High Court Sends Signals On Church, State Issue

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THE United States Supreme Court continues to weave a zigzag course through the minefield of church-state relations.

In a unanimous decision, the high court on June 7 overturned a lower-court ruling that a New York school district was within its rights to bar religious groups - but not secular ones - from using its property after-hours. At the same time, the justices refused to hear an appeal of a case in which a federal court allowed student-led graduation prayers in Texas, Louisiana, and Mississippi.

Both decisions were hailed by Christian Right groups as a major victory. "The Supreme Court has clearly stated that religious speech must not be censored from the marketplace of ideas," said Jay Sekulow, counsel for The American Center for Law and Justice, a group founded by the Rev. Pat Robertson that argued for the plaintiff in the New York case, Lamb's Chapel v. Center Moriches School District.

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Michael McConnell, an expert on church-state relations at the University of Chicago, said although the court's ruling in Lamb's Chapel does not tread new legal ground, it has tremendous practical repercussions. "I don't think people realize how common it is for religious speakers to be suppressed in public schools," Dr. McConnell says. "This decision says public spaces will not be treated as religion-free zones."

But liberal groups took heart from the narrow wording of Justice Byron White's majority opinion in Lamb's Chapel. The court ruling does not open the way for religious displays during school hours, they note. "The court is reaffirming its long-standing rules on separation of church and state," says Steve Green, a lawyer for Americans United for the Separation of Church and State, which filed a brief supporting the court's decision in Lamb's Chapel.

Mr. Green also cautioned against reading too much into the court's refusal to hear a challenge to a Texas ruling that schools could allow prayers at graduation if the students voted for it. Last year, the court ruled in Lee v. Wiesman that a Rhode Island school should not have allowed a rabbi to deliver a nondenominational prayer at its graduation ceremony. The decision not to hear the Texas case "is not a signal to school boards that they must allow students to have graduation prayers.... It only means the court is not ready to revisit the issue," Green says.

Constitutional scholars say both June 7 rulings only postpone a looming showdown in the court over church-state relations. The reigning high-court standard on the issue was established by the 1971 Lemon v. Kurtzman ruling, which held that government programs (1) must have a secular purpose, (2) must not advance or inhibit the practice of religion, and (3) may not lead to excessive government entanglements in religion.

In recent years, a Supreme Court majority has disagreed with this strict separation of church and state, sometimes backing a slightly more permissive view advanced by Justice Sandra Day O'Connor. Justice Anthony Kennedy and the more-conservative justices have pushed for opening the door even further to religious displays on public property.

In the Lamb's Chapel decision, the high-court majority invoked the Lemon test. That angered Justices Antonin Scalia, Clarence Thomas, and Kennedy. In a biting concurrence, Justice Scalia argued that the court should have jettisoned this standard, comparing it to "some ghoul in a late-night horror movie."

The court appears likely to reexamine the Lemon test in an upcoming ruling. But court-watchers said that, after the Lamb's Chapel decision, it is unlikely the justices will throw out Lemon altogether. "The tone of Scalia's concurrence suggests they won't do anything radical about Lemon," McConnell says.

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