The late June decisions by the Supreme Court on church-state relations effectively open a new era in the potentially explosive world of religious freedom and judicial sovereignty.
In the decision to allow publicly funded school teachers to offer instruction in parochial schools, and in the declaration that the Religious Freedom Restoration Act is unconstitutional, the nation’s highest court retrieved its power to define and administer several extremely sensitive areas of America’s religious life. According to reports in the Washington Post (June 24 and June 26) and the New York Times, (June 24 and 26), the justices served notice that the Supreme Court, and not the Congress or state legislatures, was the final authority for protecting First Amendment freedom of religion liberties.
In the school case, the Court repudiated its own decision made in 1985 (Aguilar v. Felton) forbidding public funds to be used to provide mandated programs for special education needs in private schools. Justice Sandra O’Conner struck the `new era’ note when she said that the Court “no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment.” In a sharply worded dissent, Justice David H.Souter insisted that the result of the 1997 ruling would be to “authorize direct state aid to religious institutions on an unparalleled scale.” Any deviation would violate the prohibition against the “establishment” of religion.
Observers pointed out that the new decision opened the door for those seeking to legislate the payment of vouchers to parents who send their children to private religious K-12 schools. Cases authorizing that major shift in church-state relations are now working their way through several state courts. The Supreme Court reclaimed its authority as the final arbiter in religious freedom cases by striking down the l993 Restoration Act. That
bill had been passed unanimously by the Senate, and had only three no votes in the House. The Court claimed that in such cases as protecting the right of native Americans to use peyote as a religious practice or granting immunity to a Catholic church in Boeme,Texas from compliance with local zoning laws, the final jurisdiction belonged with it, not with Congress or local law agencies.
Critics, along the spectrum from Senator Orrin Hatch of Utah to Senator Ted Kennedy of Massachusetts, denounced the ruling as a usurpation of established Constitutional powers for the legislative branch of government. Many religious freedom groups within the denominations, spreading from Mormon to Baptist, issued equally sharp criticisms. [A new coalition of conservative Christians organized by Charles Colson and Richard John Neuhaus is likely to lead the way in such protests, as it charges that the “constitutional order is in crisis” by the Court’s usurption of power.]
Defending the Court’s decision, Justice Anthony Kennedy wrote that Congress does not have any `substantive’ power under the l4th Amendment. Federal authorities have only remedial’ authority to write laws aimed at protecting religious freedom.
— By Erling Jorstad, RW Contributing Editor.