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Rabbi Shmuly Yanklowitz Headshot

Religion and State: School Vouchers and Clergy Parsonage

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For a number of years now, I have been privileged to attend the White House Chanukah party in the presence the President. Each year, I am so deeply inspired that I live in a country that strongly supports religious commitment while protecting the rights of religious minorities from any possible religious coercion. History has shown repeatedly that nations with an established religion often abuse that combined power by oppressing those with minority views. We must be constantly vigilant to ensure this necessary and proper separation.

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Religion and State

We all wish to live in a moral society, but how do we balance our spiritual and political systems? Judaism was not meant to be a relic of the ghetto: Torah was intended to permeate the hearts and souls of its students and to impact society. The Jewish religion, however, was not intended to place a coercive imposition on society. From a perspective of self-interest, minority groups want to be protected and insulated from the impositions of majority religious practice. However, from a collective interest, not minority interest, it is fair for democracies to reflect majority values (whether they are of religious or secular origin) and have those values integrated into society.

The 14th century Ran, Rabbeinu Nissim, in his famous 11th homily, endorsed a separation between religion and state. Ran suggested that the Torah embraces two different levels of justice. First, the beit din (Jewish court) is to uphold the Torah's laws. The "king," on the other hand (secular leadership), is to maintain a higher-level order, and in many ways operates outside of Jewish law. The balance between religious duty and normative secular practice is thus kept in a state of balance.

The religion and state relationship in America grew out of the situation in Europe (and specifically the religious politics of Stuart England) at the time the English colonies were founded. On the continent, the wars of the Reformation only ended with the conclusion of the Thirty Years' War in 1648. In England, after securing permanent Protestant rule, the Puritans waged a civil war against King Charles I and his monarchist followers. The Puritans won, Cromwell became protector of the realm and, in 1649, Charles I was beheaded. They sought unsuccessfully to abolish the monarchy and only rule through Parliament, but in 1660 the monarchy was restored under Charles II.

At this time, most American colonies were sectarian, either supporting the Puritan (Congregational) or Church of England as their established churches, supported by colonial funding. The Congregational Church opposed the religious (and political) authority of the King, preferring to have each "congregation" rule itself. In the South, the Church of England was the established church. In the Church of England, from the time of is inception under Henry VIII to the present, the monarch is considered the "Supreme Governor of the Church of England," and appoints many of the leaders of the clergy (some of whom sit in the House of Lords). Each colony had some form of intolerance towards most other sects, especially Catholics; Massachusetts went so far as to hang a number of Quaker missionaries.

However, most of the middle Atlantic colonies (as well as Rhode Island) did not have an established church. Pennsylvania was founded by William Penn, a Quaker and a firm believer in religious toleration and the notion that one promoted religious values through moral example. Pennsylvania was a haven for persecuted Protestant sects as well as for a small population of Jews, indeed even Catholics. New York, a former Dutch colony, had from its beginnings a diverse population (this despite Peter Stuyvesant's attempts to banish Jews from the city). For example, a 1771 map of New York City showed religious houses of worship for 11 different sects, including a synagogue. Diversity was directing America away from having an established church.

Eventually, opposition emerged even within colonies that had established churches. One of the first, and most famous, disputes was the "Parson's Cause," involving Virginia clergy of the Church of England, who were supported by the colony. When the British decided to increase the pay of Virginia parsons, Reverend James Maury sued to claim back pay. In response, Patrick Henry defended a Virginia parish against the reverend's claim in 1763, and in spite of having no legal case, he persuaded the jury to award only one penny to the parson. By challenging the established clergy, therefore the authority of the King, Patrick laid the groundwork for the American Revolution and ultimately the disestablishment of any official sectarian persuasion in the United States.

