Article by Edward J. Eberle
In this Article, Professor Eberle evaluates the relationship of religion in the classroom in Germany and the United States, as formulated by the countries' highest courts, the German Constitutional Court and the United States Supreme Court. Pursuant to the German model of church-state cooperation, public funds are channeled to religious organizations, such as, for example, using the machinery of the state to raise and disperse tax monies to religious organizations. Religious groups may then use the tax monies collected to support religious education in the public schools. However, pursuant to guidelines announced by the German Constitutional Court, teaching of religious tenets can only occur in religion class and ample opportunity must be given to students to choose or not choose the type of religious instruction they desire. Apart from religion class, dominant Christianity is to be treated only as a part of the historical tradition of western civilization and not as a missionary exercise; no religious indoctrination may occur on public school premises outside of religion class.
By contrast, the language and Enlightenment background of the American Establishment Clause reasonably suggests a more separationist approach to church-state relations. It is fair to say that a separationist approach still largely applies with respect to public schools. However, the formal neutrality advanced by the Rehnquist Court reconceives church-state relations along distinctly more accommodationist grounds concerning private, parochial schools. Employing a core doctrine of (1) neutrality and (2) private, genuine choice—principles that resonate partly with German doctrine—substantial public aid has been dispensed to private, religious schools, as we will examine. In this way, religious institutions can be accommodated in society on the same basis as secular institutions. We can see that recent American Establishment Clause doctrine has unfolded in a way somewhat characteristic of German church-state relations in respect of public support for religious teaching in schools. For comparative purposes, it is striking that American doctrine has so evolved notwithstanding a much different historical understanding and constitutional language.
About the Author
Edward J. Eberle. Distinguished Research Professor of Law, Roger Williams University School of Law. J.D., Northwestern University School of Law; B.A., Columbia University.
Citation
81 Tul. L. Rev. 67 (2006)