One of the most significant debates in India is the critical role of the right to freedom of religion enshrined in A 25 and A26 of the Constitution of India.  The Indian judiciary has deliberated upon issues of State funding to rebuild mosques and shrines in Gujrat to questions of whether the State can set up a trust to manage the proposed Ayodhya temple. These questions go to the heart of our nation’s existence as a secular country and make us wonder about what does Indian secularism entails. The author here analyses a recent  US Supreme Court judgment on the question of the provision of federal funds to private schools, without destroying “the wall of separation” between the Church and the State.

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“Before kicking down a wall ask yourself the question, why was it there in the first place”

~ Someone who was probably killed due to an animal attack!

 

On a foggy June morning of 1987, in his famous speech President Ronald Reagan had famously implored (and rightly so) General Secretary Gorbachev of, what was then, the Soviet Union to tear down a certain wall. The wall that he was referring to was the Berlin Wall. President Trump controversially talks of walls too, to keep the ‘savage other’ out. It seems as if American politics, very much like the American dream, is like running from pillar to post, always in a constant state of flux. Err…or should I say running from ‘wall’ to ‘wall’?! 

 

The latest ‘wall’ in contention i.e. the ‘Wall of Separation of Church and State’, is built on (pun intended) America’s foundational documents and has since influenced many liberal democracies including India. Thomas Jefferson during the public debate on the Bill of Rights had famously spoken of, “building a wall of separation between church and State”. The Supreme Court of United States (“SCOTUS”) has upheld this liberal tradition aided brilliantly by the First Amendment to the US Constitution which modestly states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof……”, thus fending off majoritarian right wing governments hand in glove with American evangelists in favoring Christianity or the ‘state’ aiding it in any manner.

 

It will be useful to keep in mind that the first part of this First Amendment till the ‘comma’ is what is referred to as the ‘Establishment Clause’ which prohibits America to have an ‘established religion’ unlike other democracies like the United Kingdom wherein the established religion is Christianity and in fact the monarch still appoints the senior ecclesiastical order and is known as the ‘Defender of the faith’ and the ‘Supreme Governor of the Church of England’. The second part of the clauseor prohibiting the free exercise thereof which is the core issue of this article is usually referred to as the ‘Free Exercise Clause’ aids citizens to practice and profess their faith without proscription by the state.  

 

French Montana-The Writing on the ‘Wall’

 

The SCOTUS recently has pronounced its judgement in Espinoza et al v. Montana Department of Revenue et al which has turned the First Amendment right and the doctrine of ‘separation of church and state’ on its head. By way of background, the Montana legislature devised a funding program that grants tax credits to people who donate to organizations that award scholarships for private schools. To ensure that the program is in line with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at ‘religious schools’.

 

Three mothers who were disabled by Rule 1 from using scholarship funds for their children’s fee at Stillwater Christian School sued the Department of Revenue of Montana in a state court, alleging that Rule 1 discriminated on the basis of their religious views and the ‘religious nature’ of the school they had chosen. The Montana Supreme Court (“Montana SC”) had previously held that the funding program, unmodified by Rule 1, aided “religious schools” in violation of the Montana Constitution’s “no-aid” provision. The Montana SC further held that the violation required invalidating the entire program including providing aid to non-religious schools.

 

In a nutshell, the SCOTUS by way of majority of 5-4, led by Chief Justice John G. Roberts, reversed the Montana SC decision and held that the “no-aid” provision (Rule 1) in the state’s program is in violation of the “Free Exercise Clause”, as it “bars religious schools from public benefits solely because of the religious character of the schools” and “also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.” He also asserted that the Montana SC was wrong to invalidate the entire program on the basis of the ‘no-aid’ provision in the state’s constitution. 

 

The liberal side of the SCOTUS led by Justice Ruth Bader Ginsberg plainly rejected the opinion of the majority, in essence stating that allowing the state to indirectly (by way of tax credits) fund religious institutions is a violation of the First Amendment. Perhaps the most telling concern was voiced (or rather penned) by Justice Breyer on the dissenting side, he said, If, for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.” Sigh! Perhaps he was guided by the charming idealism of Denis Diderot who had famously said, “the distance between the throne and the altar can never be too great

 

The Tale of Two Precedents

 

The majority discussed two important precedents and distinguished one of those in reaching its conclusion. The first one which was heavily relied on by the majority was “Trinity Lutheran Church of Columbia Inc. v. Comer” which dealt with a challenge to the restriction by another state (Missouri) to provide grants to help non-profit organizations pay for playground resurfacing, but the state policy disqualified any organization “owned or controlled” by a church, sect, or other religious entity.” Because of that policy, an otherwise eligible church-owned preschool was denied a grant to resurface its playground. Missouri’s policy discriminated against the Church “simply because of what it is—a church,” and so the policy was subject to the “strictest scrutiny,” which it failed. 

