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Abstract

This Article explains why tax-funded education is an unconstitutional establishment of religion in violation of the First Amendment. It analyzes the worldview that sustains the educational establishment and informs Supreme Court jurisprudence—a worldview that falsely bifurcates reality between the secular and the religious.

The Supreme Court has never given serious attention to defining the term religion as used in the First Amendment religion clauses. During the Virginia establishment controversy that culminated in 1786, Virginia provided a definition of religion and identified the fundamental principles on which religious liberty is based. That definition and those principles contrast with the subjective definition and discordant principles that mark modern Supreme Court jurisprudence. The present critique is not simply based on an originalist theory of constitutional interpretation, but rather it reflects a law-of-nature principle that civil government has no jurisdiction over the mind.

Public schools have become the chief means by which all levels of civil government have established religion in the United States. Four distinct forms of school-state relations parallel four distinct forms of church-state relations that have existed in colonial Virgina or in the United States. Only the model of free churches and free schools (i.e., privately funded churches and schools) is consistent with the First Amendment.

In defeating the Virginia state-church establishment of religion, Madison and Jefferson advocated for the principles that God has created the mind free and that it is “sinful and tyrannical” to tax a person for “propagation of opinions which he disbelieves.” By 1819, Madison and Jefferson were instrumental in promoting the state-school establishment of religion through tax-funded schools. The Supreme Court, and most Americans, vacillate between the diametrically opposed principles that the state has no power to establish an orthodoxy of opinion and that the most important function of state government is to inculcate values through public schools.

This vacillation is best explained by the fact that jurists and citizens hold two competing worldviews—one being orthodox Christianity and the other a worldview influenced by Aquinas and Kant that divides reality between the secular and religious. Consequently, the Court has condoned civil government establishing an orthodoxy of “secular” belief through a system of compulsory school attendance at taxpayer expense, while tolerating “religious” education that is privately funded. Based on orthodox Christian principles, civil government has no authority to provide tax funding for educational purposes of any kind.

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