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Debating Church-State Relations and Related Free-Speech Issues

Supreme Court Report: The Wavering Line
Swing votes make the difference in two church-state cases

By David Savage
David Savage covers the Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

This analysis first appeared in the ABA Journal (August 2000): 36.

A pair of Establishment Clause decisions in June found the Supreme Court still in search of a clear line that separates church and state.

Three swing justices pushed the Court in a liberal, then a conservative, direction. On June 19, the Court soundly rejected student-led prayers in the public schools. Then on June 28, the Court cleared the way for more public aid to flow to parochial schools.

The 6-3 decision in Santa Fe Independent School District v. Doe , 120 S.Ct. 2266, 2000, concluded that school officials in Santa Fe, Texas, crossed the line when they decided to hold an annual senior class election on whether to have prayers at football games and other school events.

The small school system in a predominantly Baptist area near Galveston had adopted the policy of student elections after it was sued by two parents for injecting religion into school affairs. Last fall, Marian Ward, the daughter of a local Baptist minister, led the prayers at the home football games.

“School sponsorship of a religious message is impermissible,” Justice John Paul Stevens wrote for the Court, “because it sends an ancillary message to members of the audience who are nonadherents that they are outsiders.”

Lawyers for the school district said the election allowed students to choose whether to pray. However, the election itself violates the Establishment Clause, Stevens said, because it puts a religious question to a majority vote, and is likely to “encourage divisiveness along religious lines.”

The decision halts a movement among Christian legal advocates to recast the school prayer issue as one of free speech for students, rather than an official establishment of religion.

Stevens stressed that students may pray privately on their own or with friends before, during or after school. But a student delivering a prayer over the microphone at a school stadium is not private speech, he said.

Narrow Application

The ruling focuses only on prayers at football games, but the broad opinion reads as though it would forbid all school-sponsored invocations. Still, it would not prevent a student speaker such as a valedictorian from deciding on his or her own to discuss religious faith.

In his dissent, Chief Justice William H. Rehnquist said the Court’s opinion “bristles with hostility to all things religious in public life.” He was joined by Justices Antonin Scalia and Clarence Thomas.

A different 6-3 lineup ruled in Mitchell v. Helms , 120 S. Ct. 2530, 2000, that federal funds can be used to buy computers and other instructional equipment for use in both public and parochial schools. This time, the liberal Stevens was in the minority and the conservative Thomas decried hostility to religion in his plurality opinion.

Still, Court watchers who read the opinion for hints on whether the justices would one day uphold school vouchers are left with no clear answers. The issue is likely to come before the Court soon because several states are giving some parents public aid to send their children to private schools.

Four members of the Mitchell plurality, led by Thomas, said they were willing to allow a free flow of aid to parochial schools on a neutral basis. Because the government sought to further education-not religion-it did not matter whether the schools had a religious mission, said Thomas.

Indeed, excluding parochial schools would reflect a kind of religious bigotry, he added.

“Hostility to aid to pervasively sectarian schools has a shameful pedigree,” Thomas said. It flared in the late nineteenth century “at a time of pervasive hostility to the Catholic Church and to Catholics in general.” Rehnquist, Scalia and Justice Anthony M. Kennedy joined the opinion, which could have worked a major change in constitutional law.

However, Justice Sandra Day O’Connor balked. She termed Thomas’s open-ended approach “troubling” and agreed to uphold the federal aid on narrow grounds.

The lending of computers is not in violation of the Establishment Clause, she said, because “no funds even reach the coffers of religious schools.” And, she said, publicly funded equipment cannot be used for teaching religion.

Justice Stephen Breyer joined O’Connor’s concurrence in the case.

Justice Kennedy was the biggest swing voter, though. He went from the liberal majority in the prayer case to the conservative plurality in the computer case.

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