 

Raison d’etre for Reliance: The majority relied on this precedent because in its view the organization (Trinity Church) was denied aid solely basis its religious identity even though the “end-use” of the funds were for a secular purpose, i.e. making playgrounds safer.  

The other precedent discussed at length and distinguished is that of “Locke v. Davey” wherein the State of Washington provided scholarships paid out of the state’s funds to help students pursuing postsecondary education. The scholarships could be used at accredited religious and non-religious schools equally, but the state prohibited students from using the scholarships to pursue devotional theology degrees. The SCOTUS had held that the state had not violated the Free Exercise Clause as the state cannot be aiding religious vocation. 

 

Raison d’etre for Distinguishing: The core reason for differentiating the latter precedent by the majority is that aid was not denied by the state merely because of the nature of any institution, i.e. it being a ‘religious institution’ but was denied on the ground that the “end-use” was for learning ‘theology’ which is not a secular activity unlike making playgrounds safer. 

 

Humpty Dumpty’s fall from the “Wall”

 

The flaws in the majority opinion (though scattered across the dissenting opinions) can be summed in the following manner:-

 

  1. End-Use Dilemma- The pith and the substance of the First Amendment is that religious activities should not be funded by the state whether directly or indirectly. While, principally I’m willing to accept Trinity Lutheran Church judgement, the point of differentiation (which was conveniently ignored by the majority) was the end use of funds. Improving playgrounds in that case (a secular activity) and for no particular end use in this one. This means that the funds provided by the state of Montana can very well be used for purchasing Bibles or building chapels in the school. In fact, some of the petitioners had testified that the religious activities in the school is a “major reason” why they chose religious schools for their children and that the school teaches “the same Christian values that I teach at home”. This was not the case in Trinity Lutheran Church judgement. 

 

  1. Exacting from the State- As discussed by Justice Breyer in his opinion, the Free Exercise Clause “is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Justice Ginsberg pointed out that Montana SC has already annulled the entire scheme and now there is no reason for any discrimination (if at all) as the scheme in question is not in existence anymore! The majority went ahead of its mandate to breathe in life into a ghosted legislation which was technically out of the statute books to revive it so that religious institutions can be treated equally! Phew!  

 

Two moving parts of this argument is that firstly, the legislation in question was already annulled including in its application to non-religious schools and hence reviving it seems like legislating from the bench. Secondly, the Free Exercise Clause prohibits the state from proscribing practice of religion, it does not give a positive right to individuals to exact a privilege from the state. This is akin to forcing the state to fund religious schools if they aid non-religious ones. Justice Breyer rightly pointed out, “this Court had never before held unconstitutional government action that merely failed to benefit religious exercise”. A disastrous corollary to this positive right now extended by the majority is that will the state be required to fund religious public schools? This seems like judicial zealousness (a word, ironically used in the context of religious fervor).

 

A Republic, if we can keep it! Lessons for India

 

What could be the lesson for India in this judgement since India has a ‘decent’ tradition of being a secular state? Hell, even our Constitution expressly states so unlike the U.S’s! Good history should begin with questions and not with answers. While, the obvious answer seems to be that India is insulated from this constitutional malfunction, but the devil (or rather god in this case) is really in the constitutional detail. 

 

Talking of history, anecdotes are a good place to begin with. Unlike the First Amendment Clause in the U.S Constitution, India has a corresponding clause which is somewhat like a watered down Free Exercise Clause. In March 1947, Dr Ambedkar had prepared a draft clause that had an express clause akin to the Establishment Clause which prohibited the state from establishing a state religion and in turn from being involved in religious affairs. However, something odd happened on April 14, 1947, when the sub-committee on fundamental rights met, this draft clause was surprisingly omitted and was never even tabled in the Constituent Assembly for debate. There are no clear records of what really transpired.  

 

The Constitution of India does not prohibit India to establish a religion (in theory) provided it does not discriminate between religions, somewhat like the United Kingdom. This has traditionally allowed the Indian state to be involved in temple management and manning boards of religious institutions. This half thought through clause has led to various litigations, including the much debated Sabrimala judgement. The Indian state is already neck deep in pandering and in many cases encouraging its instrumentalities to be involved in religious affairs. This is all the more reason for the Indian Supreme Court which, in essence, is revaluating the Sabrimala judgement to be mindful of this slippery slope. Separation or the Wall doctrine has stood the test of time and is the only hope a diverse people have to live in peace together. 

 

I close with a story, one of the founding fathers of America, Benjamin Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” He said to have ominously replied, “A republic, if you can keep it.”

 

So, I guess, the task for us Indians is cut out clearly!

 

(The author is a lawyer based in Delhi. Views expressed are personal.)

 

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