Court Signals Change on Religion Cases : Justices Appear Ready to Dismantle Wall Between Church, State

On the first day of 1802, President Thomas Jefferson sat down to write a New Year’s greeting to a Baptist congregation in Connecticut and penned one of the most famous phrases associated with the Constitution.

“I contemplate with solemn reverence,” Jefferson wrote more than a decade after the Bill of Rights was enacted, that the First Amendment’s ban on “laws respecting an establishment of religion or the free exercise thereof” has the effect of “building a wall of separation between church and state.”

Law of the Land

Nearly 150 years later, a unanimous Supreme Court made Jefferson’s metaphor the law of the land. To preserve the wall of separation between church and state, it began striking down laws authorizing prayer recitation and Bible reading in public schools, requiring the posting of the Ten Commandments on classroom walls, providing federal aid for parochial school students and requiring the teaching of “creationism.”

Now, however, a Supreme Court majority appears ready to abandon Jefferson’s wall of separation between church and state. On the last day of its 1988 term, the court signaled a shift that may pave the way for new federal aid for day care in churches, state funding for parochial schools and perhaps the return of prayer in public schools.

Scoff at Metaphor

Legal conservatives, such as Chief Justice William H. Rehnquist, have often scoffed at “Jefferson’s misleading metaphor” as nothing more than a sign of his hostility toward religion. Rehnquist charged in 1985 that Jefferson was a “less than ideal source” for understanding the First Amendment because he was in Paris as America’s ambassador during the time when the Bill of Rights was written and ratified.

Rehnquist said that the amendment’s ban on “laws respecting an establishment of religion” merely prohibits government support for a national church or a particular religious dogma. It certainly does not require, he concluded, “neutrality on the part of government between religion and irreligion.”

Rehnquist and his four fellow conservatives on the court announced on June 29 a tentative new standard for religion cases. The justices upheld as constitutional the 1981 Adolescent Family Life Act, dubbed by critics the “chastity act” because it provides $10 million a year in federal funds to charitable groups and churches to teach teen-agers about “sexual prudence.”

In an opinion carefully worded to hold together his five-member coalition, Rehnquist supported government aid to religious institutions for this purpose, so long as there was no “substantial risk” that the money would be used to promote “a particular religious faith.”

Significantly, new Justice Anthony M. Kennedy added a concurring opinion in which he articulated a still more conservative view.

Kennedy States Views

The “religious character” of an organization should not exclude it from government aid, Kennedy said. If the government distributed money “in a neutral fashion to religious and non-religious applicants alike” for day care, teen-age counseling and perhaps even basic schooling, that would “not be unconstitutional,” Kennedy said in a statement joined by Justice Antonin Scalia.

The ruling (Bowen vs. Kendrick, 87-253) was a major defeat for the American Civil Liberties Union and religious groups such as the American Jewish Committee, which have supported a strict separation of church and state.

It was an equally big victory for the Reagan Administration and its conservative supporters. But it was overshadowed by the high court’s rebuke to the White House the same day in its ruling upholding the law establishing independent counsels to investigate governmental wrongdoing.

Lawyers who follow the court’s rulings on religion say that President Reagan may well have succeeded in moving the court toward supporting a greater role for religion in public life. But how far the court will go in this direction over the next few years, they say, depends almost entirely on Justice Sandra Day O’Connor, the court’s new swing vote.

Four liberal justices--William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens--believe in a strict separation of church and state.

The four filed a sharp dissent to last month’s ruling upholding the Adolescent Family Life Act. Adhering to the Jeffersonian view, they said that the law should have been struck down because “federal tax dollars have been used, with government approval, to support religious teaching.”

The four conservatives--Rehnquist, Scalia, Kennedy and Byron R. White--said that the law was appropriate because it served a “neutral,” non-religious purpose. The law’s aid for church groups was peripheral to its main purpose, which in this case was reducing the number of teen-age pregnancies in the United States, they said.

O’Connor voted with the Rehnquist bloc to uphold the law but added a statement taking a more tentative view. A “partnership between government and religious institutions,” she wrote, “need not result in constitutional violations,” although “any use of public funds to promote religious doctrines (would) violate the Establishment Clause.”

At O’Connor’s urging, the court upheld the act as constitutional, but returned it to a trial court judge to see if any of the grant recipients were teaching religious doctrine to teen-agers. Scalia summed up this distinction during oral arguments on the case: A church-affiliated group could use the money to teach that premarital sex is “wrong” but not that it is a “sin.”

Replacement Saved Program

UC Berkeley law dean Jesse Choper, an expert on the court’s religion cases, said the replacement of Justice Lewis F. Powell Jr., who retired last year, with Kennedy probably saved the $10-million government aid program.

“I think Powell would have struck it down as a direct grant of money to a religious institution,” Choper said.

Repeatedly during the 1970s and early 1980s, Powell joined with the court’s four strict separationists to strike down laws that provided even minimal amounts of government aid to parochial schools.

In 1985, for example, the court in a 5-4 ruling invalidated part of a 20-year-old federal education program that paid for public school tutors to work in parochial schools in poor neighborhoods. The court majority concluded that the program created an “excessive entanglement” between church and state. In response, an angry Education Secretary William J. Bennett charged that the court appeared to view “entanglement with religion as akin to entanglement with an infectious disease.”

Kennedy’s concurring opinion in the latest case suggests that he would support such government aid to parochial schools, Choper said. “It seems we may have a solid accommodationist in Justice Kennedy,” he said.

Could Include Churches

University of Chicago law professor Michael McConnell said the recent court ruling means that Congress, in considering new day-care legislation, could include churches as grant recipients. “I think this (ruling) is a major move away from the highly suspicious treatment that parochial schools received and back toward a position of neutrality,” said McConnell, who served in the Justice Department early in the Reagan Administration.

Ruling a ‘Major Shift’

Lee Boothby, a lawyer for the Council on Religious Freedom, which urged the court to strike down the “chastity act,” agreed that the ruling represented “a major shift in the court’s position.” But he took comfort from O’Connor’s statement.

“If we can show that religious indoctrination has crept into a program, we can get O’Connor’s vote,” Boothby said. “She is also concerned if the law creates a symbolic union between the church and the government.”

O’Connor, like Powell, often makes extremely fine distinctions in church-state cases. In 1985, for example, she said that she would support school programs that set aside a daily moment for silence or voluntary prayer but that she would vote no if a state Legislature enacted such a requirement with the understanding that it would encourage prayer in school.

Political Support Declines

Ironically, just as the Supreme Court has shifted away from its opposition to any government support for religious schools, political support for such aid has dried up.

In the late 1970s, over the opposition of President Jimmy Carter, both Democrats and Republicans in Congress sought unsuccessfully to provide tuition tax credits for parents of private and parochial school students. And Reagan’s 1980 Republican platform supported tuition tax credits. But the huge 1981 tax cut undermined political support in Congress for further measures that would reduce tax revenues.

The picture in the state legislatures is much the same. Particularly in states with large Catholic constituencies, various forms of direct and indirect aid to parochial schools were popular in the 1970s but less so in recent years, as states have poured more money into public education.