IFAS | Freedom Writer | June/July 1993 | court.html

Inside the Supreme Court

By Barbara Simon

This term the Supreme Court heard arguments on three cases involving church/state separation and the First Amendment. These cases turned on the Court's interpretation of the First Amendment's Establishment, Free Exercise, and Free Speech clauses. One of t hese cases has already been decided. The other two cases will be decided any day now.

Standard of review for Establishment Clause cases

In determining whether a governmental practice is violative of the First Amendment's Establishment Clause, the Court has utilized a standard of review codified in its Lemon V. Kurtzman (1971) decision. The Lemon test is a three-pronged inquiry. The three prongs are the purpose prong: does the legislation have a legitimate secular purpose?; the effects prong: does the legislation have a primary effect that neither advances nor inhibits religion?; and the entanglement prong: does the legislation exce ssively entangle government with religion? If the governmental action fails to meet any of the three prongs, the governmental action is violative of the Establishment Clause and therefore unconstitutional.

Establishment Clause case

The case which turns on the Establishment Clause is Zobrest V. Catalina Foothills School District. The issue raised by Zobrest is whether the State may refuse to pay for a deaf child's sign language interpreter in a parochial school. The sch ool district has successfully argued in the U.S. District Court and in the U.S. Court of Appeals (9th Circuit) that permitting a government-funded interpreter to work in a Catholic school would have the primary effect of advancing religion by constituting public aid to a religious institution, which violates the effects prong of the Lemon test. It was also held that paying for the sign language interpreter in a Catholic school would create, in the eyes of Zobrest's Catholic schoolmates, a "symbolic union" of church and state, which violates the entanglement prong of the Lemon test.

The Court's decision will rest upon its characterization of the nature of educational support provided by a sign language interpreter. Since 1947, with the decision in Everson V. Board of Education, the Court has been asked to determine which types of educational support services to parochial schools are permissible under the Constitution's Establishment Clause. The Court has found that a Title I program administered by the New York City Board of Education, where public school teachers were sent in to parochial schools to teach remedial reading, reading skills, remedial mathematics, and English as a second language, and to provide guidance services, is impermissible under the Establishment Clause [Aguilar v. Felton (1985)] on the basis of exc essive entanglement of church and state in the administration of the program. The Court has also held that the loan or purchase of instructional equipment and materials to or for parochial schools [Board of Education v. Allen, Meek v. Pittenger, and Wolman v. Walter] has the primary effect of providing a direct and substantial advancement of religion, which also violates the effects prong of the Lemon test.

On the other hand, the Court may find that utilizing taxpayer money to pay for the sign language interpreter in a parochial school setting is constitutional because it is more closely akin to providing bus transportation [Everson] or secular textbooks [Allen, Meek, Wolman], which the Court has held to be permissible governmental expenditures. The Zobrests argue that the primary effect of denying funding for an interpreter, solely on the basis of the school's Catholic values, while allowing such funding at a public school, would be to inhibit Zobrest's religion. The school district argues that, like the New York City Title I program, the Catholic school's twin goals of advancing religious values and providing a secular education are so intertwined that any publicly paid employee placed in this atmosphere would be facilitating the school's religious, as well as educational, mission. Therefore, the school district argues, the interpreter should be viewed as akin to the New York City Title I teachers and instructional materials that the Court had previously barred local governments from providing to parochial schools on the basis that these teachers and items "potentially could be subverted to religious purposes" (Aguilar).

We predict that this Court will find the sign-language interpreter to be akin to the New York City Title I case. In that case, the public school teachers were supposed to teach secular subjects, but the pervasive religious nature of a parochial school was thought to impact the secular message of these teachers. In the Zobrest case, the sign-language interpreter spends a good part of her day furthering the message of Catholicism. To subsidize her position would be tantamount to subsidizing religion.

Standard of review for Free Exercise Clause cases

The Court's standard of review for determining whether a governmental practice violates an individual's free exercise of religion can now be summarized in one sentence, excerpted from the majority opinion in Employment Division V. Smith (1990) writ ten by Justice Antonin Scalia: "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the state is free to regulate." The Smith decision abandoned a longtime Court precedent, established in Sherbert v. Verner (1963), holding that the government must demonstrate a "compelling interest," or a clear public necessity, in order to restrict religious exercise.

