Court's Decisions On Religion Provide Hope And Concern
Nathan J. Diament

by Nathan J. Diament
Director, Institute for Public Affairs -- Union of Orthodox Jewish Congregations of America

The United States Supreme Court has just concluded its 1996-1997 term with a flurry of activity. In its last week it ruled on over a dozen cases affecting everything from assisted suicide, trading securities on insider information, indecent material on the internet and handgun control. While all of these decisions are of importance to the Jewish community, perhaps none were more closely watched than this term's cases involving the relationship between religion and state. In Agostini v. Felton, the Court reversed a twelve year old decision that had prohibited public school teachers from teaching secular remedial education classes in parochial schools. While the 1985 decision had ruled such a program to be an unconstitutional establishment of religion, the Court recognized last week that its interpretation of "Establishment Clause law has significantly changed since" ruling on the issue twelve years earlier. This decision was met with mixed reactions in the Jewish community with advocates for greater accommodation for religion welcoming the decision and advocates of strict separation voicing concern over the Court's intention to lower the "wall of separation" between church and state.

Two days later, the Court handed down its decision in City of Boerne v. Flores, in which it struck down the Religious Freedom Restoration Act. That statute, known as "RFRA," had been passed with overwhelming support from religious groups, civil liberties advocates and garnered a 97-0 vote in the U.S. Senate. RFRA required that a federal, state or local government could not enforce a law or regulation that burdened a person's exercise of religion, even unintentionally, without demonstrating that the law was in furtherance of a compelling governmental interest. The Court's decision in this case was met with universal dismay from all religious groups, whether politically conservative or liberal. Still, despite the terrible outcome in Flores, one which appears to subject religious observance to the uncertainties of the political process, it can certainly be argued that the Flores decision had little to do with religion. What clearly animated the Court were issues of separation of powers and federalism. The Justices' opinions speak little of the Free Exercise Clause and largely of the Court's role as the final arbiter in our government of constitutional interpretation and that Congress exceeded its powers in passing RFRA. In short, religious liberty was caught in the midst of a power struggle between our federal judiciary and legislature.

Nevertheless, one can read Agostini and Flores together, as religion cases, and construct a thematic interpretation of what the Supreme Court is currently thinking about the role and rights of religious institutions and individuals in American society. For better and for worse, the Court may be moving away from its long-standing position of insisting upon the state's neutrality toward religion toward the theme of the equality of religion among the many communities of interest within the state.

For decades, the theory of the "religion neutral state" has dominated religion law jurisprudence. Thus, in the Establishment Clause context, anything that was even perceived as government support of religion -- from the loan of instructional materials to, as in the original Agostini case, the provision of public school remedial education teachers to parochial schools -- was disallowed lest it compromise the secular character of the state. In the Free Exercise Clause context, the neutrality theory insisted that the state had to avoid burdening a citizen's religious practice, even unintentionally. Thus, Jehovah's Witnesses were declared exempt from pledging allegiance to the flag and the Amish exempt from formally schooling their children.

In recent years, advocates before the Court have contended that the Establishment Clause is not designed to deprive religious individuals and institutions of government benefits or opportunities that are afforded other, secular institutions. The Court began to accept this line of thinking in 1993, when it permitted a deaf student's state supplied sign language interpreter to accompany him to parochial school; since the state afforded such assistance to all deaf students, a qualifying student who happened to attend a parochial school should not be unequally barred from receiving such assistance. Also in 1993, the Court ruled that a public school that permits student clubs to use its facilities after school hours could not bar a religious group from enjoying this privilege as long as it met the same eligibility criteria as the non-religious groups. And, in 1995, the Court ruled that a state university that provided funds to student organizations on the basis of set requirements must provide funds to a religious student newspaper that met those requirements. Although these precedents were in place, it was only last week, in Agostini that the Court tied them all together. In writing for the majority, Justice O'Connor stated that "where aid is allocated on the basis of neutral criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis," the Establishment Clause is not violated.

Inasmuch as the Establishment Clause has been read in Agostini not to disable religious citizens and institutions from equally benefiting for a government benefit, the Court in Flores implicitly read the Free Exercise Clause not to require any special, unequal protection for religion either. Thus, the city's historic preservation law that might prevent a bank from expanding its building so that it may serve more customers applies equally to the historic church and prevents it from expanding to serve more worshipers. Under this view, the Free Exercise Clause merely ensures that government may not intentionally legislate a burden upon religion; otherwise neutral laws may equally hamper the activities of the religious along with the secular.

Of course, the equality principle as applied to both the Establishment and Free Exercise clauses is troubling since it is neither what the framers intended nor does it appreciate the unique role and character of religion in our society and in people's lives; in short, it is only half right. The religion clauses were intended to ensure an America where religion, many religions in fact, flourish. Thus, the Establishment Clause prohibits the state from favoring one religion over another, but never contemplated that secularism must be favored over faith. The Free Exercise Clause demands that government "make no law" that might burden the ability of a believer to fully practice his faith. Just as the Court has invoked the First Amendment's injunction to "make no law ... abridging the freedom of speech" to aggressively strike down many laws that burden speech even incidentally (including this term's decision voiding Congress' attempt to limit indecency on the internet), we expect the Court to read the same solicitude for religious practice into the Free Exercise Clause found in the same First Amendment. This term's religion decisions, taken together, provide a mixture of hope and concern to our community. They are certainly not the last word from the Court, we will make certain of that.