U.S. Supreme Court Restates Its Commitment to Separation of Church and State

A series of U.S. Supreme Court rulings on church-and-state issues this year calls into question whether there is a discernible trend toward government accommodation of religion in public life. But in each case, a split decision indicates the Court’s continuing reevaluation of how it should interpret the “sparse language and broad purposes,” as one justice wrote, of the First Amendment’s establishment clause.

Last month the Court handed down two decisions that struck down state aid to private school students. The justices were split five to four on both decisions. The rulings were based on rigorous applications of the Court’s traditional “three-part test”: whether a statute has a secular purpose; excessively entangles church and state; or advances religion. In Grand Rapids, Michigan, and in New York City, publicly funded educational programs involving church-affiliated school students flunked the three-part test.

In both cases, Justice Lewis F. Powell voted with the majority, providing a crucial swing vote that, in the last two terms, weighted several opinions in favor of greater accommodation of religion in public life. Recent Supreme Court rulings allowed chaplains to be paid by state legislatures, cities to permit nativity scenes on public land, and parents of parochial school students to take tax deductions for tuition.

This term, however, the Court reiterated its commitment to maintaining separation of church and state. In addition to the rulings involving private schools, the Court struck down an Alabama school-prayer law (CT, July 12, 1985, p. 52), prohibited states from requiring private employers to give employees a regular day off for religious observance, and ruled that private religious groups must abide by federal minimum-wage laws.

Two church-and-state cases resulted in tied votes because Powell was unable to participate due to illness. One tie vote accommodated the request of a Nebraska woman to obtain a driver’s license without having her picture taken because of religious belief. In the other, the Court sided with Scarsdale, New York, citizens who want a nativity scene displayed on town property.

The Court’s New York City aid to private schools ruling, known as Aguilar v. Felton, prevents federal funds from being used to pay salaries of public school employees who teach in parochial schools. The program being challenged, called Title I, authorizes federal financial assistance for school programs directed at students in low-income neighborhoods. In New York, the program included remedial reading and mathematics, English as a second language, and guidance services.

Public school employees volunteer to participate in the program, which takes place on private school premises, most of which are church related. The teachers are asked to avoid getting involved with any religious activities in the private schools and to steer clear of private school personnel. Classroom materials used for Title I programs are supplied by the government, and parochial schools hosting the programs are required to remove religious symbols from classrooms used by public school teachers.

The Court’s majority ruled that even if Title I does not advance religion directly, its administration “inevitably results in the excessive entanglement of church and state.” The program had to be monitored to assure that the public school employees did not teach religion.

“In short,” the opinion says, “the religious school, which has as a primary purpose the advancement and preservation of a particular religion must endure the ongoing presence of state personnel whose primary purpose is to monitor teachers and students in an attempt to guard against the infiltration of religious thought.… Despite the well-intentioned efforts taken by the City of New York, the program remains constitutionally flawed.”

The four justices who dissented—Chief Justice Warren Burger and Associate Justices Byron White, Sandra Day O’Connor, and William Rehnquist—attacked the majority for demonstrating hostility toward religion.

These same four justices filed dissenting opinions in the Grand Rapids case, although Burger and O’Connor concurred with a portion of the majority ruling. Known as School District of the City of Grand Rapids v. Ball, the case brought before the Supreme Court a pair of programs in which public and private school activities intersect.

One of the programs, called a shared time program, offers classes during the school day to supplement courses required by the state. They are taught by full-time employees of the public schools.

The other, called a community education program, makes classes available after school hours. The classes are taught primarily by teachers employed by private schools, but hired temporarily by the public schools during the duration of the program. In Grand Rapids, 40 of the 41 private schools that participated in the programs were sectarian.

Michigan education officials had gone to great lengths to clear the private school rooms used by these students of any religious symbolism. The public schools paid rent to private schools for the space used for the programs, and a sign saying “Public School Classroom” had to be posted. As in the New York case, the course offerings ranged from remedial reading and math to instruction in hobbies such as crafts, model building, and gymnastics.

The Supreme Court’s majority opinion discounts the absence of specific incidents of religious indoctrination. “After spending the balance of their school day in classes heavily influenced by a religious perspective,” the majority stated, “they [students] would have little motivation or ability to discern improper ideological content that may creep into a Shared Time or Community Education [course].”

The only church-and-state ruling in the term just ended that approached unanimity among the justices involved a Connecticut employee who refused to work on Sunday. The employee, Donald Thornton (who died in 1982 while the case was pending before the Connecticut Supreme Court) cited a state law that prevented employers from forcing employees to work on a day they observe as their Sabbath.

Thornton won in lower courts, then lost in the Connecticut Supreme Court. The U.S. Supreme Court, in an eight-to-one vote, agreed with the state’s highest court, ruling against Thornton. “The statute arms Sabbath observers with an absolute and unqualified right not to work on whatever day they designate as their Sabbath,” the majority wrote. This imposes on employers “an absolute duty to conform their business practices to the particular religious practices” of an employee. The Court ruled that the law advanced religion as its primary effect, making the statute unconstitutional.

Rehnquist dissented without comment, while O’Connor and Thurgood Marshall concurred. They said the Connecticut law “conveys a message of endorsement of the Sabbath observance” to the detriment of people who do not share belief in a Sabbath. “Endorsement” is a new yardstick O’Connor has mentioned in several rulings in an attempt to shed new light on the separation of church and state. That yardstick reflects dissatisfaction among several justices about the “wall of separation” they have fallen back on for so long. It will ensure another round of intriguing church-and-state rulings next term, which begins October 7.

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