Applying constitutional law abroad
February 23, 2010 8:25 AM   Subscribe

Applying constitutional law abroad

I know you are not my lawyer.

So, the basic question is: Is it legal for the u.s. government to fund a religious school abroad when doing so would violate the "law-of-the-land" (at least as I have understood it) inside u.s. borders?

The school being one with mandatory daily church service and christian only prayer led by a school's christian chaplain -- one which has a clear christian agenda and identity, a self-described evangelical school.

Be mindful that I do not know the current state of the debate on vouchers and such within the u.s.

If there is not a direct answer to this, then is there any information on the application of constitutional issues (church-state stuff preferably) on federal funds being applied outside of u.s. sovereignty.
posted by anonymous to Law & Government (6 answers total) 1 user marked this as a favorite
 
It would be illegal for the U.S. government to sponsor such a school under the First Amendment Anti-Establishment Clause (which has been historically interpreted very broadly by the Supreme Court.
It is irrelevant that the religious school would be abroad because it would still be likely interpreted as the United States government promoting a certain religion - which again violates the Anti-Establishment Clause.
posted by TwiceTheRice at 9:06 AM on February 23, 2010


If you somehow have access to Westlaw or LexisNexis, I am almost confident that there have been cases similar to this that have been litigated. (I no longer have access to either so I can't search for you.)
posted by TwiceTheRice at 9:07 AM on February 23, 2010


It will depend in part on what you mean by "fund," and what you mean by "school."

In the US, the federal and state governments commonly provide financial and/or in-kind aid to religious schools. They aren't just allowed to; they have to -- the government can't say "We'll give private schools this or that kind of assistance, but only if they're not too religious."

Likewise, the sorts of assistance or entanglements that are allowed increase as you go up the school ladder. At the extreme of universities, the Court has sometimes required that public universities provide funding for explicitly evangelistic student periodicals.

...which is to say that your understanding of the law of the land in the US may be wrong. Church-state interactions are complex, and a dispute that you might well think is about the establishment clause turns out to be about free expression.
posted by ROU_Xenophobe at 9:11 AM on February 23, 2010 [2 favorites]


I have to agree here with ROU_X, this is going to depend on what you mean by fund and school and how these funds are being distributed and where they are coming from.
posted by Pollomacho at 10:00 AM on February 23, 2010


ROU_Xenophobe is on the right track here.

Yes, private schools of all sorts do not receive government funding in the way that public schools do, but with very, very few exceptions*, private schools of all sorts receive government funds. If nothing else, explicitly religious organizations are largely exempt from taxation like any other non-profit. But private schools are eligible for bussing services provided by public school districts, participate in special education and special needs programs, etc.

Could the government operate a religious school? No. Not anymore. But if the government is handing out money to anyone who meets a certain set of criteria, being religious is generally not permitted to disqualify a particular organization from qualifying. As far as I can tell, First Amendment analysis is generally agnostic as to geography, so whether a particular activity happens inside or outside US territorial borders isn't really relevant.

I think you probably have misunderstood the way the First Amendment works. The idea of "separation of church and state" is easily and frequently misconstrued. The stereotype is that the government can't have anything to do with anything which even approximates religious content. But that isn't actually what the text says. Rather than effect some kind of separation as such, what the First Amendment operates to accomplish is to ensure that the government does not discriminate on the basis of religion, either for or against. So just as the government cannot operate a religious program, it cannot deny funding to an otherwise-qualified religious program solely on that basis.

*Those exceptions are usually made by the school, not the government, when a school doesn't want to submit to the strings that come attached to federal money. A lot of the time the government really would like the school to take the money, as they want everyone to toe certain lines, but schools can and do tell the government to go to hell.
posted by valkyryn at 10:02 AM on February 23, 2010


You asked whether it is constitutional for the US government to fund a religious school abroad in a manner that would violate the Establishment Clause if the school to be funded was in the United States.

No, this would not be constitutional. See, Lamont v. Woods,
948 F.2d 825, 837 (2d Cir. 1991) ("Where the expenditure of federal tax money is concerned, there can be no distinction [for Establishment Clause purposes] between foreign religious institutions and domestic religious institutions-particularly when the former are sponsored and supported by the latter.").
posted by ewiar at 10:22 AM on February 23, 2010 [1 favorite]


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