The early American republic rejected entirely established state religions and codified freedom of religious exercise through the First Amendment of the Constitution. In one of the most compelling cases of American respect towards spiritual liberty, George Washington's letter to the Jewish of Newport, RI affirmed that the newly formed nation not only tolerates minority religious views, it cherishes them. Following Washington's extraordinary epistle, in January 1802, President Thomas Jefferson sent his own. In a view that paralleled that of Rabbeinu Nissim, Jefferson's letter to the Danbury Baptists concerning the role of religion in society set the tone for all future discussions about the subject. Citing the First Amendment, Jefferson wrote that this Amendment created "a wall of separation between Church and State." This phrase has entered into the American social consciousness, becoming a highly charged topic of debate. Philosophers, students, academics, politicians and jurists have wrapped their heads around the manifold meanings of this simple phrase. In 1947, for example the Supreme Court of the United States unanimously confirmed the separation of church and state, in Everson v. Board of Education, and cited Jefferson's letter in the court opinion. "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" Justice Hugo Black continued by writing, "That wall must be high and impregnable." The precedent set forth in this decision became known as the Everson Standard and has been the basis for most Supreme Court decisions regarding church and state.

Since our nation's founding, there have been countless efforts to enforce certain religious beliefs, often resulting in contentious ideological battles. Many practices, such as requiring the Ten Commandments be placed up in courthouses or requiring the teaching of "intelligent design" as part of a science curriculum in public schools often push people further from religion rather than bringing them closer, especially when it is perceived to be a coercive step by a particular denomination. As a Jew, I wouldn't want my children to be expected to sing Christmas carols about Jesus in their schools or to be at a school where they recite the "Lord's prayer." I, of course, support the rights of religious institutions (including private religious schools) to engage these practices but definitely not in our public school system.

There are some who argue from an "accommodationist" view, that religion should be allowed in public venues as long as it does not place undue pressure on others. This seems fair, but the difficulty with this view is that judges may be very naïve about pressure, viewing laws and policies without reading between the lines. In the case of the Ten Commandments, for example, do you think that a lawyer who challenged this proposal would get a fair shake from the judge who proposed it at the next trial? Similarly, is there anyone who can legitimately argue that the seven states that passed laws banning Sharia law were only seeking to guarantee our civil liberties, and that this was not a thinly disguised act of bigotry against American Muslims? For an historical example, could anyone today argue that racially "separate but equal" facilities existed for whites and blacks in the South in the first half of the 20th century? American courts upheld this patently false idea until 1954 (and sadly, some would still like to use this reasoning used against out LGBT communities). It becomes more apparent that we should not pursue an "accommodationist" idea that in the past has resulted in disastrous legal difficulties.

Theology is too complicated to slap into universalistic songs, slogans and plaques. Religious ideas win authentically through persuasion, not coercive legislation. We must protect minorities not only because we value freedom (of and from religion, aka the Berlinian dialectic) but we should also care enough about religious ideas to not want to see them destroyed when forced down others' throats.

Rabbi Yitz Greenberg has poignantly taught the value of pluralism:

Pluralism means more than accepting or even affirming the other. It entails recognizing the blessings in the other's existence, because it balances one's own position and brings all of us closer to the ultimate goal. Even when we are right in our own position, the other who contradicts our position may be our corrective or our check against going to excess ... Pluralism is not relativism, for we hold on to our absolutes; however, we make room for others' as well (For the Sake of Heaven and Earth, 196).

By embracing a culture that values religious absolutes yet also makes room for others, all can win.

Government Funding and School Vouchers

Today, many states have implemented a voucher system so as to give parents the option to send their children to private charter schools. These options enable parents to avoid having to deal with school systems that appear to be failing, with proponents arguing that parents should be able to choose what schools their children should attend. While some prominent Democrats, such as President Barack Obama and New Jersey Senator Cory Booker, have endorsed charter schools, the major impetus for the use of vouchers has come from the new generation of Republican governors (e.g., Louisiana, New Jersey, and Wisconsin among others) who have zealously attacked teacher unions and slashed education budgets. While vouchers and charter schools are touted as the savior of city children by conservatives, serious, and even tragic, mistakes have been made, such as the Wisconsin school founded by a convicted rapist, or several religious Christian charter schools seeking to open in Louisiana that appear to be grossly below acceptable academic standards. Furthermore, voucher schools, which receive public funds, may reject students based upon religious practices, gender, sexual orientation, special needs, or disabilities; this only further exacerbates socio-economic injustices. Nevertheless, many people continue to view charter schools as the only possibility of social mobility for the urban poor.

