High Court Vote Reveals a Split On Religion

IN its decision this week that abolished a separate school district for ultra-Orthodox Jews in New York state, the United States Supreme Court preserved the so-called wall of separation between church and state that has been read into the Constitution. Yet the court did not foreclose future attempts to chip away at that wall, constitutional scholars say.

The high court's ruling in Board of Education v. Grumet was anticipated, since the unusual facts made it an ``easy'' case, some experts say. But the 6-to-3 vote covers fissures in the justices' views about the appropriate relation between government and religion under the First Amendment.

Kiryas Joel is a community of Satmar Hasidic Jews north of New York City. Most of the village's 5,000 children are educated in parochial schools run by the strict sect, but prior to 1989 children with physical or learning disabilities were enrolled in special-education classes conducted by the local public-school district.

At the request of Hasidic parents who claimed that their children felt ``fear and trauma'' in the secular setting, the New York legislature that year carved out a school district for the village, which has maintained a publicly funded school for the disabled students. But critics objected.

Although the curriculum of the special-needs school included no religious instruction, the Supreme Court ruled June 27 that the legislation creating the district was an improper ``establishment'' of religion and violated ``a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion,'' Justice David Souter wrote in the majority opinion. ``The statute before us fails the test of neutrality.''

``This decision means that government can't go out of its way to serve a particular religious group,'' says Joseph Conn of Americans United for the Separation of Church and State.

In a dissent, Justice Antonin Scalia said the statute accommodated the Satmar children's cultural differences rather than religious beliefs.

Even so, advocates of the view that the Constitution allows government to accommodate religion without actively supporting it were somewhat encouraged by the opinions in the case.

``The outcome of this case was wrong, but much of the analysis was good,'' says Prof. Michael McConnell of University of Chicago Law School, a strong proponent of accommodation.

Justice Souter wrote, ``There is nothing improper about a legislative intention to accommodate a religious group, so long as it is implemented through generally applicable legislation....''

At least five justices appear ready to overrule two Supreme Court decisions of the mid-1980s prohibiting public-school teachers from giving nonreligious instruction in parochial schools. It is ``inevitable'' that a case challenging those precedents will come before the Supreme Court soon, one expert says. Some scholars believe this week's decision could be a barrier to proposed school-voucher plans, but others say the effects of the case are hard to extrapolate.

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