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When Americans turn their attention to education and, specifically,
educational standards and policies, most people don’t think of the
federal judiciary as having much to do with it. They believe lawmakers,
presidents and local school boards decide education policy and, to some
extent, they do.

But when the education issue melds with religion, the federal
judiciary indeed takes over. I have no problem with courts deciding
legal matters and matters pertaining to constitutional issues, but I
wholeheartedly reject the federal judiciary’s interpretation (or rather,
misinterpretation) of the “separation of church and state”
(Establishment Clause) doctrine envisioned by our Founders in order to
guarantee secular (read cynical humanist) education for the bulk
of American children. I don’t know if it is a purposeful attempt by
federal jurists to obliterate all references to a higher morality or if
it is simple ignorance but it really doesn’t matter because the effects
are the same.

So pervasive is this misinterpretation of the Establishment Clause
that even school-aged kids — who supposedly are taught about the
Constitution — are misapplying it. A friend of mine recently told me
that his daughter’s English teacher was chastised by a high school
student for trying to teach kids which religious terms, titles and
phrases were supposed to be capitalized in a sentence.

“Hey, you’re not supposed to be teaching us religion,” the kid
said.

Somebody ought to be slapped around for this, but one thing is
certain: It isn’t the fault of our children. Between the courts, the
agnostic establishment press — who eagerly report the federal
judiciary’s interpretation of the separation of church and state as fact
– and even some parents, it is difficult to pinpoint who is most to
blame.

The most recent example of this misinterpretation came from a federal
judge in Ohio. On Monday, U.S. District Judge Solomon Oliver Jr.
“threw out the state’s taxpayer-funded school voucher program … for
violating the constitutional separation of church and state,”
according
to Reuters. (Ironic that the judge is named, “Solomon,” isn’t it?)

This strict separationist point of view is just plain wrong — maybe
even as wrong as those who believe the Establishment Clause of the
Constitution gives states and localities carte blanche to fund religious
entities. I’ll explain that as best I can.

What is known from our history is that the idea to publicly fund
religion — churches specifically — began early on, in the 1790s. Those
who interpret a strict separation between church and state pay
particular attention to a series of events that took place in the
Virginia legislature shortly after the American Revolution. A bill was
introduced by none other than Patrick Henry that would have required
the government to collect a tax from citizens to be given to local
churches. Although the taxpayer could decide which church was to
receive the “donation,” the tax was to be required by law.

Henry believed that the long-term survivability of the nation
depended upon the survival of its Christian-based morality. He didn’t
necessarily oppose the official Church of England model and his were the
best of intentions, but clearly such a burden would have to be forced
upon citizens in order to gain compliance, as taxes usually are.

This was simply too much for Thomas Jefferson and James Madison. In
fact, it prompted Madison — who soon became president — to pen a
multi-point argument against the proposed legislation, his famed
Memorial and Remonstrance. The writing was
said to have such an effect on the citizens as well as the lawmakers
that the bill to establish a “religious tax” was voted down the
following year.

Given this history, it seems logical to conclude that the prevailing
thought from the earliest days of the republic was that public funding
– via taxes — to churches, at least, was discouraged, even
though many lawmakers of the time saw an advantage in “mandating”
morality, so to speak. But historically speaking, there was no public
funding of public schools either. Even as late as the late 19th
century, parents and local residents themselves paid to build and
supply public schools.
Can
you imagine a federal judge in 1880 telling a community they could not
build a public school they could never pray in?

While the Founders’ opinions on the separation of Church and State
may have often been ambiguous, confusing or misleading, it is obvious
that there is a double standard being applied by the courts in regards
to religion and education.

For instance, how can any federal judge prohibit a local
school from allowing even a “moment of silence” — that some kids may
use for prayer — when the First Amendment clearly states that the
federal government cannot prohibit the free exercise of religion?

How can the Establishment Clause be used to prohibit public funding
of private religious schools if more than one religion is
represented? If such a law were applied to all denominations,
there is no “official recognition” of one “state-sponsored” religion;
there can’t be.

Furthermore, how can the courts not ban public funding of
public schools when pseudo-religions like earth worship and
Buddhism are either taught or encouraged? When homosexuality is taught
and encouraged (which offends believers of many faiths)?

At the very least, in order to accommodate all Americans –
believers and agnostics alike — why is it still not feasible to provide
tax relief to parents who don’t want to be a part of the public
school system and instead choose to send their kids to a private school,
religious or otherwise? How can not making someone pay for
public education if they choose not to, be construed as somehow
violating the separation of church and state clause? Because they’re
Christians?

That’s a lame and inappropriate application of the Establishment
Clause. Using that line of thinking, it can’t be long before federal
judges begin penalizing public school districts for even allowing anyone
professing to be a Christian into the facilities. Surely the
federal judiciary doesn’t believe that every public school
student is agnostic or secularized.

In Federalist No. 78, Alexander Hamilton wrote this stunning
prophecy: “For I agree, that ‘there is no liberty, if the power of
judging be not separated from the legislative and executive powers.’ And
it proves, in the last place, that as liberty can have nothing to fear
from the judiciary alone, but would have every thing to fear from its
union with either of the other departments. …”

Having federal judges continually rule against any religious
support or expression in public education not only proves Hamilton’s
point, but it violates at least the spirit of intent offered by
the Founders of this country. And, as it happens, it violates the First
Amendment — to completely prohibit any religious expression, even in
the form of voluntary financial support, is supposed to be against the
law.

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