Which Way Will the New Justice Vote?

SUPREME COURT

As the Supreme Court moves through its spring term, many Court observers say this will be a crucial time, especially in the church-state arena. And while the issues before the justices are not headline grabbers like the recent creationism, school prayer, and textbook cases, experts agree this term could have a far-reaching impact on the direction the Court will be taking with regard to religious issues.

New Shakedown?

A key factor in any new direction will be recently confirmed Justice Anthony Kennedy. During his confirmation hearings, Kennedy did not reveal his views on such church-state issues as the free-exercise and establishment clauses of the Constitution, and he did not address such cases during his time as a federal appeals judge.

Consequently, many observers see him as something of a critical “wild card.” In recent years, the Court has become divided over church-state issues, with many cases being decided on a 5-to-4 vote. Justice Lewis Powell, whose spot Kennedy filled, was often considered the “swing vote” who determined which way a case would be decided.

“I think we may see a new shake-down, a new picture presented on both establishment and free-exercise [cases],” said constitutional attorney William Bentley Ball, “and I’m not venturing to predict whether that will be good or bad.”

Federal Funds For Church Groups

One of the most important church-state cases currently before the Court, Bowen v. Kendrick, involves the constitutionality of allowing religious groups to accept federal funds for programs that promote abstinence for teenagers.

Clarke Forsythe, staff counsel for Americans United for Life (AUL), said a lower court ruled that the religious mission of the organization is related to its program of promoting abstinence. “So on that premise, no religious program could participate in any social-welfare program because every social-welfare program would relate to a group’s religious mission,” Forsythe said. He fears churches and religious groups that accept federal grants for soup kitchens, homeless services, immigration counseling, drug-abuse programs, and services to help teenage runaways could be affected.

At issue in the Kendrick case is the Adolescent Family Life Act, passed by Congress in 1981, which allowed nonprofit groups, including religious groups, to receive federal grants to promote chastity and alternatives to abortion. The act specifically forbids the religious groups to use the federal grants to promote religion.

The American Civil Liberties Union (ACLU) challenged the law, saying it allowed “federal funds to subsidize religious indoctrination as a means of opposing premarital sex.…” A federal district court ruled last year that providing those funds for religious groups under the act would create an “excessive entanglement between government and religion” in violation of the establishment clause.

Samuel Ericsson, executive director of the Christian Legal Society (CLS), acknowleged that there is a potential for some grant recipients to violate the contract and use federal money to promote religion. However, he added, “You don’t throw the baby out with the bathwater.”

Not all religious groups agree such funding is appropriate. Oliver Thomas, general counsel for the Baptist Joint Committee (BJC), filed a brief on behalf of his group and the American Jewish Committee in opposition to providing funds. While commending the “outstanding job” that many of the religious groups were doing in trying to combat teen pregnancy, Thomas said the government should not be subsidizing that kind of activity. “We think that it’s impossible for religious organizations to teach sexual morality without consciously or unconsciously promoting religion,” Thomas said.

Thomas believes churches will be better off not receiving federal funds for any programs. “When we accept government funds, then we’re going to be held accountable to certain standards, and it’s going to be a secular mentality that’s imposed on the churches,” he said. “Strings follow government money.”

Both sides agree the Court may use this case as an opportunity to re-examine the traditional criteria for determining whether a particular government action violates the Constitution’s prohibition against government establishment of religion (the Lemon test). Recently, several of the justices have indicated dissatisfaction with that test.

Fishing Expeditions

A second case the Court has taken up looks at who has the right to challenge the tax-exempt status of churches and other religious groups. U.S. Catholic Conference v. Abortion Rights Mobilization (arm) began when several prochoice groups and individuals, led by arm, sued the Internal Revenue Service (IRS) and the treasury department for not revoking the Catholic Church’s tax-exempt status because of the church’s prolife activities, arm charged that the tax exemption gave the Catholic Church an unfair subsidy for “partisan political activity” in the abortion debate.

In the legal process, the National Conference of Catholic Bishops and the United States Catholic Conference refused to release some 20,000 subpoenaed internal documents, including sermons, pastoral plans, newsletters, and other sensitive information. The lower court found the two groups in contempt of court and ordered them to pay fines of $100,000 per day until they complied with the subpoena. Those fines have been temporarily suspended pending the appeal.

The root issue in this case is whether churches have the right to speak out on moral issues in the political realm without endangering their tax-exempt status. However, the issues the Supreme Court will address at the present time are procedural ones: Do arm and the other prochoice individuals have enough direct interest—or legal standing—to sue the government on this? And second, can the church be forced to hand over sensitive documents without having the right first to challenge the underlying lawsuit?

Legal observers agree the procedural-issues case could have broad implications for religious groups. A brief filed by the Rutherford Institute, a legal group that deals with religious-liberty issues, argued that if the Court rules arm does have the standing to bring this lawsuit, any group or individual that disagrees with a church’s beliefs could go on “fishing expeditions” by threatening its tax status and demanding confidential documents.

The Baptist Joint Commission’s Oliver Thomas said he fears that if the case is allowed to stand, a “strategy of intimidation” will be used against churches and other religious groups speaking out on moral issues. He added he fears this will have a “chilling effect” upon religious moral advocacy. “Many churches may be inclined to sit silently on the sidelines while these important political battles are being waged,” Thomas said.

Other Cases

The Court has been considering several other issues of interest this spring:

• In a case from Wisconsin, the justices are looking at some procedural questions surrounding a battle between prolife picketers and the town of Brookfield. The town has passed a municipal ban against residential picketing, apparently in an effort to stop prolife activists from picketing on public property in front of an abortionist’s home.

• In a free-exercise case, the Court was asked to hear arguments on whether persons employed by a church can be required to pay taxes for a government welfare program they oppose on religious grounds. The case, which involves Bethel Baptist Church in Pennsylvania, also asks the Court to consider whether the First Amendment bars the taxation of the religious activity of churches.

• Earlier this spring, the Court ruled that a Hustler magazine parody of Jerry Falwell as an incestuous drunk was not libelous. According to CLS’S Ericsson, the ruling said, in effect, that even “outrageous” speech is protected by the First Amendment—some good news for religious groups. “There is a lot of stuff that’s done in the name of religion that the world may perceive as outrageous … and the principle [in the decision] can be used as a very strong statement that would protect all First Amendment conduct, … including religious conduct,” Ericsson said.

By Kim A. Lawton.

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