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Supreme Court grapples with aid by government to religious schools

WASHINGTON (BP)–The U.S. Supreme Court wrestled in recent oral arguments with how much government aid made available to religious schools is permissible constitutionally.

The justices quizzed lawyers on both sides about what instructional equipment provided under a federal educational program to religious schools on the same basis as to public and other private schools would be allowed under the First Amendment’s prohibition of government establishment of religion.

The focus of the vibrant debate was the appeal of a decision by the U.S. Fifth Circuit Court of Appeals, which found a federal program more than 30 years old was unconstitutional in its provision of books, computers and other equipment to religious schools. The appeals court overruled a federal court opinion, which found the program, known as Chapter 2, as applied in Louisiana did not primarily advance religion.

While the justices seemed to be straining to find an appropriate standard for judging such aid to religious schools, the issue of school vouchers shadowed the case. Voucher advocates, however, said the program before the high court was more problematic than theirs. Chapter 2 involves direct aid from the government to schools, while vouchers are provided to parents, who determine what type of school in which to use them.

Michael McConnell, a University of Utah law professor who argued for the program’s constitutionality, distinguished the two issues afterward.

When asked by a reporter if this case, Mitchell v. Helms, was paving the way for vouchers, McConnell said, “Well, I think the court has paved the way for vouchers [already], and I think they will be upheld,” but he did not believe this case addressed the voucher issue, he said.

The high court has yet to accept a vouchers case.

The justices did not ask about vouchers but questioned what the lawyers thought would be a proper guideline for government aid to religious schools. They confronted an issue on which the court has delivered seemingly contradictory rulings in a series of cases since the late 1960s.

Associate Justice David Souter asked McConnell what his “limiting principle” on aid to religious schools would be. While McConnell did not appear to answer Souter directly, he earlier had cited what he called the three principles from a 1997 opinion by the high court: Neutrality; no government inculcation of religion; and no excessive entanglement of government with religion.

Later, Souter asked Lee Boothby, representing Louisiana taxpayers who challenged the federal program, if the justices were groping toward “risk-of-religious-use criteria.” Boothby said he agreed partially.

Deputy Solicitor General Barbara Underwood, arguing for the program on behalf of the Justice Department, said the law establishing it “is constitutional because it is not only neutral but it does not” inculcate religion.

Boothby, former general counsel of Americans United for Separation of Church and State and now vice president of the Council on Religious Freedom, told the justices the issue at stake was the “principle that taxpayers should not be required to subsidize” religious education.

Under Chapter 2, the materials provided to the schools remain the property of local and state public education agencies. In Louisiana, religious schools were required to commit to using the materials only for nonreligious purposes and to file reports on their use. Monitoring could be conducted without warning.

The justices were specific Dec. 1 in some questions about the applications of church-state principles.

Chief Justice William Rehnquist asked McConnell if it would be permissible for the government to build a building for a religious school if it built one were for a public school. It would appear to be entanglement, but that would depend on how the law behind such an action was written, McConnell said.

Under questioning from Rehnquist, even Boothby, a strict separationist, acknowledged some aid may be permissible, citing some musical instruments.

“What if they played ‘O Come All Ye Faithful?,'” Rehnquist asked him.

He would not have a problem with that or any other song being played with the instruments, Boothby replied.

While it would be easy to determine if books were secular, computers would be a different situation, because they could be diverted for religious use, Boothby said.

Associate Justice Antonin Scalia later told Boothby there “is nothing that can’t be used” to teach religion.

Afterward, McConnell told reporters he agreed “government should not pay for the religious purpose of education,” but the “most important thing is neutrality” in which the government provides some educational materials for all students.

It “seems to me the court has few constitutional problems” with Chapter 2, “but they were worried about future cases,” McConnell said.

Melissa Rogers, new general counsel of the Baptist Joint Committee for Public Affairs, said in a written statement released afterward the high court should affirm the appeals court’s rejection of the program.

The BJC filed a friend-of-the-court brief opposing the program in order “to correct the misimpression that the First Amendment was intended merely to prevent favoritism of particular religions or coercion in religious matters.”

“Some of the aid in this case was religious in nature; other aid is highly capable of diversion to religious use. In a substantial and direct way, all of the aid is aid to the religious schools and their sacred missions,” Rogers said.

The Ethics & Religious Liberty Commission, the Southern Baptist Convention’s church-state representative, did not file a brief in the case.

Organizations filing briefs in support of Chapter 2 included the American Center for Law and Justice, Christian Legal Society, National Association of Evangelicals, Rutherford Institute, U.S. Catholic Conference, as well as 13 states.

In addition to the BJC, among those filing briefs opposing the program were the ACLU, Americans United, People for the American Way, National Education Association and National School Boards Association.

A decision in the case is expected before the court’s term concludes next summer.