When a win may not mean much

Humanist, May-June, 2004 by Edd Doerr

On February 25, 2004 the United States Supreme Court ruled seven to two in Locke v. Davey that Washington State has the right to exclude a divinity student from a state scholarship program. At first glance this would seem to be a victory for church-state separation. On closer examination, however, Locke was only a minor win that left the door open for all sorts of future mischief.

Locke was written by Chief Justice William Rehnquist, who has never been terribly fond of church-state separation. Had Rehnquist not voted with the majority and instead sided with the Antonin Scalia-Clarence Thomas minority, the ruling would probably have been much stronger and written by Justice John Paul Stevens.

Rehnquist wrote the ruling as narrowly as he could, citing the United States' more than two-centuries-old constitutional ban on the use of public funds to train ministers. He specifically noted that the ruling didn't hinge on the Washington State constitution's so-called Blaine Amendment banning tax aid to all religious schools, a provision very similar to "Blaine Amendments" in thirty-six other state constitutions. Blaine Amendments are the main state constitutional barrier to school voucher plans and are slammed by opponents of church-state separation as remnants of nineteenth-century bigotry against Catholics. (The Blaine Amendment myths are examined and debunked by Al Menendez in a long article in Voice of Reason, no. 83, 2003, published by Americans for Religious Liberty.) The Blaine Amendments ploy was first used in New York State in 1967 in an effort to remove from the state constitution the ban on tax aid to faith-based schools; New York voters rejected the effort 72 percent to 28 percent. Similarly, voters in predominantly Catholic Massachusetts voted heavily in 1982 and 1986--by 62 percent to 38 percent and 70 percent to 30 percent, respectively--to reject similar tampering with their state's Blaine Amendment.

Curiously, there was no comment in the Locke ruling or by the media that Washington State voters upheld their state's Blaine Amendment in 1975 and 1996 by margins of 60 percent to 39 percent and 64 percent to 36 percent, respectively. Just as curious is the fact that Rehnquist's ruling didn't mention the Court's 1972 decision in Brusca v. State of Missouri to uphold Missouri's right to ban tax aid to faith-based schools.

In any event, Rehnquist's ruling in Locke leaves the door open to future challenges to state constitutional provisions separating church and state. And given the Supreme Court's mistaken ruling in favor of an Ohio school voucher plan in 2002 in Zelman v. Simmons-Harris, the outlook for church-state separation isn't rosy. Whoever is elected president this coming November will undoubtedly shape the future of church-state relations in this country.

By the time you read this, the U.S. Supreme Court will have heard oral arguments in Elk Grove Unified School District v. Michael Newdow. A ruling is expected by the end of June. The case, as most people know by now, involves a challenge to the inclusion of the phrase under God in the Pledge of Allegiance, which was added by Congress in 1954 during the Eisenhower administration. In June 2002 the Ninth Circuit U.S. Court of Appeals in California ruled that inclusion of the phrase in public schools violates the First Amendment.

Understandably, the case has generated an enormous amount of interest and debate. Twenty-six amicus curiae briefs favoring inclusion of the phrase have been filed with the Supreme Court, most representing religious right groups plus two representing the United States Senate and the Bipartisan Legal Advisory Group of the U.S. House of Representatives. In addition the Bush administration filed a brief supporting the pledge phrase. Twenty amicus briefs were filed opposing the phrase, including separate briefs by the American Humanist Association and Americans for Religious Liberty. (Articles, editorials, op-eds, and all of the briefs are accessible online at pewforum.org.)

One of the more interesting amicus briefs opposing the phrase, prepared by University of Texas Law School Professor Douglas Laycock, represents thirty-two clerics (including Baptist, Church of Christ, Disciples of Christ, Episcopal, Jewish, Presbyterian, Seventh-day Adventist, United Church of Christ, and United Methodist) plus the Unitarian Universalist Association. The brief states:

   The clergy joining in the ... brief are leaders in the
   monotheistic religions that are the intended beneficiaries
   of the religious content in the Pledge of
   Allegiance. These amici don't want government
   imposing their religious beliefs on children whose
   parents teach other beliefs.

   More distinctively, these amici are profoundly
   alarmed by the many briefs arguing that the religious
   content of the pledge isn't to be taken seriously,
   and that it should be interpreted as merely
   historical, or demographic, or secular or some
   other strained theory. Such arguments attempt to
   strip the religious meanings from one of the most
   fundamental of religious propositions. The ... brief
   explains, from a religious perspective, why the
   government shouldn't request a religious affirmation
   from school children each morning, regardless
   of whether the government does or does not
   take that affirmation seriously.