Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, June 10, 1990 TAG: 9006110182
SECTION: EDITORIAL PAGE: F-3 EDITION: METRO
SOURCE: CAL THOMAS
DATELINE: LENGTH: Long
Supporters of the court's decision may have even more to be happy about if they carefully read the wording of the majority opinion written by Justice Sandra Day O'Connor.
O'Connor did note that a high school is perfectly free to bar all non-curriculum-related activities and, in so doing, not violate the equal access law. But O'Connor also correctly observed, "There is a crucial difference between government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free speech and free exercise clauses protect" (emphasis hers). This may indicate that the court is moving away from what many have felt has been an anti-religious bias in terms of free religious expression in public places.
Certainly some public schools will eradicate all non-curriculum-based clubs, but those that do will thwart the intentions of the authors of the First Amendment.
Since Everson vs. Board of Education (1947) - which said what Congress is prohibited from doing, so the states are prohibited - the Supreme Court has misconstrued the First Amendment's prohibition against the establishment of religion.
Chief Justice William Rehnquist has properly noted that in ruling on church-state issues during the past 43 years, the Supreme Court has "freighted" the establishment clause of the First Amendment with Thomas Jefferson's phrase "a wall of separation between church and state," which he used in a private letter. Jefferson did not participate in the public debate over the First Amendment.
The First Amendment requires that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." The debate has been about "balancing" the two clauses when, in fact, the clauses are complementary.
As scholar Richard John Neuhaus has written, "The meaning of a `clause,' apart from the truly grammatical, is that it is an article or stipulation. The two-part religion clause of the First Amendment stipulates that there must be no law [establishing religion]. The reason for this is to avoid any infringement of the free exercise of religion. Non-establishment is not a good in itself . . . . The positive good is free exercise, to which non-establishment is instrumental." Neuhaus says that the sense of the religion clause emerges more clearly if stated this way: "Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof."
Said this way, it becomes clear (and even clearer when one reads the floor debate in Congress two centuries ago over the Bill of Rights) that free exercise is the purpose of the religion clause and that non-establishment is a means to that end.
Yet the secularists have used non-establishment to halt religious expression in the public square, limiting it to churches and homes.
Justice Rehnquist, who has said that the "separation between church and state" idea is a "useless metaphor," and his colleagues may soon have a chance to reposition the court on church-state matters.
The Albermarle County, Va., Board of Supervisors last month voted to appeal to the court the question of whether a private group may pay for and place a nativity scene on the lawn of the county office building.
Burlington, Vt., wants the court to decide whether a menorah may be displayed by a private group in City Hall Park. In this case, the city specifically asks the court to decide whether it can be required to "engage in content-based censorship of free religious expression on public property." It further inquires "whether this court should provide a clear standard regarding the free exercise of religious activity on public forum property that citizens and municipalities can rely upon."
If, as some observers have suggested, the court has been inviting such a case to redefine the relationship between church and state, and whether the state should insulate and isolate itself from religious influence, or, as the Founders believed, protect religion from the state, this seems to be the ideal test case.
In fact, Justices Anthony Kennedy and Antonin Scalia appear to have already embarked on this new course, with unexpected help from traditional liberals, Justices Thurgood Marshall and William Brennan. Kennedy and Scalia write that the two key factors that would violate the establishment clause are (1) whether government has given "direct benefits to religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so," and (2) whether government has "coerced" any student to participate in a religious activity.
Marshall and Brennan have approved an affirmative disclaimer as a means of curing establishment clause problems. "If the school sought to continue its general endorsement of those student clubs that did not engage in controversial speech," they say, "it could do so if it also affirmatively disclaimed any endorsement of the Christian club."
As constitutional attorney James J. Knicely says, "This is new for Brennan and Marshall and has great significance as a curative mechanism for potential future establishment-clause, free-speech, free-exercise conflicts." Los Angeles Times Syndicate
by CNB