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Needed, a Church-State Accommodation

Seymour Siegel (Sh'ma 8/160, October 13, 1978)

Leo Pfeffer must be talking to the wrong people. Where I circulate, the issue of state support for religious schools is very much alive. A few weeks ago, I chaired a conference of Jewish community leaders, representing the whole gamut of Jewish affiliation. The Conference dealt with the problems of the Jewish community. Everyone who spoke about education stressed the need for state support of yeshivot and day schools. The other day I attended a reception at Gracie Mansion arranged by Mayor Koch. He expressed his support for some state aid for parochial schools. In New York State, both gubernatorial candidates have promised to promote aid to religiously-oriented schools. Most of the local candidates representing districts with heavy Jewish registration (with the exception of the "wild" West Side) are proponents of tax credits for school tuition in private schools.

The change in the opinion of a good part of the Jewish public on the issue is not hard to account for. More Jews are sending more of their children to non-public schools. Half of the children receiving any kind of Jewish education in New York City, attend yeshivot or day schools. The only Jewish schools that are growing in population are all-day schools. This is true now not only in Orthodox communities - but also in the Conservative movement. The Reform movement, too, is now seriously considering the day school alternative. The Jews who have to support these schools and know from first hand the heavy financial burden that must be borne in order to maintain them - are tired of the doctrinaire attitudes that have heretofore characterized establishment opinion. Those who have to pay the piper know how much he charges. The public schools, too, have lost their mystique. One rarely finds the pious invocation of the common school as the crucible of democracy. Though there are, of course, excellent public schools. However the average Jew perceives them as being deficient in education; valueless in orientation; and dangerous for the moral health of their children.

Private School Aid is Good For America

The Jews I speak with do not think that the spokesmen who fight tooth and nail against any relief for parochial school parents are fighting for religious freedom. They are perceived (with justification) as fighting against the best interests of the Jewish community. This does not mean that they are anti-day school or insincere. It means that they are mistaken.

In one of the first issues of Sh'ma I explained why I thought that what heretofore had been the almost unanimous viewpoint of the spokesmen for Judaism in the church-state issue was wrong. It was (and is) my view that relief for parents of private schools is necessary for the good of the Jewish community and for the good of America.

The main argument against state aid has been based on two arguments. It is against the Constitution and it is against the best interests of the public schools.

The constitutional question has been addressed by the Supreme Court many times. Yet the issue, as Leo Pfeffer admits, is far from settled. The Moynihan-Packwood Bill allows for tax credits. This form of indirect aid instead of direct payments might stand the constitutional test. There is still another interesting facet of this issue. Michael J. Malbin of the American Enterprise Institute recently published a small book entitled Religion and Politics - The Intentions of the Authors of the First Amendment. Analyzing the debates at the First Congress, Malbin concludes that "Congress did not mean that the establishment clause to require strict neutrality between religion and irreligion ... Federal aid to private schools would thus have been allowed under the original meaning of the establishment clause." The Founders did not want to favor any one religion. They were not against helping all religions equally. Of course, it could be argued that whatever the intention of the Founders it is not that relevant, since it is the contemporary Court which decides the import of the Constitution. Still Malbin's point is of great interest. The Constitution allows chaplains, aid to the Federation of Jewish Philanthropies and a host of other measures. The wall of separation between church and state is more like a hedge. If you need to cross it, it isn't too difficult to do so.

Day Schools Are Vital For Jewish Survival

In addition to the constitutional question, it is now clear that the public schools need a strong competing system to spur improvement and economies in their work. We do not help the common school by impoverishing and thus weakening the private schools. All institutions which provide the community with the public service of educating children ought to be helped, whether they are under public or private auspices.

Most important of all, the future of the day schools and yesbivot is vital to the creative survival of the Jewish community in America. Anything that serves to weaken this system by denying hard-pressed parents any tax relief ought to be fought vigorously by the organized Jewish community. Most of the Jews I know are angry that a good deal of Jewish money is being spent to fight against support for yeshivot rather than struggling for support. The lack of discussion which Leo Pfeffer discerns may signal a calm before the storm. The least thing that we can expect a Jewish organization to do is to avoid harming Jewish interests.

Even the "victory" of abolishing any semblance of religious observance in the public schools seems to many (including this writer) to be a Pyrrhic one. Instead of fighting for the elimination of religious symbols and teachings in the public schools, we ought to have been fighting for "equal time" for Jewish symbols. The greatest issue facing the public schools is the growing perception in the minds of many that in many instances they are the breeding grounds of attitudes and values which are inimical to the basic concepts of the Judeo-Christian outlook: discipline, family, and the recognition of legitimate authority. While the elimination of Bible readings and other religious exercises may not be the sole cause for the existence of a "value desert" in our public institutions, it is plausible to believe that it has something to do with it.

Our Nation Needs Strong Religious Values

In regard to the abortion issue, it is not correct to say that only Orthodox Jews are involved in the pro-life movement. There are two prominent Conservative rabbis on the Board of Directors of the American Citizens Concerned for Life; and a prominent Conservative layman led the fight in Akron, Ohio to require prospective mothers contemplating abortion to be fully instructed as to the moral and medical issues involved. The Hyde amendment, to be sure, is supported by many Orthodox Jews - but as previous issues of this journal have shown, other Jews have an interest in somehow diminishing the number of abortions performed in the United States (and, incidentally, in Israel). Fighting the Hyde Amendment on grounds that it serves to "establish" a religion seems to a non-lawyer to be ludicrous. One might challenge all of the criminal statutes on that ground, since all religions forbid crime. The fact that some people are against abortions on religious grounds does not mean that the state is prevented from expressing an opinion on the issue. If we use Pfeffer's reasoning, we might rule that opposition to the Hyde Amendment is unconstitutional since it is supported (that is, the opposition) by the Religious Coalition for Abortion Rights.

In sum, the fight for "separation' of church and state may have been a good and just one in past decades. New realities and plain common sense should now move us to allow the government to do what the original framers of the Constitution intended: to found a commonwealth based on religious foundations, without favoring any one particular sect or faith-community.