High Court Likely Will Be Forced to Decide Church-State Boundary

President Bush’s move to funnel more federal money to “faith-based organizations” will test the legal line separating church and state, constitutional experts said Monday.

For more than a century, the Supreme Court has said that church-run hospitals can receive government aid because these facilities are providing medical care, not promoting religion.

The court has also allowed some public money to flow to religious schools if it is spent only for nonreligious purposes. Last year, for example, the court on a 6-3 vote upheld the use of federal funds to buy computers for parochial schools.

But the justices have drawn the line against using public money to teach religion or promote faith.

“Any use of public funds to promote religious doctrines [or] advance the religious message” violates the Constitution, wrote Justice Sandra Day O’Connor, who holds the decisive vote on the high court on the issue of public aid for religious institutions.

President Bush seems determined to test that limit.

He maintains that religious groups should be allowed to receive government aid because they are effective at helping people in need. He also says that they should not have to abandon their faith-based approach as a condition of getting funds.

“Problems like addiction and abandonment and gang violence and domestic violence, mental illness and homeless: We are called upon by conscience to respond,” Bush said as he signed the executive order creating the new White House Office of Faith-Based and Community Initiatives.

“Faith-based charities should be able to compete for funding on an equal basis and in a manner that does not cause them to sacrifice their mission,” he said.

Most lawyers who specialize in church-state cases agree with Bush on the first point but are sharply split on the second.

Most say religious groups should not be barred from competing for public funds simply because they are part of a religious group. But liberals and conservatives disagree on whether public funds can subsidize a program whose teaching is explicitly religious.

In Texas, then-Gov. Bush enthusiastically endorsed the prison fellowship program founded by former Nixon aide Charles Colson. Inmates spend hours a day reading the Bible, singing and praying.

“The president believes the faith element is indispensable to the success of these programs. That’s why they work, in his view,” said Marc Stern, attorney for the American Jewish Congress in New York. “But if the government can fund a program whose content and purpose is to promote religion, it means nothing short of a constitutional revolution.”

Stern said that his group will sue to stop the use of taxpayers’ money in programs whose “actual operation involves religious teaching.”

But Jay Alan Sekulow, counsel for the Christian Coalition, sees no problem with such programs so long as prisoners, drug addicts or welfare recipients are not required to participate.

“No one is compelling them to go there,” he said. If addicts or prisoners choose a faith-based program, that is their choice, not the government’s, he said.

The line separating church and state has been the focus of decades of dispute and debate.

The 1st Amendment says that the government “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

After World War II, the Supreme Court focused on this provision anew. All nine justices adopted the view of Thomas Jefferson, who said in a letter that the amendment was intended to erect “a wall of separation between church and state.”

“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion,” wrote Justice Hugo Black, speaking for the court in 1947.

The doctrine of strict separation of church and state reached its high point in the 1960s and 1970s. The court banned official prayers in public schools and prohibited virtually all state aid to parochial schools.

But Chief Justice William H. Rehnquist, a sharp critic of the separationist view, has succeeded in allowing more public aid for religion.

He and the other conservative justices maintain that “neutrality” is the key principle. Government cannot favor or disfavor religion but must be neutral, they say.

Justice Clarence Thomas, speaking for Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy, wrote last year that the government can offer aid to “a broad range of groups without regard to their religion,” so long as the “principle of neutrality” is followed.

But the Rehnquist-Thomas view does not have majority support on the Supreme Court.

The more liberal justices have insisted that the rule is “no aid to religion.”

And the swing vote is often O’Connor, who supports funding for religious institutions so long as they do not use the funds to teach religion.

Last year, O’Connor criticized her fellow conservatives in a separate opinion. Their open-ended neutrality rule would allow “the actual diversion of government aid to religious indoctrination,” she said. This kind of subsidy for religion is “inconsistent with the establishment clause,” she concluded.