Congress is currently working on a measure, the Religious Freedom Restoration Act, to reverse the impact of the Smith case. The Act, which is backed by more than 51 civil rights and religious groups, is intended to return to the compelling governmental interest standard of review.

Free Exercise Clause case

The Church of The Lukumi v. Hialeah concerns a Hialeah, Florida city ordinance forbidding the ritual or ceremonial killing of animals, while permitting such means of ending animals' lives as hunting, commercial slaughter, pest control, and euthanas ia for sick pets. The Court will decide whether this ordinance violates the church's right to free exercise of religion.

Arguing on behalf of the Church on November 4, 1992, Professor Douglas Laycock stated that "[t]his case is about open discrimination against Santeria, a minority religion," and that the prohibition was adopted for "the express purpose of preventing the ce ntral ritual of this faith." Professor Laycock argued that even under the Smith standard of review, the Church of the Lukumi's acts are protected because "[y]ou have to treat religious acts" in no more harsh a manner than "analogous secular acts." Laycock then pointed out that under the Hialeah law you can kill animals for any reason except that of animal sacrifice.

Richard G. Garrett, arguing on behalf of the city of Hialeah, said that the ban on animal sacrifices was aimed not at suppressing religion, but at curbing conduct that poses a threat to public health. He said that followers of Santeria mistreated the anim als and failed to dispose of the carcasses in a sanitary manner.

We predict that the Court will find for the Church of the Lukumi because, as Professor Laycock pointed out, the state must treat religious acts in no harsher a manner than analogous secular acts. If the city of Hialeah is concerned about the sanitary disp osal of animal carcasses, it can craft ordinances that are more narrowly tailored to meet its desired goals.

Standard of review for Free Speech Clause cases

Because free speech is an enumerated fundamental right found in the First Amendment, a governmental regulation, other than reasonable time, place, and manner restraints, must satisfy strict scrutiny, which means that the governmental regulation must bear a necessary relationship to the achievement of a compelling governmental purpose with no less restrictive means available. Nonetheless, different types of speech receive varying standards of review. Political speech receives the greatest degree of protect ion, offensive speech receives less protection than political speech; and obscene speech is entirely outside of the protection of the First Amendment.

In this case, we are dealing with religious speech. Religious speech, like political speech is highly protected. Generally speaking, if there is a content-based regulation, the Court will apply strict scrutiny and the government must demonstrate a compell ing governmental interest and the absence of narrower alternative means. The school district in the Lamb's Chapel v. Center Moriches Union School District case elected to eliminate all religious speech from the forum it had created. The Court found that the First Amendment's guarantee of free speech prohibits governments from discriminating against the expression of certain viewpoints on the basis of content. Once a forum is opened to the community, a school district may not eliminate a certain kin d of speech from the forum.

Free Speech Clause case

The Lamb's Chapel case, decided on June 7, 1993, raised the issue of whether free speech principles were violated by a policy that permitted civic groups, but not religious groups, to use a public school auditorium after school hours. Lamb's Chapel, an ev angelical Christian church, sought to make use of the Center Moriches Union Free School District's public school facilities after school hours. The school district, which permitted other civic groups to use the school facilities after school hours, denied the church's request because it would be utilizing the public school for a religious purpose. In a 1992 U.S. Court of Appeals (2nd Circuit) decision, the court upheld a lower federal court decision favoring the school district because state education law restricted the use of public school facilities for nonreligious purposes, and because the school district's prohibition was valid provided that it did not selectively deny access to certain expressions within any category of speech eligible to use the fo rum. In a 9-0 decision, the Court reversed, and found for the religious group by holding that the First Amendment's guarantee of free speech prohibits governments from discriminating against the expression of certain viewpoints on the basis of content.

In a sense, the Lamb's Chapel decision is the natural evolution of the Equal Access Act of 1984, whose constitutionality was upheld in Mergens V. Board of Education of the Westside Community Schools (1990). The Equal Access Act requires publ ic high schools, who have created a voluntary limited public forum by permitting non-curriculum-related student groups to meet on the school premises after school hours, to permit all student-initiated groups, including Bible and prayer groups to meet on school premises. The Court found that to exclude religious expression was violative of the constitutional guarantee of free speech.

© 1998 Institute for First Amendment Studies, Inc.