: e.g. some churches run programs for ex convicts trying to re enter society, or soup kitchens to distribute food to the needy. "Government cannot do everything," Mr. Policinski noted and when the churches provide such non denominational services local governments have been allowed to compensate them.

Of course, Mad Dog replied, the uses of these funds as the principal outlined are simply to cover operating expenses of the school, and every religious school has ordinary expenses like heating the school, cleaning it, janitorial services but covering these operating expenses is simply no different than asking villagers to support the monastery or the abbot, i.e. it is state support of an established religion.

Justice Robert Jackson

Justice Jackson addresses this point directly:

I should be surprised if any Catholic would deny that the parochial school is a vital, if not the most vital, part of the Roman Catholic Church. If put to the choice, that venerable institution, I should expect, would forego its whole service for mature persons before it would give up education of the young, and it would be a wise choice. Its growth and cohesion, discipline and loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself.

It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church and it can no more tax its citizens to furnish free carriage to those who attend a Church The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or reimbursement of expense to individuals for receiving religious instruction and indoctrination.

Note well: Justice Jackson is not saying that the only prohibition of state funding for religious schools is a prohibition of funding religious instruction. He is saying when the core purpose of a school is to inculcate religious values and teaching, it does not matter whether the school also teaches math and good citizenship, it is fundamentally a part of the church and whatever social value it has unrelated to its religious mission is irrelevant. A school can be many things, but a Catholic school is simply one organ in a religious organism.

The principal of Sacred Heart School says the money helps fund technology, presumably computer technology and testing materials, expenses religious and non religious schools share. So she is admitting the town is funding general operating expenses of her religious institution.

So it is clear, despite Mr. Policinski's admonition this area of state support for church functions is highly controversial, with wise people on both sides, the fundamental arguments have been in place since the 1947 case Everson v School Board.  Justice Jackson was writing in dissent; the Court found that in the case of a New Jersey town providing bus service to deliver Catholic students to a Catholic school, this was permissible because the town offered to pay for transportation to all students to any school in town. But in Hampton's case, the funds are directed specifically to the Sacred Heart School.

Some have argued that the state of New Hampshire requires a school nurse in every school and that the use of the funds for a school nurse is simply the town providing funds for something every student in Hampton, whether in Church school or public school deserves. But the school principal admits the funds are used for more than the nurse and in any case, it's clear if you run a Catholic school, you have to provide for the safety and comfort of the students--heat, clean classrooms, materials--and you are asking the town to reimburse you for a necessity of school life in this case.

Reading the opinions of the Supreme Court in this case, Mad Dog is reminded that in law, even the most obvious assertions are argued over, presumably because this is what judges and lawyers love to do. So in the Everson case many paragraphs were spent on the argument that the tax supporting the school buses for Catholic schools was an illegal seizure of property of the non Catholic taxpayer to be used for a purpose for which he did not approve, which of course is ridiculous as the justices finally noted, because that would prevent any government from doing anything if a single taxpayer objected.

So where does this leave us?

There is no doubt the Hampton law is unconstitutional. The current Supreme Court with six of nine justices Catholic, may not see it this way, but the case should be brought. Citizens should be seen arguing in the library, the hardware store, on street corners about this because it is a matter of whether or not we believe in the Bill of Rights in Hampton.