1. The First Amendment requires, or is now interpreted to require, that government remain neutral on religious matters.I’m sympathetic to Friedman’s argument. As a practical matter, breaking the public school monopoly would take much acrimonious wind from the sails of the evolution-versus-creation debate (as well as many other debates, like immersion-versus-bilingual-education).
2. Some religions take positions on factual matters (e.g., whether human beings evolved from earlier organisms).
3. Taking a position on a factual matter means abandoning neutrality on that matter.
4. Therefore, any public school that purports to teach facts – saying some things are true while rejecting others as false – will fail to remain neutral on matters regarded by many as religious matters.
But I fear Friedman’s argument proves too much. Public schools aren’t the only places where government has to take a position on facts; it must also do so in the courts of law. A follower of voodoo might sincerely believe that it’s possible to harm someone by thrusting needles into a doll. She might petition the authorities to prosecute her neighbor on grounds that the neighbor has been maliciously employing such a doll to cause her chronic back pain. Now, if this belief were correct, then the neighbor would be guilty of assault and battery (at a minimum). The courts, by refusing to try people on grounds like these, have taken a stand on a matter of fact, saying – at least implicitly – that voodoo-causation doesn’t really work.
By Friedman’s logic, this violates religious neutrality. We might therefore conclude that government should get out of the law enforcement business as well as the education business. Anarchists (like Friedman) might be happy with that outcome as a matter of policy; but the notion that the First Amendment rules out criminal law seems fairly absurd. I see two potential escapes from Friedman’s logic. The first is to reject the idea that the First Amendment requires religious neutrality, and thus to read the establishment clause more narrowly. The second is to adopt a definition of “religious” that’s more restrictive than “any matter on which any religion takes a position.”
2 comments:
"I see two potential escapes from Friedman’s logic. The first is to reject the idea that the First Amendment requires religious neutrality, and thus to read the establishment clause more narrowly. The second is to adopt a definition of “religious” that’s more restrictive than “any matter on which any religion takes a position.”"
Those are possiblities--but do you think either corresponds to the actual legal practice of the past century or two? Isn't that something more like "the state is not to support any position that the people currently dominant in the legal (and, in the schooling case, schooling) system oppose"?
Thus, in the 19th century, you get support for generic Protestantism--who but a Papist could disagree? When religion went out of fashion with intellectuals around the mid-20th century, you get a shift towards banning anything explicitly theist. And it will be quite a while yet before the courts notice that environmental policy consists in part of making the religious rituals of a new religion mandatory.
"[B]ut do you think either corresponds to the actual legal practice of the past century or two?"
No, but we're talking about logic, not the actual state of constitutional doctrine. I don't think there's any chance the Supreme Court will decide that public schooling is inherently counter the First Amendment, either.
However, I do think current legal practice comes somewhat close to my second escape route: adopting a narrower notion of what constitutes "religion." Religion is apparently understand as relating to the belief in or worship of some kind of supreme being or beings.
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