SUPREME COURT
As the Supreme Court moves through its spring term, many Court observers say this will be a crucial time, especially in the church-state arena. And while the issues before the justices are not headline grabbers like the recent creationism, school prayer, and textbook cases, experts agree this term could have a far-reaching impact on the direction the Court will be taking with regard to religious issues.
New Shakedown?
A key factor in any new direction will be recently confirmed Justice Anthony Kennedy. During his confirmation hearings, Kennedy did not reveal his views on such church-state issues as the free-exercise and establishment clauses of the Constitution, and he did not address such cases during his time as a federal appeals judge.
Consequently, many observers see him as something of a critical โwild card.โ In recent years, the Court has become divided over church-state issues, with many cases being decided on a 5-to-4 vote. Justice Lewis Powell, whose spot Kennedy filled, was often considered the โswing voteโ who determined which way a case would be decided.
โI think we may see a new shake-down, a new picture presented on both establishment and free-exercise [cases],โ said constitutional attorney William Bentley Ball, โand Iโm not venturing to predict whether that will be good or bad.โ
Federal Funds For Church Groups
One of the most important church-state cases currently before the Court, Bowen v. Kendrick, involves the constitutionality of allowing religious groups to accept federal funds for programs that promote abstinence for teenagers.
Clarke Forsythe, staff counsel for Americans United for Life (AUL), said a lower court ruled that the religious mission of the organization is related to its program of promoting abstinence. โSo on that premise, no religious program could participate in any social-welfare program because every social-welfare program would relate to a groupโs religious mission,โ Forsythe said. He fears churches and religious groups that accept federal grants for soup kitchens, homeless services, immigration counseling, drug-abuse programs, and services to help teenage runaways could be affected.
At issue in the Kendrick case is the Adolescent Family Life Act, passed by Congress in 1981, which allowed nonprofit groups, including religious groups, to receive federal grants to promote chastity and alternatives to abortion. The act specifically forbids the religious groups to use the federal grants to promote religion.
The American Civil Liberties Union (ACLU) challenged the law, saying it allowed โfederal funds to subsidize religious indoctrination as a means of opposing premarital sex.โฆโ A federal district court ruled last year that providing those funds for religious groups under the act would create an โexcessive entanglement between government and religionโ in violation of the establishment clause.
Samuel Ericsson, executive director of the Christian Legal Society (CLS), acknowleged that there is a potential for some grant recipients to violate the contract and use federal money to promote religion. However, he added, โYou donโt throw the baby out with the bathwater.โ
Not all religious groups agree such funding is appropriate. Oliver Thomas, general counsel for the Baptist Joint Committee (BJC), filed a brief on behalf of his group and the American Jewish Committee in opposition to providing funds. While commending the โoutstanding jobโ that many of the religious groups were doing in trying to combat teen pregnancy, Thomas said the government should not be subsidizing that kind of activity. โWe think that itโs impossible for religious organizations to teach sexual morality without consciously or unconsciously promoting religion,โ Thomas said.
Thomas believes churches will be better off not receiving federal funds for any programs. โWhen we accept government funds, then weโre going to be held accountable to certain standards, and itโs going to be a secular mentality thatโs imposed on the churches,โ he said. โStrings follow government money.โ
Both sides agree the Court may use this case as an opportunity to re-examine the traditional criteria for determining whether a particular government action violates the Constitutionโs prohibition against government establishment of religion (the Lemon test). Recently, several of the justices have indicated dissatisfaction with that test.
Fishing Expeditions
A second case the Court has taken up looks at who has the right to challenge the tax-exempt status of churches and other religious groups. U.S. Catholic Conference v. Abortion Rights Mobilization (arm) began when several prochoice groups and individuals, led by arm, sued the Internal Revenue Service (IRS) and the treasury department for not revoking the Catholic Churchโs tax-exempt status because of the churchโs prolife activities, arm charged that the tax exemption gave the Catholic Church an unfair subsidy for โpartisan political activityโ in the abortion debate.
In the legal process, the National Conference of Catholic Bishops and the United States Catholic Conference refused to release some 20,000 subpoenaed internal documents, including sermons, pastoral plans, newsletters, and other sensitive information. The lower court found the two groups in contempt of court and ordered them to pay fines of $100,000 per day until they complied with the subpoena. Those fines have been temporarily suspended pending the appeal.
The root issue in this case is whether churches have the right to speak out on moral issues in the political realm without endangering their tax-exempt status. However, the issues the Supreme Court will address at the present time are procedural ones: Do arm and the other prochoice individuals have enough direct interestโor legal standingโto sue the government on this? And second, can the church be forced to hand over sensitive documents without having the right first to challenge the underlying lawsuit?
Legal observers agree the procedural-issues case could have broad implications for religious groups. A brief filed by the Rutherford Institute, a legal group that deals with religious-liberty issues, argued that if the Court rules arm does have the standing to bring this lawsuit, any group or individual that disagrees with a churchโs beliefs could go on โfishing expeditionsโ by threatening its tax status and demanding confidential documents.
The Baptist Joint Commissionโs Oliver Thomas said he fears that if the case is allowed to stand, a โstrategy of intimidationโ will be used against churches and other religious groups speaking out on moral issues. He added he fears this will have a โchilling effectโ upon religious moral advocacy. โMany churches may be inclined to sit silently on the sidelines while these important political battles are being waged,โ Thomas said.
Other Cases
The Court has been considering several other issues of interest this spring:
โข In a case from Wisconsin, the justices are looking at some procedural questions surrounding a battle between prolife picketers and the town of Brookfield. The town has passed a municipal ban against residential picketing, apparently in an effort to stop prolife activists from picketing on public property in front of an abortionistโs home.
โข In a free-exercise case, the Court was asked to hear arguments on whether persons employed by a church can be required to pay taxes for a government welfare program they oppose on religious grounds. The case, which involves Bethel Baptist Church in Pennsylvania, also asks the Court to consider whether the First Amendment bars the taxation of the religious activity of churches.
โข Earlier this spring, the Court ruled that a Hustler magazine parody of Jerry Falwell as an incestuous drunk was not libelous. According to CLSโS Ericsson, the ruling said, in effect, that even โoutrageousโ speech is protected by the First Amendmentโsome good news for religious groups. โThere is a lot of stuff thatโs done in the name of religion that the world may perceive as outrageous โฆ and the principle [in the decision] can be used as a very strong statement that would protect all First Amendment conduct, โฆ including religious conduct,โ Ericsson said.
By Kim A. Lawton.