IFAS | Freedom Writer | July/August 1997 | court.html

Court rules on separation cases

By Barbara A. Simon, Esq.

Agostini v. Aguilar

In the case of Agostini v. Aguilar the Court reversed itself and overturned its 1985 decision of Aguilar v. Felton, which had prohibited public school teachers from teaching special federally financed remedial classes on the pre mises of parochial schools. These programs were, at the time, viewed by the Court as advancing religion and fostering an excessive entanglement between government and religion.

The Court held that the state-paid teachers would be "influenced by the pervasively sectarian nature of the religious schools in which they work," and would therefore, subtly or overtly indoctrinate students with particular religious views at taxpayer exp ense. The symbolic union of church and state inherent in the provision of secular, state-supported instruction in religious school buildings "threatens to convey a message of state support for religion."

Additionally, the program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to insure that they do not inculcate religion. Furthermore, religio us school students may well perceive a "joint enterprise" between their religion and the state.

For the past twelve years Aguilar v. Felton has been the law of the land. This term the Court reversed itself. Justice O'Connor delivered the opinion of the Court in Agostini v. Aguilar and in it explained why the Court reversed itself. "First, we have abandoned the presumption erected in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or co nstitutes a symbolic union between government and religion."

Justice O'Connor went on to cite the Court's 1993 decision in Zobrest in which the Court permitted a deaf student to bring his state-employed sign language interpreter with him to his Roman Catholic high school. Justice O'Connor continued, " Second, we have departed from the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid."

To support her assertion Justice O'Connor described the Court's 1986 Witters case, which held that the Establishment Clause did not bar a state from issuing a vocational tuition grant to a blind person who wished to attend a Christian college and become a pastor, missionary, or youth director. In that case the Court held that the grants were "made available generally without regard to the sectarian-nonsectarian or public-nonpublic nature of the institution benefited."

O'Connor concluded that in both the Zobrest and Witters case "any money that ultimately went to religious institutions did so 'only as a result of the genuinely independent and private choices of' individuals and that based upon those cases Aguilar "will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination." Justice O'Connor wrote, in effect, that because Establishment Clause law had been changed by the Court during the i ntervening twelve years, it was entirely appropriate to reverse the 1985 Aguilar decision.

Justice Souter saw the case differently. In his dissent, he wrote: "The human tendency, of course, is to forget the hard lessons, and to overlook the history of governmental partnership with religion when the cause is worthy, and bureaucrats have programs . That tendency to forget is the reason for having the Establishment Clause (along with the Constitution's other structural and libertarian guarantees), in the hope of stopping the corrosion before it starts.... What was true of the Title I scheme as stru ck down in Aguilar will be just as true when New York reverts to the old practices with the Court's approval after today. There is simply no line that can be drawn between the instruction paid for at taxpayers' expense and the instruction in any subject that is not identified as formally religious."

Proponents of school vouchers for parochial schools are hopeful that Agostini v. Aguilar will pave the way for the Court to uphold the constitutionality of school vouchers.

Religious Freedom Restoration Act

In the case of the City of Boerne v. Flores (see earlier story), the Court invalidated the Religious Freedom Restoration Act. The Religious Freedom Restoration Act (RFRA) was an attempt by Congress to give religious observance a higher level of protection than the Court previously ruled was necessary under the Constitution.

The RFRA had united even the most disparate religious communities a truly rare occurrence from fundamentalist religionists to liberal religionists. Now that it has been struck down, an effort is under way to counter its effect.

RFRA was drafted and passed as a response to the Supreme Court's 1990 decision in Employment Division, Department of Human Resources v. Smith. In that case, the Court held that a state could withhold benefits from employees terminated from th eir jobs for the use of peyote, a controlled hallucinogen. The employees had used the peyote in the sacramental rituals of the Native American Church and sought exemption from the decision on Free Exercise grounds. The Court ruled that, while the state l egislature could have established such an exemption, the Free Exercise Clause did not require it.

Justice Scalia, writing for the majority, stated: "We have never held," that an individual's beliefs excuse him from an otherwise valid law prohibiting conduct that the state is free to regulate." Provided that religion is not itself the object of the reg ulation, and any burden on the Free Exercise is "merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment had not been offended." The Court continued by stating that to permit individuals to exempt themsel ves from such regulation would make professed doctrines of religious belief superior to the law of the land," and in effect "permit every citizen to become a law unto himself."

Prior to the 1990 Smith decision the Court's standard of review for Free Exercise was that when governmental action placed a burden on an individual's Free Exercise of religion, the government had to meet the highest standard of review, that of strict scr utiny, which requires the government to demonstrate a compelling state interest, with no less restrictive means available to achieve the governmental interest. Unhappy with the lower standard of review employed by the Court in Smith, Congress passed RFRA which was intended to restore the highest level of constitutional protection to religious exercise, in effect, reversing Smith.

The majority opinion in Boerne, penned by Justice Kennedy, said that while Congress had the power under the 14th Amendment to remedy or prevent civil rights violations, it lacked authority to make a substantive change in the meaning of the Co nstitution. Justice O'Connor, one of three dissenters, wrote that the Court should have used this case to revisit and reverse itself in the 1990 Smith decision. The other dissenters Justices Souter and Breyer agreed with Justice O'Connor's be lief that reexamining its 1990 decision through this case would have been appropriate. Religious organizations and their lobbyists are working with legislators to reverse the impact of Boerne v. Flores.

© 1998 Institute for First Amendment Studies, Inc.