Many American Jews are about to face governmental discrimination. At least that’s what will happen to them, along with other religious people, if several offensive provisions remain in President Biden’s Build Back Better (BBB) plan and it passes (even in a modified form) despite Senator Joe Manchin’s apparent opposition at the moment. The plan helps fund preschool tuition and renovations…so long as the school is not, in the words of the late comedian Jackie Mason, “too Jewish.” Or, in this case, “too Muslim” or “too Hindu.” Because if the school happens to be religious, it will face special scrutiny that could prevent it from receiving funding. Perhaps the most egregious example is that if a school happens to rent space in a synagogue, mosque or church, it will not be allowed access to federal money for renovations. This is supposedly being done to prevent government funding of religion, but it really just discriminates against religious parents, children and schools. All Americans should be outraged by the situation and should insist that the bill be modified or voted down in its current form.
Several provisions of the bill as currently drafted would prevent religious schools from receiving benefits. For example, Agudath Israel and the Orthodox Union, two prominent Jewish communal organizations, explain that the way in which the bill distributes funds would prevent any money from reaching religious pre-Ks. Doing something as simple as celebrating Jewish holidays might result in a school’s complete exclusion.
While we agree that those provisions are disgraceful and unacceptable, other provisions are even more explicitly discriminatory. One section makes childcare providers located in houses of worship ineligible for grants aimed at renovating their facilities. A second provision prohibits funds from being used to renovate facilities “in which a substantial portion of the functions of the facilities are subsumed in a religious mission.” At the very least, this would exclude any childcare program housed in a synagogue, mosque or church.
What reason could the administration have for denying funding to renovate, repair or remodel childcare facilities simply because they happen to be located in synagogues? Does it think that such facilities are somehow unworthy merely because Jews happen to pray in the same location? Are Jewish mothers and children less deserving of the benefits than secular mothers and children? Such assertions are absurd on their face.
Some might attempt to excuse this discrimination by claiming that the First Amendment’s prohibition on the establishment of religion requires the administration to ensure that no government funding even indirectly benefits a house of worship. But the Supreme Court has resoundingly rejected this erroneous reading of the Constitution. The First Amendment does not require the government to discriminate against religious people or to treat them like second class citizens.
Contrary to popular misconception, the First Amendment does not mandate a “separation of church and state.” Instead, it prohibits the governmental from “respecting an Establishment of religion.” This is best understood as prohibiting the government from engaging in certain activities including coercing people to engage in religious activity, mandating that religious institutions preach particular doctrines or limiting political participation to members of the state church. The Constitution does not give the government license to exclude religious people from generally available benefits because of their faith—in fact, it prohibits such discrimination.
The Supreme Court dealt with a similar issue in the case Trinity Lutheran Church v. Comer. The plaintiff, a preschool located on the premises of Trinity Lutheran Church, applied to a Missouri program that offered grants to help make playgrounds safer for children. The state determined that the school qualified for the program. In fact, it decided that the school was one of the most deserving recipients in the state. Unfortunately, however, the state denied the school’s application because it refused to allow schools located in churches to participate.
Much like a hypothetical defender of Build Back Better, Missouri claimed that it could exclude the school in order to maintain a separation between church and state. The Supreme Court rejected this argument. It recognized that the Constitution “protects religious observers from unequal treatment” or “special disabilities” because of their faith. In the strongest terms, the Court exclaimed that excluding a religious entity “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution... and cannot stand.” The desire to maintain a wall of separation between church and state cannot justify treating religious people like second class citizens and denying them benefits available to their neighbors.
The Biden administration’s motivation for increasing access to childcare and pre-K is laudable. Unfortunately, however, it is trying to do so in a manner that excludes religious parents, children and schools. Jewish, Muslim, Christian, Hindu, Buddhist and any other parents affected by this bill would do well to call their senators and urge them to vote against any version of the Build Back Better Bill that discriminates against religious people. Other Americans should join them in protest. The version of the bill that passed the House of Representatives is antithetical to the American value of religious tolerance and should not become law in the land of the free.
Rabbi Mitchell Rocklin is the president of the Jewish Coalition for Religious Liberty. Howard Slugh is the general counsel of the Jewish Coalition for Religious Liberty.