Disestablishing the ‘Establishment Clause’?

Is the Supreme Court ready to alter the balance of the First Amendment’s religion clauses?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

—The First Amendment to the U.S. Constitution

Late this summer, the Adventist Review sent shock waves through the Seventh-day Adventist community by publishing an editorial that advocated a “tax deduction or rebate” for parents who send their children to religious schools. In the editorial, entitled “Getting a Piece of Our Own Pie,” writer Roy Adams described receiving in the mail on the same day his annual county school tax assessment and the bill for his children’s tuition at the Adventist academy. “Does it make any sense at all to pay large dollars to send my neighbors’ kids to school and then turn around and pay yet again to send my own children to church school, with no corresponding assistance from society at large?” he asked.

Adams’s proposal was not new in the religious world. But it was startling coming out of the Adventist community, which has traditionally favored a strict separation between church and state and opposed any type of government benefits for religion. An Adventist spokesman said the editorial does not signal wholesale change on the part of the denomination, but he conceded it is indicative of growing internal tensions about the role of government and religious education.

Those favoring a solid wall of separation between church and state say the Adventist incident illustrates a deepening shift among religious groups—and in the Supreme Court—away from a separationist point of view and toward a view that allows more interaction and partnership between church and state.

Next year marks the bicentennial anniversary of the First Amendment and its two-pronged guarantee of religious liberty. Yet, as religious and legal groups make preparations to commemorate the adoption of the religion clauses, they uneasily admit that much confusion currently surrounds interpretation of the First Amendment. Church/state experts agree that the U.S. Supreme Court is poised on the brink of new judicial directions in both “free exercise” and “establishment” clause cases. The Court’s lack of clarity about these issues is highlighting differences among religious groups.

Court Of Confusion

Religious groups were outraged last spring by the Court’s “peyote” decision, which said states need not show “compelling interest” when interfering with religious practices that may conflict with “reasonable” state law (CT, July 16, 1990, p. 48). Virtually all religious groups believe that decision has seriously eroded the free-exercise clause, and in the ensuing months much attention has been given to the potential effects of this decision. Religious groups are hoping the decision will eventually be overturned through congressional legislation (CT, Sept. 24, 1990, p. 17).

Now, Court observers say, the establishment clause may also be facing major judicial changes. At least four justices—Chief Justice William Rehnquist Antonin Scalia, Anthony Kennedy, and Byron White—have expressed a desire to rethink how they decide what constitutes the establishment of religion. Traditionally the Court has used a three-part test to determine what is permissible: the law in question must have a secular purpose; its principle effect must not be to aid religion; and it must not provoke excessive entanglement between government and religion.

For more than 50 years, the Court has followed a strict separationist line, striking down things ranging from school prayer to the teaching of creationism in public schools to the displaying of a Nativity scene on public property.

The Court’s newest Justice, David Souter, will be playing a pivotal role in any new steps taken toward accommodating more religion in public life.

“We now have an unknown Justice replacing one of the strict separationists on the Court, so it is quite conceivable that in the next few months, the Court could radically alter the way we have viewed the establishment clause in American constitutional law,” said Oliver Thomas, general counsel at the Baptist Joint Committee.

Differing Opinions

Thomas, who takes a separationist stance, is concerned about potential changes in establishment law. “What we’re likely to see in this Court is the kind of deference paid to state legislatures and city councils that we’ve seen in the abortion area,” he said, referring to the Court’s Webster decision, which allowed states to restrict abortion. “It’s troubling to see that because it puts religion up for a popularity contest.”

Another separationist, Robert Maddox, executive director of Americans United for the Separation of Church and State (AU) believes the Court is simply “reflecting the shifting mood of the country” toward more government accommodation of religion. Religious groups, particularly evangelicals, he said, are moving in that direction. Maddox, a Baptist minister, said that shift is especially evident among many Adventists and Baptists, who are moving away from traditional separationist views.

However, Richard Land, executive director of the Southern Baptist Christian Life Commission, (CLC) said a true “historic Baptistic view” is not necessarily strictly separationist: “We would feel far freer to bring our faith perspective into the public debate and allow others to do the same … than would the strict separationist position.”

CLC general counsel Michael Whitehead said he believes the desirable relationship between church and state would be one of “healthy respectful interaction,” but “never mutual dependence or dominance of one over the other.” But he acknowledged not all of his Baptist brothers and sisters agree.

Forest Montgomery, counsel to the National Association of Evangelicals’ Office on Public Affairs, disagrees that there has been a shift among evangelicals. “Evangelicals have always been willing to allow more accommodation between church and state than [the strict separationists],” he said. “I believe among evangelicals, the thinking is that the Court has carried the establishment clause way too far, and a rethinking is long overdue.”

Nowhere will the practical effects of this debate be felt more deeply than in discussions about public and private education. The cutting edge in the near future will be over the constitutionality of tax credits for parents who send their children to church schools and government vouchers for parents to use to help pay for tuition at private religious schools or childcare centers.

Thomas and Maddox say vouchers and tax credits violate the establishment clause. “What you can’t do through the front door [with direct government grants], you shouldn’t be able to do through the back,” Thomas said. Added Maddox, “It is direct aid, and it makes churches become dependent on the government dole.”

Land and Montgomery disagree. “If the money is given to a parent and the parent then decides to use it at a Baptist school, a Jewish school, or an atheist school, that is the parent’s decision and not an unnecessary entanglement of the church and state,” Land said. Montgomery said it is no more establishment of religion than when a government employee contributes part of his or her paycheck to a church.

The Court has so far scheduled no major church/state cases, so changes will probably not occur before the bicentennial celebrations begin. But the debate has already elicited heated discussions, leading many to wonder if after 200 years, the First Amendment is headed for turbulent times.

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