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Religious litigants claimed victories in all four cases involving religious freedom to reach the Supreme Court this past term. Far from clear, however, is whether any of these hard-fought legal wins represents significant progress for citizens resisting the cultural forces bent on constricting the role of religion in American life.

The first words of the First Amendment command that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” About fifty years ago, a funny thing happened to this language in the nation’s highest judicial forum. As the Supreme Court began to hold the states to the same constitutional standards as the federal government, it sliced the religion language in two, creating a “free exercise” jurisprudence to handle claims by individuals that government action infringed their freedom of religion, and an “establishment” jurisprudence to police government activity viewed as impermissibly favoring a religion or religion in general. This fateful distinction, introduced with little discussion of its implications, resulted in a body of constitutional law condemned as unprincipled, incoherent, and unworkable by Court-watchers of virtually every stripe. More important, the cases in which it was developed have eroded the religious freedom of Americans through a stingy interpretation of protected “free exercise” rights and a remarkably broad conception of what constitutes an “establishment” of religion. In recent years, several justices joined the chorus of critics calling for a fundamental rethinking of the Court’s approach in religion cases. In a pair of decisions handed down in June, however, the Court again passed up an opportunity to reexamine the basic principles undergirding its precedents.

Church of the Lukumi Babalu Aye v. City of Hialeah attracted a great deal of press attention for its exotic facts, but its chief interest to church-state experts arose from the opportunity it afforded to clarify the Court’s “free exercise” doctrine. The dispute arose when members of the Afro-Cuban religion Santeria, whose central rituals require animal sacrifice, announced their plans to open a church in Hialeah, Florida. Hialeah officials responded by passing ordinances outlawing animal sacrifice as practiced by the Santeros, and the Santeria Church sued in federal court to block enforcement of the ordinances.

All nine justices agreed that Hialeah had unconstitutionally singled out the religious activity of the Santeros, thereby violating the religion clause’s “fundamental nonpersecution principle.” The only significant disagreement among the justices was over which test to apply in free exercise cases. Justices Blackmun, O’Connor, and Souter argued for a return to the standard the Court had purported to apply in free exercise cases from the early 1960s until 1990. Under that “compelling interest” test, any law which burdened religious practice had to be justified by a government interest of the highest order and had to be carefully drawn to minimize the degree to which religious practice was infringed. Justice Scalia’s controversial 1990 opinion for the Court in the “peyote” case ( Employment Division v. Smith ) had departed from that test, suggesting that if a law was “neutral” and of “general applicability” it was not in violation of the free exercise clause even if it burdened religious practice. As many of its critics have pointed out, Smith essentially announced a nondiscrimination principle: so long as a law did not take direct aim at a religious practice, it was constitutional. In this sense, Smith does represent a retreat from the Court’s prior free exercise standard. But the fact is that the Court, in the “compelling interest” cases, had paid lip service to free exercise rights while seldom ruling in favor of religious claimants. Smith critics hoped that, in the Santeria case, the Court would reinstate the old test and begin applying it. But the Hialeah ordinances presented such a blatant instance of governmental discrimination against a religious group that they violated even the deferential Smith standard and therefore the majority did not feel any need to consider whether the Court should modify Smith . The narrow Santeria decision, therefore, leaves unusual or unpopular religious practices vulnerable to legislative infringement.

On the establishment front, Zobrest v. Catalina Foothills School District , also decided in June, seemed an ideal vehicle for a break from the strict separationist precedents dating from the 1940s. The Court’s approach in this area has been driven by the historically dubious notions that the establishment language was meant to create a “wall of separation” between religion and the government, that it prohibits all government aid to religion, and that government is required to be strictly neutral between religion and nonreligion. Court majorities have routinely ignored the important institutional and associational religious freedom issues raised in establishment cases, as they pursued the secularizing separationist project. With varying degrees of zeal, majorities used the establishment language as a roving mandate for the judiciary to second-guess legislative attempts to accommodate or cooperate with religious entities.

