Church and State Debate

Lots of factors contribute to productive arguments. But they can't happen at all if the arguers don't actually respond to the claims of their opponents. This "talking past each other" pattern, however, pervades modern media.

A short while ago, I listened to an NPR segment on the possibility of a publicly funded Catholic school in Tennessee. Near the end, the segment had two experts on: a law professor, who believed that this would be a perfectly permissible thing to do under Constitutional law; and an ACLU representative, who believed that a religious school violated bedrock principles of separation of church and state.

What I expected next was an exploration of the various issues involved. But as the journalist interviewed the program's guests – and featured several listener opinions – the segment became just a list of repeated opinions. Neither guest, at least initially, seemed interested in actually explaining their position. For the ACLU representative, the proposed Tennessee school was "obviously" a violation of the separation of church and state. Eventually, he alluded to a recent appellate court decision. For the law professor, it was an "obvious" application of existing Supreme Court precedent, which has certainly permitted public funds (through vouchers) to support religious education.

Although the guests didn't yell at each other, structurally, the segment reminded me of classic cable debate shows like Crossfire: two people state their opinion... and continue to state their opinion in different ways until the show ends. The show brought on people with diverse perspectives, but a member of the public who listens to this segment – like me – only walks away with a dim understanding of what's happening and what people think about it. Have I learned about the relevant case law? No. About the Establishment Clause and the Free Exercise Clause? No. About the differences between this situation and similar public funding for private religious schooling in other states? No. About the potential ramifications if the school's application for public funds gets approved? No.

I don't know all of the issues involved. But the idea of publicly sponsored religious schools was explicitly contemplated as potentially constitutional after the Supreme Court decided Carson v. Mason, which declared that Maine has to allow students to use school vouchers to attend private religious schools if it allows vouchers for other private schools.

The First Amendment is mentioned once or twice, but what's really at stake is the Establishment and Free Exercise Clauses, mentioned perhaps once each in passing, but never explained. Several legal cases are alluded to, but never mentioned specifically by name (making it difficult for a listener to read about them afterwards, if they wanted to).  And whenever the conversation touches on a substantive issue, like the constitutionality of Tennessee law explicitly preventing this kind of thing, the program quickly moves on.

The host emphasizes that voucher programs are different than charter schools, and there is disagreement between the guests over whether the charter schools in this case are public or private. But the show never digs into any of these issues. What's the practical difference between having a voucher program, where the state gives money to someone to use for a private religious school and having religious charter schools that students can attend on the state's dime? Why should we consider a charter school to be "public" when it is managed by a non-profit (or for-profit) organization and not the state? These are interesting questions. They're worth exploring.

This is not a simple or obvious issue, despite both guests' representations to the contrary. Establishment Clause jurisprudence alone is a total mess. The Supreme Court has been laughably inconsistent. At least educate people about the issues involved.

The segment also skips over an important epistemic difference between the two guests. On the constitutional issues, the ACLU seems to be arguing for a specific interpretation of the interaction of the Establishment Clause and the Free Exercise Clause. In essence, they're saying "this is what the Constitution actually says." They can't go into the case saying that Carson v. Mason (and other related cases) were wrongly decided, even though I can guarantee that the members of the ACLU believe they were.

The law professor, by contrast, is saying "this is how the Supreme Court has decided previous cases in this area; it seems likely they would decide this case in the same way." At one point, the host asks him what "should" happen and it's unclear whether she's asking for his personal opinion or his legal opinion. I'm guessing he is personally in favor of permitting public funding of religious schools, but he apparently believes that this is just the way the legal cases have turned out; Establishment Clause and Free Exercise Clause jurisprudence could have gone another way, but they didn't.

This kind of dynamic occurs for several reasons. First, the segment has time limits. It's impossible to introduce, explore, and examine an issue like the constitutionality of a public religious school to members of the public, who have different levels of background knowledge on the subject, in a half hour. The program tees up the issue with a fairly long discussion about how the situation in Tennessee even came to be. This helps the listener know what's going on, but leaves little time to understanding the nature of the legal arguments. The pace of the conversation always has to move forward. So it's "coverage" rather than depth.

Second, media outlets prioritize viewpoint representation over educational value. Earlier in the program, they brought a liberal religious leader fervently against permitting the Catholic school to receive state funds. Why? Because she offers an interesting perspective – not because she has any legal expertise. On "controversial" pieces like this, the go-to format is to bring on two people who have opposing opinions, just like this segment did. This formatting comes from the news-as-entertainment way of thinking that has pervaded media for 50 years or more.

From the guest's point of view, the purpose of their appearance isn't to educate – it's to advocate. They may only have 3-4 minutes of "talk time" to make any kind of case to persuade listeners of their view. Almost any media appearance comes with "talking points" – the points the advocates want to hammer again and again.

If the program wanted to educate listeners, they don't necessarily need guest-advocates at all. They could bring on a legal expert who isn't involved in the case to discuss the various issues at play (e.g., the Establishment Clause, the Free Exercise Clause, anti-discrimination law, differences between Tennessee and federal law, existing case law, etc.). Or even a panel of legal experts. They could make distinctions between what the law says, at least in principle; what is likely to happen, given the current make-up of the Supreme Court; and what would be right, regardless of legal precedent. And listener call-ins could be for questions about the case – not to simply state another opinion for or against.

Then you could have a productive, informative discussion that goes beyond "people expressing their opinion". This segment is not a special case. It follows established news patterns. But I don't see how these patterns serve the public interest.