Church/State Issues: Confusion in the Court

As the U.S. Supreme Court brings its 1989–90 term to a close, some legal analysts say the high court is heading into a period on church/state issues in which confusion may be the reigning First Amendment doctrine. “The Court is having a difficult time grappling with [church/state] issues,” said Baptist Joint Committee (BJC) general counsel Oliver Thomas. “That’s distressing because on such fundamental issues, society needs a clear voice from the Court, and what we have is a great deal of confusion.”

Last month, in an eight-to-one decision, the Court upheld Congress’s 1984 Equal Access Act allowing student-led Bible clubs to meet on the same basis as other clubs in public-school facilities.

“We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis,” Justice Sandra Day O’Connor wrote for the majority in Westside Community Schools v. Mergens.

A broad coalition of religious groups, including the National Association of Evangelicals, the National Council of Churches (NCC), the BJC, and the Christian Legal Society (CLS), worked with Congress for passage of the act in 1984 as a compromise to the school prayer debate. “This decision restores a proper balance between the separation of church and state and the constitutional guarantees of free speech and free exercise of religion,” read a joint statement from them.

However, while most religious groups were pleased by the Mergens decision, many were troubled by the apparent divisions among the justices on how the ruling was reached. “No one seemed to be able to agree exactly on what they were upholding about the Equal Access Act,” said John Whitehead, president of the Rutherford Institute, which is a legal organization that specializes in religious-liberty cases. Only three justices signed O’Connor’s opinion. Four other justices issued two concurring yet vastly different opinions, and Justice John Paul Stevens issued a dissenting opinion.

Gutting The First Amendment

More troubling for most religious groups was the high court’s ruling earlier this spring in a case about the religious use of illegal drugs. In an unprecedented show of unity, religious groups from across the theological and political spectrum joined to denounce the Court’s Oregon v. Smith decision, which, by implication, allowed states to prohibit the use of peyote in Native American religious ceremonies.

“On April 17, 1990, the Supreme Court of the United States gutted the free-exercise clause of the First Amendment,” said NCC religious liberty director Dean Kelley at a Washington news conference. “The Court not only devastated the Native American Church, but struck a serious blow [to] all religious groups in this country.”

In Oregon v. Smith, the high court held that nothing in the Constitution prevents states from passing “generally applicable” laws that may have an “incidental” effect of conflicting with some religious practices. Of most concern to religious groups was Justice Scalia’s surprise assertion that states need not show “compelling government interest” when interfering with religious practices that may conflict with “reasonable” state law (see CT, June 18, 1990, p. 17).

According to Henry Siegman, executive director of the American Jewish Congress, this “sweeps away nearly 50 years of judicial protection” for religious groups, particularly religious minorities.

The Court, experts agree, is becoming more prone to a “majoritarian” view that defers to Congress and other governmental authorities. Michael Woodruff, CLS acting executive director, said this could pose a threat to minority religious groups. “If the religious activity could be considered unpopular or against the general interest of majority rules, then we are going to have a conflict where the Court may not recognize a constitutional principle that transcends what the majority has expressed,” he said.

Whitehead is also concerned about the implications of this term’s opinions. “I think we have a Court that has no direction except a political philosophy of upholding legislative enactments that could be very detrimental to the liberties of individuals and minority religions,” he said.

Other Supreme Court Action

• With a six-to-three decision, the justices ruled that states may ban the private possession or viewing of child pornography. However, the ruling in Ohio v. Osborne allowed exceptions for material possessed by the child’s parents or used for a “bona fide” artistic, educational, or scientific purpose.

• The Court refused the long-running attempt of abortion-rights activists to revoke the tax-exempt status of the Roman Catholic Church because of its prolife stand.

• In a unanimous decision, the Court ruled that parents who give direct financial support to missionary children may not deduct the money as charitable contributions “for the use of the church.”

• The Court denied a request from Operation Rescue to lift a lower-court order banning protesters from holding demonstrations within 50 feet of abortion clinics in Atlanta. In a separate decision, the Court also upheld the use of an 1871 anti-Ku Klux Klan law to impose hefty fines against Operation Rescue.

• The justices agreed to hear arguments next term on the constitutionality of regulations that prohibit federally funded family-planning groups from offering abortion counseling or referrals.

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