While conservative politicians champion voucher programs, teachers unions and academic specialists are critical of the system. Diane Ravitch, a long-time education historian who served as the Assistant Secretary of Education under President George H. W. Bush and later worked in education during the Clinton Administration, has long voiced critiques of the education establishment. Recently, while speaking in Princeton, she strongly denounced the move toward charter schools as an "existential crisis" that threatened public education. In an indirect attack on New Jersey Governor Chris Christie, she questioned why New Jersey, which consistently scored among the top three states in reading and mathematics, needed a massive restructuring that included many new charter schools and the tying of teacher pay to test scores. Among her major points, Ravitch noted:

• School vouchers and charter schools siphon money away from public schools that need more money.

• Charter schools are allowed to pick the best academic students and leave students with disciplinary problems or greater educational needs to the public school system to take care of, creating a false sense of educational superiority: "It's easy to get high test scores if you leave out or push out the low test scores."

• Charter schools reinforce the worst aspects of inequality: "Here we are...recreating the dual school systems: one for the haves, one for the have-nots."

• Teachers understand that each class is different and that different approaches are often needed. Thus, tying pay to standardized tests is "junk science," as no single approach works for all classes, or students.

• Poor school districts tend to produce lower test scores due to factors relating to higher rates of poverty, malnutrition and lack of adequate healthcare access, rather than teaching deficiencies. Ravitch passionately urged, "Stop blaming the schools and the education system for social problems they did not cause."

• Instead of charter schools, education policy should focus on smaller class size and the inclusion of the arts in the curriculum, which increases student retention, rather than more standardized tests, which already dominate the curriculum today.

The Anti-Defamation League has opposed school vouchers and charter schools, noting that the vouchers (ranging from $2,500-7,500) are often insufficient for annual tuitions that can exceed $12,000, making it impossible for poor families to afford. In addition, the ADL notes that in some areas, as many as 80 percent of charter schools are run by religious institutions, many of which whose missions are of inarguable Christian affiliation. These charter schools and voucher systems clearly violate the cherished Jeffersonian doctrine of the separation of church and state.

Coincidentally, while school vouchers and charter schools are threatening our education system and challenging the separation of church and state, the Jewish community has often been incredibly successful at attracting government funding for religious school education.

Jewish schools collectively received 53 percent of the $84.5 million in Pell grant money that went to religious schools in 2010, the most recent year for which final figures are available. Of the top 10 Pell grant recipients in dollar terms that year, six were yeshivas... Jewish schools also occupied the top three places in terms of total Pell grant aid in 2010: Uta Mesivta of Kiryas Joel, in Monroe, N.Y., received $5.9 million; United Talmudical Seminary, in Brooklyn, received $6.4 million. And at BMG, one of the largest yeshivas in the United States, students received Pell grants totaling $10.5 million.

As a religious Jew deeply invested in Jewish education, it is obvious that I should have an inherent interest to advocate for government funding for religious education, but I feel that it corrodes other deeply cherished values of justice.

Clergy Parsonage

Granting a tax exemption for housing allowances to the clergy by their congregations (the "parsonage exemption") dates from 1921 (the modern income tax only came into existence with the passage of the Sixteenth Amendment in 1913), a conservative era characterized by the Red Scare, Nativism, the second rise of the Ku Klux Klan, and anti-evolution laws. It was codified as a bill during the height of the Cold War in 1954, when elements of Congress were occupied with the fight against the "godless Communists." However, advocates of freedom from religion recently established legal standing and won a stunning fight in Wisconsin. The federal court ruled that tax breaks for clergy, including ministers, priests, rabbis, imams, and others are not constitutional. The Joint Committee on Taxation Estimate of Federal Tax Expenditure estimated the tax breaks that clergy has been receiving to be about $700 million per year.