The facts of Zobrest starkly underscored the costs to religious freedom of this secularizing approach. An Arizona school district had determined that federal law required it to provide sign language interpreters for hearing-impaired students attending public and private schools, unless the private school was religious, in which case such assistance was unconstitutional. Accordingly, the school district denied the services of an interpreter to James Zobrest, a student in a Catholic high school who had been deaf since birth. James and his parents challenged the school district’s refusal to provide interpreters for students in religious schools. From the Zobrests’ perspective, the school district was using the vast power of the state to penalize parents who chose a religious education for their children. Two lower federal courts, citing the Supreme Court’s separationist precedents, concluded that such discrimination against religious choice was constitutionally required.

Chief Justice Rehnquist, writing for a five-justice majority, disagreed. Two broad principles emerged from the Chief Justice’s analysis. The first was that “religious institutions” are not “disabled by the First Amendment from participating in publicly sponsored social welfare programs,” or, more specifically, that government programs “that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subjected to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.” The second point stressed by the Chief Justice was that a government-paid interpreter would be present in a religious school “only as a result of the private decision of individual parents” and not by government dictate, and that this “private” choice further insulated the provision of the sign language interpreter from constitutional challenge.

Though the Washington Post described Zobrest as “a stark departure from prior rulings on the separation of church and state,” the majority opinion did not directly challenge the Court’s long-dominant separationist philosophy. That philosophy was on dress parade in Justice Blackmun’s dissenting opinion. “Until now,” Justice Blackmun declared ominously, “the Court never has authorized a public employee to participate directly in religious indoctrination.” Under the Court’s decision, he said, the Catholic high school would be permitted to enlist “the machinery of the State to enforce a religious orthodoxy.”

A citizen unfamiliar with the Court’s establishment cases may be surprised at the irate and buzz-word laden dissent from a decision that merely provided equal access to a program for hearing-impaired students. But for committed separationists, the slightest breach in the wall of separation justifies a call to the barricades. ( Zobrest attracted more amicus curiae briefs than any other Supreme Court case this past term.) First launched in the 1940s, just as the size and reach of government at all levels was set to explode, separationism has produced a series of decisions in which the Court has blocked one modest legislative attempt after another to accommodate the religious practices of a diverse nation. Now-retired Justice Brennan wrote perhaps the most infamous of these decisions in his 1985 opinion for a 5–4 majority in Aguilar v. Felton , striking down a successful New York City program in which public teachers, for nineteen solid years, provided after-school remedial assistance to poor children in private schools, including religious schools. The Brennan decision was the subject of a methodical and withering attack by Justice O’Connor, who argued in her dissent that the majority, in its separationist dogmatism, simply ignored the facts: the New York program’s long history provided no support whatsoever for the contention that the program’s purpose or effect was anything other than to render academic assistance to the City’s neediest children. Many who admired Justice O’Connor’s Aguilar dissent hoped that the analogous factual situation in Zobrest would prompt her to lead the court in a decisive break from the zealotry that could produce decisions like Aguilar. Justice O’Connor, however, along with Justice Stevens, declined even to address the constitutional issue presented by Zobrest , on the technical grounds that the case should be returned to the trial court for further proceedings.

