Justices Again Asked to Draw Church-State Line

If states pay for scholarships, textbooks and other types of aid that benefit private secular schools, does the U.S. Constitution require them to do the same for church-related or religious schools?

That question is before the Supreme Court in the latest twist in the long debate over religion and its relationship with the government.

Last year, the high court said states may use taxpayers’ money to pay for children to go to church-related schools. The 5-4 ruling upheld a voucher program in Ohio that gives low-income parents a stipend that they can use to send their child to a church-related school. The flow of public money to a parochial school did not violate the 1st Amendment’s ban on an “establishment of religion,” the court ruled.

Now, religious-rights advocates and voucher proponents are urging the justices to go a step further and rule that if states are supporting nonreligious private schools through scholarships, tuition aid or other means, they must also cover costs for those at religious schools.

The justices met last week to consider raising the issue and are likely to announce today whether they will hear the appeal.

To single out religious schools for exclusion violates the 1st Amendment’s ban on the “free exercise of religion,” religious rights lawyers say.

This claim runs squarely into the constitutions in 36 states, including California, that specifically forbid the use of public money for “sectarian” schools.

In the past, the California courts have struck down state programs that gave textbooks to students attending parochial schools on the grounds that the aid for religious instruction violated the state constitution.

But last year, the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, suggested that these state restrictions on public aid for religious schools violate the 1st Amendment’s guarantee of “free exercise” of religion.

Voucher advocates say striking down these bans will remove a legal barrier to statewide “school choice” programs that support students who go to religious schools.

UC Berkeley law professor Jesse H. Choper, an expert on the religious clauses of the Constitution, said the justices have not interpreted the guarantee of “free exercise” of religion as a guarantee of public support for religion. “It would be a big step” if they did, he said.

Moreover, such a ruling could boost President Bush’s “faith-based initiative.” Bush has argued that when the government provides social support services -- whether for prisoners, drug addicts, alcoholics or pregnant teenagers -- it should include churches and faith-based programs.

The case arose in 1999, when the Legislature in Washington state offered “Promise Scholarships” to top high school graduates from low-income families.

Joshua Davey qualified for a scholarship and said he planned to study “pastoral ministries” at a small college run by the Assemblies of God. His aim was to become a minister, he said.

State officials, pointing to Washington’s Constitution, said students studying theology did not qualify for this public aid.

“Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual,” it says. However, “no public money or property shall be appropriated for or applied to any religious worship, exercise or instruction.”

Lawyers for the American Center on Law & Justice, a conservative religious-rights group based in Virginia Beach, Va., sued in federal court on Davey’s behalf.

While a judge in Seattle sided with the state, the 9th Circuit in San Francisco ruled for Davey.

The state’s funding law “discriminates on the basis of religion” and violates the U.S. Constitution, said Judge Pamela Ann Rymer, an appointee of the elder President Bush.

The ruling came a month after the Supreme Court upheld the vouchers program in Ohio.

In dissent, Judge M. Margaret McKeown, an appointee of President Clinton, said the 1st Amendment’s guarantee of “free exercise” of religion means the government may not “suppress religion,” but need not support it either.

In February, Washington Gov. Gary Locke appealed the issue to the U.S. Supreme Court, asking whether the Constitution “requires the state to fund religious instruction.”

“This poses a classic conflict for us,” said assistant state Atty. Gen. William B. Collins.

While the Washington Supreme Court has said the state may not give public money to students to study religion, the 9th Circuit says the state must do so. If the justices reject the appeal in Locke vs. Davey, the 9th Circuit’s ruling will stand as the law in the Western states, including California.

Lawyers for the Becket Fund for Religious Liberty and the Institute for Justice, a libertarian group that has championed vouchers, hope the court will take the case and issue a ruling that voids the state constitutional bans on aid for religion.

These bans are “the remnants of 19th century religious bigotry ... and should be nullified,” said Kevin Hasson, president of the Becket Fund.

In his view -- and that of several Supreme Court justices -- these state bans are the legacy of a largely forgotten but ugly chapter in American history.

In the late 19th century, James G. Blaine, the speaker of the House and a Republican presidential candidate, led a movement to bar the use of public money to support Catholic schools. “The public schools had a distinctly Protestant character. That’s why a parallel, parochial system of Catholic schools developed,” says Richard D. Komer, a lawyer for the Institute of Justice. Blaine was “riding an anti-Catholic animus.”

Blaine’s failed presidential campaign of 1884 is remembered by historians for a supporter’s claim that the Democrats were the party of “rum, Romanism and rebellion.”

While Blaine’s proposed federal constitutional amendment fell just short in Congress, 36 states adopted a version for their state constitutions. Until recently, these measures were seen as upholding the principle of separation of church and state.

But two years ago, U.S. Supreme Court Justice Clarence Thomas denounced these state amendments as having a “shameful pedigree” of anti-Catholic “bigotry.”

His opinion was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy. Voucher advocates hope one more justice will join them to rule for Joshua Davey.

“This could be a huge decision for the school choice movement,” says Clint Bolick of the Institute for Justice, which represented families in the Ohio voucher case. “In one fell swoop, we could clear away the remaining obstacle to school choice programs in many of the states.”

By coincidence, the high court had three other religion appeals before it last week -- two from California and one from Utah.

The city of Burbank is challenging a California court ruling that barred references to “Jesus Christ” in the invocation at City Council meetings.

In 1953, the Burbank Ministerial Assn. began providing a volunteer cleric to give an invocation at the meetings. In November 1999, a local Mormon bishop offered his invocation “in the name of Jesus Christ.”

In the audience that day was Irv Rubin, chairman of the Jewish Defense League, and he sued, along with a group known as the Council for Secular Humanism.

A Superior Court in Los Angeles and a state appellate court agreed that this “sectarian prayer” violated the 1st Amendment’s ban on an “establishment of religion.”

In March, Burbank’s lawyers, joined by 80 municipalities in California, appealed. (Burbank vs. Rubin) They noted that 20 years ago, the high court upheld a state legislature’s use of a chaplain, saying that this was different from a prayer in a public school.

Burbank’s lawyers urged the high court to rule that “an occasional sectarian prayer by a citizen volunteer at a public meeting of a legislative body” does not violate the 1st Amendment.

In another case, Jerry Friedman, a Los Angeles computer programmer, is asking the high court to rule that “Ethical Veganism” is a type of “religious belief or creed.”

Five years ago, Friedman was fired by Kaiser Permanente after he refused to be vaccinated for mumps with a serum made from a chicken embryo. He sued, saying his employer should have accommodated his strong moral belief that humans should not kill or exploit animals.

Friedman’s lawyer said his convictions are the “legal equivalent of a religious belief,” and he noted that the Supreme Court in the 1960s gave conscientious objector status to two men who had firm moral objections to war, but no belief in a supreme being.

But the California courts ruled that “veganism is not a religious creed.” In Friedman vs. Southern California Permanente Medical Group, he asks the high court to revisit the question of what is a religion.

In the third case, the Mormon Church is asking the court to rule that it has the right to stop protests or other “expressive activity” on part of Main Street in Salt Lake City.

The city sold two acres of its downtown land to the church, which in turn strictly limited what could be said or displayed in this “ecclesiastical park.”

However, the U.S. 10th Circuit Court of Appeals in Denver struck down these restrictions in October, saying the city and the church may not “create a 1st Amendment free zone” on a downtown street.

The church asks the high court to rule that speech need not be free on a street that is private property.