Culture, Controversy and the Supreme Court

Europe’s religious conflicts were the background for America’s formation, so it shouldn’t be surprising that our national history has been substantially shaped by religious passions: broadly, as religiously-based concerns over social justice have…

Europe’s religious conflicts were the background for America’s formation, so it shouldn’t be surprising that our national history has been substantially shaped by religious passions: broadly, as religiously-based concerns over social justice have influenced the development of social policies; and more narrowly, as we deal with the persistence of our own brands of Puritanism.

Elsewhere in this issue are articles reflecting upon America’s peculiar approach to the intersections of church with state, and the ways in which the doctrine of separation has reduced certain tensions while exacerbating others. Some things have changed, some haven’t: we are still dealing, in 1997, with the fundamental conflict between those who believe that obedience to their God requires the use of the authority of government on behalf of "the good," and those who believe with equal fervor that religious authenticity is impossible unless the state is kept strictly neutral in matters affecting personal conscience.

The growth of government at all levels has "raised the ante" in these conflicts. When the operation of the state is intertwined with your daily life, the policies the state pursues are more likely to affect you. Prayer in the public schools wasn’t an issue before we had public schools; whose religious holidays receive state sanction was of less concern when state employees were fewer in number (and more homogenous). With the growth of government has come a corresponding growth in religion-based conflict.

The contemporary "culture wars" at their base are really religious wars, fought not with weapons (with the exception of the murder of abortion doctors and similar acts) but in the media, in our legislative bodies, and ultimately, in the courts.

In the session just ended, the United States Supreme Court handed down two highly significant cases involving the First Amendment’s religion clauses. In City of Bourne v. Flores, the Court invalidated the Religious Freedom Restoration Act. In Agostini v. Felton, it used a novel (and to lawyers, troubling) procedural device to overturn a prior ruling limiting the amount and type of remedial assistance public schools could offer to parochial school students. Both cases provide more than an instructive look at the law–they are examples of the social conflicts that continue to consume an inordinate amount of our national time and energy.

The Religious Freedom Restoration Act (or RFRA to the cognoscenti) was passed in response to an earlier, much criticised, ruling in Dept. of Human Resources of Oregon v. Smith. There, the Court had refused to exempt Native Americans from generally applicable drug laws that effectively criminalized the ritual, religious use of peyote. The Court did not question the legitimacy of the religious practice involved; however, it ruled that the free exercise clause did not confer a right to be free of a legal burden that was generally applicable and not aimed at any particular religious belief. The Court acknowledged that beliefs are protected, but held that conduct may be regulated by the state.

There was general outrage at the decision. An improbable coalition of religious and civil liberties groups coalesced around the issue and in 1993 obtained passage of RFRA–in essence, legislatively overruling the Court. RFRA prohibited government interference with religious practices unless a "compelling" reason existed. Under RFRA, if a law of general application imposed an "undue burden," on the exercise of religion, that law would not apply.

Enter the Catholic Archbishop responsible for a congregation in Boerne, Texas. The church wanted to expand; local historic preservation law blocked the expansion, which would have obliterated the historically significant church structure. The Archbishop sued, claiming that the preservation law constituted an impermissible burden under RFRA. The Supreme Court responded by striking RFRA down, on the grounds that enactment of the law exceeded Congressional authority.

While the legal basis of the decision is rooted in long-standing doctrine governing separation of powers, the reaction has been immediate and highly negative. The New York Times quoted law professors who predicted that Catholic hospitals would be forced to perform abortions, and that Hindu and Muslim girls would be forced to wear "immodest" gym clothing against their religious beliefs. A statement by the American Jewish Congress expressed concern that "wearing a yarmulke on a job, time off for religious holidays, are unpredictable because there is no way to tell how states and localities might enforce laws." Constitutional pundits suggested that the Court was sending a message of its own: don’t try to overrule us. After all, the Court could simply have found that the application of a land use regulation–here, a historic preservation law–did not pose an undue burden. This would have achieved the same practical result but would have left RFRA in place. Other commentators reviewed First Amendment case law and pointed out that the Court has historically been more concerned with the Establishment Clause than the protection of Free Exercise.

The same week the Court struck down RFRA, it overturned a 1985 case, Aguilar v. Felton. In that case, the Court had considered a program of the New York City school system in which public school teachers provided remedial education to disadvantaged children in parochial schools under Title I of the Elementary and Secondary Education Act of 1965, and concluded that the efforts created an excessive entanglement of church with state. The Court required the City to transport the children off-site in order to provide the remediation. Ten years later, the parties to that suit filed a motion to overrule it, citing the costs of compliance and intervening, inconsistent rulings. The Court overruled Aguilar and held that providing remedial services to which children are otherwise entitledon the premises of a parochial school does not violate the Establishment Clause. (By far the most troubling aspect of this case to most constitutional lawyers is the procedural mechanism used to obtain, essentially, a reconsideration of the initial ruling. If parties can run back to the Court whenever they think a change in the Court’s philosophy or personnel will give them a different result, what happens to the stability of the law? But that is the subject of a different essay.)

This case also generated a great deal of speculation about the improved climate for vouchers, most of it unwarranted by the language of the opinion, which strongly suggests the continued invalidity of cash payments to parochial institutions.

In both cases, the Supreme Court attempted to balance competing principles: in our system of enforced state neutrality, government may neither benefit nor burden religion. This is a simple enough principle, but the devil, as the old saying goes, is in the details.

If a public health authority is immunizing children in the first grade, does the First Amendment’s Free Exercise clause require that all children in all schools receive the shots? Or does the Establishment Clause require that the immunizations not be provided on parochial school grounds? If the purpose is to further public health, and the program is paid for and administered by the state, doesn’t a refusal to come to certain schools burden parents who choose to send their children to a religious school? Isn’t this fundamentally different from providing parochial schools with textbooks or stipends, or from teaching creationism or prayer in the public schools?

These aren’t easy lines to draw, and people of good will differ over the application of First Amendment doctrine in such cases. The application of drug laws to Native Americans seems egregious; but most of us would draw the line at ritual murder. The Court previously allowed states to outlaw polygamy without generating a firestorm, although commentators have increasingly questioned the basis of that opinion. If religious institutions are to be beyond the reach of the zoning laws that apply to everyone else, have we not gone considerably farther than keeping government from infringing? Have we perhaps "established" churches, mosques and synagogues as preferred organizations?

These are important questions–not just for lawyers and clerics, but for others concerned with respect for the individual conscience in a highly regulated society. How do we balance our obligations to public health and safety with our even more compelling obligation to respect individual rights?