Court Shuffles Bricks

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First Amendment Advocate, Vol. 1, No. 2,  August 2000

The Newsletter of the Oklahoma Chapter of Americans United

Court Shuffling Bricks in the Wall of Separation

by Dr. Bruce Prescott

On June 19th  the U.S. Supreme Court closed a breach in the wall separating church and state by ruling against a Texas school system's policy of allowing students to vote on whether to have official prayers during school events, like football games.  The bricks they used to repair this breach, however, appear to have been shuffled from a section of the wall that has also been breached.   On June 28th the court ruled that public funds could be used to provide computers and other materials to private religious schools.


In the case, Santa Fe Independent School District v. Doe,  the court ruled 6-3 that student-led prayers over the loud speaker at football games violates the separation of church and state by coercing people to participate in religious acts.   The school district held student elections seeking a majority opinion on whether to have prayers at football games and then held an annual election to select one student to pray before all the games.   The court determined that the school district’s practices infringed on the rights of persons of minority faith.


Barry Lynn, National Executive Director of Americans United, summarized the ruling saying, "The justices rightly said that students should never be allowed to bully classmates into religious worship they may not believe in. Allowing majorities to impose their religion on everyone else is fundamentally un-American."


In the case, Mitchell v. Helms , the court ruled 6-3 to allow aid to religious schools in the form of materials on loan.  The Helms case was originally filed in 1985 by several public school parents in suburban New Orleans. It challenged a variety of federal programs designed to aid private religious education, including a program called "Chapter Two" that provides computers, software, books and audio-visual equipment.

Chapter Two was created as part of the Elementary and Secondary Education Act of 1965. Now known as Title VI, the measure allocates approximately $16 million annually to private schools, most of which are religious.


Barry Lynn responded to this ruling saying, "Regrettably, we can now expect religious schools to clamor for an ever increasing number of services paid for with tax dollars.  The arrangement approved today will also free up their private resources to promote even more of their religious mission, which is, after all, the central purpose for these schools."


Melissa Rogers, General Counsel for the Baptist Joint Committee on Public Affairs, cautioned that religious schools rejoicing over this ruling should realize that “government regulators also may use it to cross over to the religious side and monitor such aid and perform other government oversight.”


The majority opinion for the Helms case was written by Justice Thomas.  He wrote a long, verbose, sweeping opinion which would also grant religious schools cash subsidies.  Justices O’Connor and Brever voted with the majority on the issue of aid by computers and other materials on loan but refused to endorse the “expansive approach” and “unprecedented breadth” of Justice Thomas’ opinion. 


In a dissenting opinion, Justice Souter challenged the majority’s understanding of the state’s neutrality toward religion.  Souter predicts that the majority’s notion of “evenhandedness neutrality” will “be the end of the principle of no aid to the schools’ religious mission.”   He said, neutrality is “not synonymous with evenhandedness” in disbursing government benefits but stands for the “required position of government as neither aiding religion nor impeding religious exercise by believers.”


Barry Lynn summarized the Helms case saying, "Though the opinion is disappointing, the silver lining is that this decision gives no aid or comfort to voucher supporters.  It deals exclusively with materials on loan, not direct cash subsidies for religious education.  And most importantly, a court majority rejected the sweeping public funding of religious schools argument presented by Clarence Thomas."


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