Reshaping the Wall
Sitomer, Curtis J., The Christian Science Monitor
THE wall of separation between church and state is being refashioned by a new judicial philosophy.
While recent United States Supreme Court rulings do not seem out of line in their outcomes, the legal concepts by which the court's majority arrived at these decisions represent a sharp change from the past. In cases involving school Bible clubs and religious ceremonies of American Indians, the justices have departed from longtime precedents interpreting the First Amendment's Establishment and Free Exercise clauses.
This new reasoning, if carried to extreme by a conservatively controlled court, could eventually lead to allowing prayer in the public schools; opening the door to government subsidy of parochial institutions; and further restricting the practice of religion, particularly by minority denominations.
All these effects are inconsistent with the great tradition of religious liberty in the United States.
The high court's finding, which upholds the constitutionality of Congress's 1984 Equal Access Act, permits students to hold religion-related meetings on high school campuses as part of a school's extracurricular program. The case in point involved a group of secondary-school students in Omaha, Neb., who brought suit against their school district after they were denied official recognition as a Christian Bible club.
The students claimed that their free speech rights were being set aside. School officials countered that, under federal law, they could deny the Bible club access to the campus, since its purpose was not curriculum-related.
Ruling for the students, the high court agreed eight to one that the Equal Access Act does not violate the Establishment Clause in the US Constitution because it does not coerce religious activity or unlawfully advance religion in the public schools.
The court was splintered in its analysis, however, with Associate Justice Sandra Day O'Connor writing for a plurality and holding that a school could ban all activities not related to the curriculum. In so doing, she said it would not be permitted to discriminate on the basis of religious, philosophical, or political points of view.
Associate Justices William Brennan Jr. and Thurgood Marshall - usually staunch advocates of separation of church and state - voted with the majority in upholding the 1984 congressional statute. But the high court's most liberal twosome said that this act was constitutional only if school officials distanced themselves from religious clubs' speech so as not to appear to endorse it.
Justices Anthony Kennedy and Antonin Scalia had no objection to such endorsement if it was not coercive and if the club's activity furthered the intellectual development of the students. …