Court rulings on religion - News

Christian Century, June 16, 1993

THE U.S. Supreme Court in several recent rulings has given attention to the perpetually contested borders between church and state. Acting in the midst of the public high school graduation season, the court has handed a partial, and perhaps only temporary, victory to supporters of state-sponsored prayer in the schools. At the same time, the court solidified its line of reasoning on the delicate "equal access" issue in a ruling applauded by those on both sides of the church-state separation barrier.

The two actions--one a ruling, the other a decision not to hear a case--had been closely watched by religious liberty groups. Many religious observers hoped that the high court would clear up some of the confusion that has embroiled local public schools across the country in the most heated church-state controversy since the 1962 and 1963 rulings barring Bible reading and state-mandated prayers in the schools. It didn't.

In the first of the actions announced June 7, a unanimous court held that a public school district must rent school facilities to religious groups during nonschool hours if the facilities are open to other community groups. In effect, schools are not allowed to bar only religious groups from using their facilities. The ruling in Lamb's Chapel v. Center Moriches Union Free School District broke no new ground and merely extended earlier court decisions. The court treated the case primarily as a free-speech issue rather than a church-state one, and the unanimous decision was hailed across the religious and political spectrum, from the American Civil liberties Union to Pat Robertson's American Center for Law and Justice.

In what Oliver Thomas, general counsel for the Baptist Joint Committee on Public Affairs, called the most interesting aspect of the case, Justice Byron White's majority opinion reaffirmed the court's key "Lemon test," which it has traditionally applied in determining whether a practice crosses the line and constitutes undue establishment of religion. Chief Justice William Rehnquist, thought by many to oppose the Lemon standard, appeared to side with White. The standard, named after the 1971 Lemon v. Kurtzman case, which ruled on a state salary reimbursement program for parochial school teachers, provided three-part test for deciding cases involving separation of church and state According to Lemon, a law violates church-state separation if it lacks a genuine secular or civic purpose, if its primary effect is to advance or inhibit religion, or if it fosters excessive entanglement between church and state. The test has been used since 1971.

Justice Antonin Scalia ridiculed the standard in the school-access case, writing in his concurring opinion that "like some ghoul in a late-night horror movie that repeatedly sits up in it grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys." Scalia was joined by Justice Clarence Thomas and endorsed in a separate, milder statement by Justice Anthony Kennedy. The majority's seeming endorsement of Lemon has given church-state separationists hope that despite the attacks on the standard by Scalia and Kennedy it will survive.

The BJC's Thomas suggested that the side-taking on the Lemon test in the Lamb's Chapel case may suggest that the court will not reverse the standard in Zobrest v. Catalina Foothills School District, a significant church-state case set for trial this summer. In that circumstance James Zobrest, a deaf student, requested that a state-paid interpreter assist him at his Arizona Roman Catholic high school. Public school officials denied the request largely on the basis of the Lemon criteria. Some observers expected the court to use the case as an opportunity to overturn or modify those criteria. According to Thomas, if the ruling on school access is any indication, "The Lemon standard may be with us for quite awhile."

In the second action, the court refused to hear an appeal in regard to a Texas case allowing student-initiated prayers during public school graduation ceremonies. The case, Jones v. Clear Creek Independent School District, has been used by the American Center for Law and Justice to promote prayers during the current graduation season. That campaign, following on the heels of the high court's ruling last year in Lee v. Weisman that state-sponsored prayers at graduation ceremonies are unconstitutional, has already generated a number of lawsuits.

The court's refusal to hear Jones, however, does not settle the issue nor does it set any kind of national precedent. The Weisman ruling remains the controlling law in 47 states, while Jones covers Texas, Louisiana and Mississippi, the three states under the jurisdiction of the U.S. Fifth Circuit Court of Appeals. Often the court will wait to take up an issue until there are a number of conflicting or contradictory lower court rulings--which seemed to be the case in the controversy surrounding prayer at graduation ceremonies this year.