IFAS | Freedom Writer | September/October 1999 | court.html

Supreme Court
church/state update

Prior to its opening day, the October 1999 US Supreme Court's docket appeared to be chock full of church/state cases. At press time, the Court has only one church/state case on its decision docket. One other church/state case is still pending.

Scheduled for argument on December 1, 1999 is Mitchell v. Helms No. 98-1648 in which the Court is to decide whether the Constitution permits public schools to use taxpayer funds to provide computers and other instructional equipment to religious schools within the district. A 5th Circuit Federal appeals court declared this practice unconstitutional.

The other case, which is still pending, comes from Texas (Santa Fe Independent School District v. Doe No. 99-62) and addresses the issue of student-led prayer in the context of high school graduations and high school football games. In 1992, the Court in Lee v. Weisman held that the Constitution's Establishment Clause bars public school officials from inviting a member of the clergy to pray at a graduation ceremony.

Now the Justices are being asked to decide whether the same analysis applies to student-led prayer. Courts around the country are coming up with different answers. In this Texas case, the Federal appeals court held that student-led prayer at graduation is acceptable as long as the prayers were nonsectarian and nonproslytizing, but that prayers at football games an occasion lacking the "singular context and serious nature of a graduation ceremony" were unconstitutional, no matter what their content. In a case from Alabama, the US Court of Appeals for the 11th Circuit ruled that school districts were not only free to permit student-led prayers, but obliged to do so, at football games, graduations and other occasions, for if they did not, forbidding religious speech would be "the most egregious form of content-based censorship." Because there is a conflicting ruling, it becomes more likely that the Court will accept the case. Conflicts in rulings among the lower courts are one of the major criteria for Supreme Court review.

The five cases the High Court chose not to accept were closely watched by advocates on both sides of the church/state debate. Because the cases were not accepted and decided, no legal precedents have been set. However, until a question is decided by the Court, the ruling of the highest lower court prevails, and is the applicable law within that jurisdiction.

On the Court's opening day, it decided not to accept the appeal of an Arizona taxpayers group challenging a program that provides a $500 tax credit to those who want to support parochial schools (Kotterman v. Killian No. 98-1716). The program allows Arizona taxpayers to contribute up to $500 per year to a new form of charity called a School Tuition Organization. This organization makes grants to students attending private schools. So far, ten School Tuition Organizations have been set up. The program requires that as long as the organization provides grants to students attending more than one school, it is free to limit its grants to those attending religious schools, or even one religious denomination. Eight of the ten School Tuition Organizations make grants exclusively to religious schools. The Arizona supreme court ruled in a 3-2 vote that the tax credit did not violate the Constitution because it "does not prefer one religion over another, or religion over nonreligion." As a result of the Court's refusal to hear this case, taxpayers may still receive a tax deduction up to $500 per year for their support of religious schools through Arizona's School Tuition Organizations.

On October 12, 1999 the Court decided not to accept four other church/state cases. Two were from Maine, based upon the Maine Legislature's decision to omit religious schools from a longstanding program of paying tuition for students in districts that do not have their own high schools. The appeals of Bagley v. Raymond School Department No.99-163 and Strout v. Albanese No. 99-254 asked the Court to view the tuition program not as direct state aid to the religious institutions, but as neutral, indirect aid that allows the private choice of individual parents to control. As a result of the Court's refusal to hear the cases, Maine's decision not to pay tuition for students going to religious schools has been upheld.

In refusing to hear an appeal (Pataki v Grumet No.98-1932) from Kiryas Joel, a Hasidic village in upstate New York, the Court decided not to revisit its 1994 decision, which declared the New York State legislature's decision to create a special public school district exclusively for the special needs students of Kiryas Joel unconstitutional. Even though the Supreme Court has, in effect, struck down New York's special legislation, many in the village of Kiryas Joel are optimistic. This past August a new New York law relating to the creation of special school districts was passed and signed by Governor Pataki which was intended to help the Kiryas Joel school district pass constitutional muster, as the law expands the criteria by which new school districts can break away from existing ones.

The last of the four appeals that the Court refused to hear was Pennsylvania v. Newman No. 99-154, which had the effect of affirming the Pennsylvania Supreme Court's decision that Pennsylvania's state tax exemption for Bibles, religious articles, and for "religious publications sold by religious groups" was unconstitutional. This ruling may leave other states with similar tax exemptions open to challenges.

Trying to decipher what the Court may mean by its decision to reject five of the seven church/state cases brought before it this term may prove to be an exercise in futility. The Court grants review to approximately 2% of the cases that come before it. In response to the October 12th decision of the Court not to review four of the church/state cases before it, Barry W. Lynn, executive director of Americans United for Separation of Church and State, stated, "The Supreme Court has repeatedly ruled that there must be a distinct separation between religion and government, and the Justices today see to be in no mood to move those boundary markers. That's good news for everyone who thinks the government ought to stay out of religious matters."

© 1999 Institute for First Amendment Studies, Inc.