August 22, 2002
Fairness and Forced Taxpayer Support of Religion
-- Frank L. Pasquale
Debate about school voucher systems and other tax-based support for religious institutions understandably invokes discussion of fairness and justice: for low-income parents and their children, for sectarian school parents and their children, and for the taxpayers who may be asked to fund them. Setting aside questions of the social or educational wisdom of such programs, I would like to suggest a mechanism for ensuring a greater measure of fairness and justice for all parties.
The Supreme Court has now ruled in favor of tax-based voucher systems. This decision rests, in part, upon the majority's argument that by placing the decision to use tax-based grants in the hands of private individuals under no (explicit) compulsion to choose religious schools for their children, government is absolved of any direct preferential support for religion. This decision, however, applies to a context in which such preferential support is inevitable.
There is little question that funds drawn from general taxation for school vouchers will inevitably, primarily and unequally benefit religious institutions. In the case of the Ohio Pilot Scholarship Program, the program now affirmed by the Court's 5-4 decision in Zelman v. Simmons-Harris, qualifying low-income parents receive up to $2,250 to help defray school tuition. They may choose among fifty-six currently participating private schools, of which forty-six are religious. Of the roughly four thousand families given vouchers, some ninety-six percent had chosen religious schools as of February 2, 2002 (Associated Press).
Such outcomes are inevitable since the vast majority of choices available to low-income parents are, and will be in most locations, private schools, of which seventy-eight percent are religious, with thirty-eight percent of these Roman Catholic (Department of Education, 1998). The numbers will be skewed even more toward religious schools in our inner cities. Lower tuition will favor religious over other private schools. And the theoretical presence of alternative public (e.g., suburban or magnet) school options to support an argument of "government neutrality" will have only a negligible effect on the numbers due to issues of space availability, distance, transportation and community unfamiliarity.
Of course, taxation is rarely, if ever, completely fair. Each of us contributes taxes to secular entities and services we do not personally support or directly use. Those without children still pay for public education. This is understood and accepted, if sometimes grudgingly. But forcing citizens, through their taxes, to support schools whose function is, in part, religious inculcation is a very different matter.
The Supreme Court's shift to a so-called "equal treatment" stance with regard to religion, in the context of school vouchers, takes us back to the American Colonies where citizens were repeatedly compelled to provide support, by law, for religious sects to which they did not belong. It was practices such as this which produced considerable conflict over the acceptability of such compulsion. This conflict supplied grist for James Madison's Memorial and Remonstrance and, ultimately, the First Amendment's religion clauses.
Whatever interpretations may be divined from the First Amendment's religion clauses, allowance of general tax support for religious institutions engaged in sectarian promotion can hardly be considered proper or just, nonpreferentialist Supreme Court Justices or "equal treatment" arguments notwithstanding.
There is, however, another way to fund voucher experiments so that forced support of religious instruction is avoided -- voluntary "tax" contributions, already employed in some states. The mechanism is not unlike the question on a federal tax return that asks whether a taxpayer wishes to devote tax dollars to the Presidential Election Campaign Fund. Only in this case, dollars are added to taxes or subtracted from tax refunds in an amount specified by the taxpayer for designated purposes. In this way, funds could be made available for experimental school voucher programs without violating the principle that no one should be forced by their government to support religion(s) against their will.
Whether at state or federal levels, government is hardly the most efficient system through which to channel such funds. There is much to be said for "cutting out the middle-man" and returning to direct voluntary support of religion. Further, from a strict separationist standpoint, even if government is in this scheme a mere "pass-through" for voluntary contributions, its role in channeling funds to religious institutions may still be objectionable. But if the alternative is coercion of citizens to fund inevitable and preferential support of institutions engaged in religious promotion, such an approach seems justified. There are many good reasons not to use (or overuse) such a mechanism, but if it is the only alternative to an inevitable injustice, it would seem only fair.
Frank L. Pasquale, Ph.D., is a cultural anthropologist doing research and writing on religion, morality, culture, and the relationship between "church and state." He welcomes feedback at email@example.com