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. …