And nit-picking justice for all

July 05, 2002|By Clarence Page

WASHINGTON -- Today's new words, class, come from Latin: De minimis.

That's a legal term that comes, legal scholars say, from the Latin, de minimis non curat lex. It means "the law does not concern itself with trifles," or, as an old farm-raised teacher of mine used to say when asked to settle minor disputes, "Don't waste my time with ... bullfeathers!"

De minimus aptly describes the real impact of two hotly debated issues of church and state: whether the words "under God" can stay in the Pledge of Allegiance and whether parents can use taxpayer-supported school vouchers in religious schools.

Both issues center on how big a hole you can punch in the Constitution's wall between church and state before the whole construction comes tumbling down.

Like it or not, the 9th U.S. Circuit Court of Appeals was technically right about the law when it ruled that "under God" had to go. But it was shortsighted, at best, to make this lightweight church-state infraction a bigger deal than it was worth.

The First Amendment says, "Congress shall make no law respecting an establishment of religion."

And President Dwight Eisenhower said, when he signed the bill that added the words "under God" to the pledge, "Millions of our schoolchildren will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our nation and our people to the Almighty."

That sounds like a government endorsement of monotheism to me. But, then, so is the statement that "all men ... are endowed by their Creator with certain unalienable rights," in the Declaration of Independence.

We Americans have a long tradition of slipping God into our governance. We somehow have managed to live with that and with a national motto that says "In God We Trust" and a Congress that begins its day with a prayer and a Supreme Court that begins its day with "God save the United States and this Honorable Court."

This tradition severely weakens, even if it does not clinch, the argument against deleting "under God" from the pledge. The clinch most likely will come when the ruling is overturned, perhaps soon by a gathering of the full 9th Circuit.

And that's OK. As Judge Ferdinand Fernandez said in his dissent regarding certain expressions of "ceremonial deism" in America's traditions, "It is obvious that the tendency to establish religion in this country or to interfere with the free exercise (or non-exercise) of religion is de minimis."

Unfortunately, de minimis also describes the impact that vouchers, which the Supreme Court approved June 27 for use at religious schools, are likely to have on America's overall education woes.

In existing voucher programs in Milwaukee, Cleveland and Florida, overall test score improvements have been mixed and inconclusive.

As a result, many voucher proponents have shifted the debate to moral arguments, where they stand on firmer ground. It is hard to argue against letting parents choose to spend taxpayer dollars in parochial schools when older students have been spending taxpayer dollars in grants and loans at religiously affiliated colleges for decades.

Besides, many other objections crack and crumble beneath the weight of misery suffered by some of our low-income children who are trying in vain to get a decent public school education. This was particularly true in Cleveland, the subject of the Supreme Court's case.

Still, the city's voucher program in the 1999-2000 school year provided relief to less than 5 percent of the students in Cleveland's schools.

Indeed, we should feel delight for the relatively few students who benefit from vouchers. But as an education cure, they continue to be a sign of desperation, evidence that the condition of public education has gotten so bad that a higher morality requires us to provide lifeboats to at least a few.

Our national stance on church-state separation need not be so rigid and absolute that it blocks potentially valuable school reform experiments. But, let's not oversell it, either. Our kids can see through the bullfeathers.

Clarence Page is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Fridays in The Sun.

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