With the Santeria and Zobrest opinions providing little change in the Court’s doctrines, perhaps the most significant development of the term was the indication that Justice Souter (by joining Justice Blackmun’s Zobrest dissent) was picking up the banner of separationism long carried by the man he replaced, William Brennan. Souter’s recent action in a school prayer case provides further evidence of his separationist leanings. Earlier in the term, the Court had refused to hear the appeal in Jones v. Clear Creek Independent School District , where an intermediate federal appellate court sitting in New Orleans held that the establishment provision does not prohibit a public high school from allowing seniors to choose student volunteers to deliver nonsectarian, nonproseltyzing invocations or benedictions at graduation ceremonies. Last year, the Supreme Court held in Lee v. Weisman that the establishment provision barred a public school principal from inviting a local clergyman to deliver a nonsectarian, nonproseltyzing invocation at a high school graduation ceremony. The Jones case reasoned that because students , rather than school officials, decided whether to have an invocation (and the invocation was delivered by a student) no constitutional concerns were implicated. Many hoped that the Supreme Court’s decision not to hear the appeal in Jones indicated that the justices were willing to show more flexibility in tolerating religious speech in public ceremonies than some had feared after Lee. However, in June another intermediate federal appellate court, this one in Philadelphia, rejected the Jones analysis, reversing a New Jersey trial court’s decision to allow student-led prayers at two high school commencements. School district attorneys sought emergency aid from the Supreme Court, but Justice Souter rejected their request. This development indicates that even student-led graduation prayers may not be tolerated by the emerging Supreme Court majority.

With Justice Souter now firmly in the separationist camp, that position has three supporters on the current court (Blackmun and Stevens are the other two). The retirement of Justice White, who perhaps better than any other current justice understood the institutional and associational aspects of religious freedom implicated in the establishment cases, cuts to four the number of justices who have rejected strict separationism (Rehnquist, Scalia, Kennedy, and Thomas). According to press accounts, “indications are” that the newest justice, Ruth Bader Ginsburg, “would be satisfied with a higher wall between church and state.” That would leave the tally at 4-4, with the cautious Justice O’Connor holding the potentially decisive fifth vote. Her failure to address the merits in Zobrest , however, may mean that she is pulling back from the implications of her spirited Aguilar dissent. How she will analyze other cases where parental choice is at stake, e.g., school vouchers, is by no means clear.

The Court term, though, did produce one potentially far-reaching victory for religious freedom. In Lamb’s Chapel v. Center Moriches Union Free School District , a unanimous Court held that if a public school opens up its facilities after school for general use by community organizations, the First Amendment’s free speech provision prevents the school from banning religious groups from participation. The case arose when a New York school refused to allow an evangelical church to use school facilities for a public film series presenting a Christian perspective on family issues, even though the school accepted “social, civic, and recreational meetings and entertainments, and other uses pertaining to the welfare of the community.” Lamb’s Chapel sends the important message to bureaucrats and their attorneys that it is not permissible to single out religious groups for discriminatory treatment in the management of public property.

The overall picture for religious freedom remains clouded, however. Predicting how a justice will vote, as many have recently relearned, is a dicey business. What is certain, however, is that the Zobrest Court passed up an ideal opportunity to refashion an establishment jurisprudence that for fifty years has regularly subjugated the institutional and associational aspects of religious freedom to the secularizing project of constructing a wall of separation between religion and government. Zobrest will take its place as a modest exception to this general trend, an instance where a Court majority pulled back from the most radical implications of the separationist logic. With the departure of Justice White, though, such exceptions may be rarer.

For the foreseeable future, the Court can be expected to flag the most flagrant assaults on the religious freedom of solitary individuals or small religious groups, as illustrated by the Santeria case. It is less likely that a Court majority will recognize that what it classifies as “establishment” cases implicate religious freedom just as surely as “free exercise” cases. The Court’s continued insistence on a rigid separation of religion and government exerts what lawyers call a “chilling effect” on most government efforts to accommodate the religious practices of its citizens and discourages creative experiments with the use of religious organizations to help deliver much-needed social services. Given the pervasive power of the modern regulatory and social welfare state, the continued reign of separationism means that the Court remains a collaborator, witting or unwitting, of the cultural forces bent on secularizing America.

Raul F. Yanes is an associate at Davis, Polk & Wardwell in New York City.

Mary Ann Glendon, a member of the Editorial Advisory Board of First Things , is the Learned Hand Professor of Law at Harvard University.

Image by Marielam1 via Creative Commons. Image cropped.

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