Clergy housing has become major news and a debate topic, even prior to this ruling, with the recent story of Pastor Steven Furtick. Furtick, a Southern Baptist pastor, heads Elevation Church, near Charlotte, North Carolina, one of the nation's fastest growing churches with an estimated 12,000 worshippers. Pastor Furtick made news in the past few months for his intended construction of a 16,000 square foot gated estate for his personal residence. The tax value of his new home is $1.6 million that he does not have to pay due to the parsonage exemption. Though Furtick stated that, "it's not that great of a house," the estate sits on 19 acres and will feature 5 bedrooms, 7.5 bathrooms and an electric gate, among other luxuries.

On the one hand, why should clergy, like Furtick, be treated as an elite who receive tax breaks that other public servants (teachers, social workers, non-profit workers, etc.) do not receive (the suit claimed that about $2.3 billion in revenue was lost from 2002 through 2007 due to this exemption)? On the other hand, cancelling tax benefits for the clergy is likely to hurt minority groups in lower socio-economic areas rather than affecting wealthier communities. Top salary clergy undoubtedly will be able to keep their jobs while many struggling to make ends meet will need to find other work, or at least supplement their ecclesiastical duties through some other means of support. As has been noted, the ruling has been stayed pending appeal, and there is a strong possibility that new legislation may provide legal legitimacy for the exemption again.

Again, it is in my personal interest as clergy to advocate for these tax benefits. I know how hard my colleagues and I work and how we use our private homes for communal gatherings, but I am very much concerned about the impact upon our cherished values to protect minorities groups.

Religious Institutional Transparency

Unlike most other nations, the United States does not have a homogeneous religious population, complicating the relationship between religious and civil spheres with regards to policymaking. In addition, the United States does not have a state religion, in spite of some ill-informed politicians who proclaim that this country is a perpetual Christian nation. As a result, we have a unique and delicate balance that must be maintained, and at times there is conflict. Due to inconsistent applications of church and state, religious institutions are given tax-exempt status, yet based upon the First Amendment of the Constitution they are not required to file 990 tax forms like most 501(c)(3) non-profit organizations.

In recent years there have been calls for greater transparency from religious institutions, including Jewish institutions, in the wake of money laundering and spending scandals. The Jewish Funders Network, which represents hundreds of major funders of Jewish organizations, drafted a list of guidelines that they are asking its members to hold the organizations they fund to. The guidelines include:

• The organizations should have governing boards that have financial oversight for the organization's expenses and transactions.

• The organizations should be open to independent audits and should make financial data available upon donor request.

• Compensation of the chief executive should be decided by a compensation committee.

• The organization should draft a code of ethics that includes among other issues non-conflict of interest, whistleblower and gift acceptance policies.

It is wise for all religious organizations to maintain high standards of accountability and transparency. The guidelines that the JNF put forward are a good place to begin and, if adopted by other religious institutions, will contribute to a drop in scandals and subsequently result in more trust in religious institutions.

Conclusion

The high and impregnable wall separating church from state that Thomas Jefferson and Justice Black envisioned will almost certainly remain the porous structure that it has seemingly always been. It is inevitable that our centuries-long struggle with the proper balance between the separation of church and state will continue. The government funding of a school voucher system that disproportionately propagates religious Christian indoctrination, Jewish schools receiving over $40 million in Pell Grant money, clergy parsonage and the exploitation it can enable, and the lack of religious institutional transparency are just a few of the issues that continue to challenge the separation of church and state that the Constitution guarantees. As the boundaries between church and state become more blurred, it is our duty, particularly those in minority religious populations, to ensure that this cherished American ideal is not forsaken, lest our religious freedom atrophy.

Religion should, of course, deeply inform how we live our moral and religious lives but it must not dictate how our states are run. Religious Jews should consider advocating for a strong separation of religion and state in America (and in Israel). It is because of our faith that the power of true ideas will prevail that we should keep them pure and outside of government influence. It is also because of our deep history of religious persecution that we should advocate for a model democratic state that allows for, but does not regulate nor fund religious practice, in any way.

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Rabbi Dr. Shmuly Yanklowitz is the Executive Director of the Valley Beit Midrash, the Founder & President of Uri L'Tzedek, the Founder and CEO of The Shamayim V'Aretz Institute and the author of five books on Jewish ethics. Newsweek named Rav Shmuly one of the top 50 rabbis in America."