The Supreme Court's already difficult job of explaining itself on church-state issues is made no easier when eminent officials belittle or distort its decisions.
When the court ruled last week against three programs of public aid to sectarian education, no less a personage than the U.S. secretary of education, William Bennett, said that he found its "fastidious disdain for religion . . . hard to fathom."
But you may be sure that the majority justices do not think of their compunctions as "disdain for religion." On the contrary, one longstanding justification for the strict separation of church and state is the aim of protecting religion from abuse or dilution by political authority.
Bennett, who is trained as a lawyer, should choose his words more carefully. As he surely knows, result-oriented reactions to Supreme Court opinions can be misleading. Their essence often lies less in the result than in the reasoning that underlies it.
Bennett was not the only sinner. With less excuse, Chief Justice Warren Burger sows equal confusion in a blustery dissent charging that "under the guise of protecting Americans from the evils of an established church such as those of the 18th century and earlier times, today's decisions will deny schoolchildren desperately needed remedial teaching services." Burger further suggests that "it borders on paranoia to perceive the Archbishop of Canterbury or the Bishop of Rome lurking behind programs that are just as vital to the nation's schoolchildren as textbooks."
If, as Burger seems to believe, the establishment clause only banned "an established church such as those of the 18th century and earlier," the justices who discover more subtle difficulties in it could well be charged with wasting their time.
But the establishment clause speaks not of an established church but of "an establishment of religion." There is a big difference, and many far-from-feebleminded people have found those words somewhat less than self-interpreting. (James Madison complained bitterly that the First Congress was getting off on the wrong foot when, even as it framed the First Amendment, it proceeded to provide for paid congressional chaplains.)
In the cases before the court last week, three distinct systems of tax support of religious schools were under challenge. Grand Rapids, Mich., had for about 10 years sent public school teachers into private schools to provide "remedial" instruction in "leased" classrooms from which all religious symbols and insignia had been removed. Grand Rapids was also supporting an after-hours enrichment program taught by parochial-school faculties themselves. In the companion case, New York City was providing supplementary services under Title I of the U.S. Education Act to students (including the handicapped) in parochial schools.
No one questions the value of the programs or the value of religious education. Neither was or is under attack. Tax subsidy was.
If you read Justice William Brennan's majority opinions you may find much to question -- such as the rather hazy notion that the Grand Rapids subsidy programs promote a "symbolic" connection between church and state in the minds of impressionable schoolchildren. Such symbolism may be entirely suppositious.
It is not supposition, however, that such subsidies do foster the ultimate aim of sectarian schools, which is the advancement of religion, and do "entangle" sectarian and secular purposes and authority -- all in ways that the court has condemned in the past. As Justice Powell wisely adds, there is also a danger that the furious arguments such programs spawn will foster religious "divisiveness."
It is frivolous to find in the court's view of these difficult issues of public policy a "disdain for religion" or fear of the influence of the archbishop of Canterbury. (The chief justice was perhaps attempting wit.)
A case for subsidizing lower-grade sectarian schools might be made, since the court has not yet found that similar aid to religious colleges violates the establishment clause. The problem, however, is this: using your taxes to foster someone else's religious views and practices has been a hotly contested practice on these shores from the earliest colonial times. There are those who passionately believe that the establishment clause, applied in context, was designed to end the practice.
Given such differences, what we have is not borderline paranoia but -- at the very least -- a hard problem in constitutional interpretation.