WASHINGTON (BP)–The U.S. Supreme Court may have issued what appear to be somewhat conflicting rulings on both church-state relations and pornography during its recently completed term, but one arena where a majority of justices did not speak in contradictions was in its protection of a mother’s nearly unfettered access to abortion.
On the final day of the 1999-2000 term, the high court not only confirmed it would not permit any meaningful restriction on even the most hideous form of abortion, but it strengthened a pregnant woman’s right not to hear a dissenting opinion on her way to having her unborn child killed.
In two of four opinions released June 28, the Supreme Court struck down a Nebraska law banning a technique known as partial-birth abortion but upheld a Colorado statute prohibiting pro-life sidewalk counselors from approaching uninvited within eight feet of women preparing to enter abortion clinics.
The combined effect of the opinions was not lost on those inside or outside the court.
The majority’s abandonment of legal principle in its partial-birth abortion ruling “must be chalked up to the court’s inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue,” Associate Justice Antonin Scalia, who was in the minority in both decisions, wrote in his dissent in the Nebraska case. “It is of a piece, in other words, with Hill v. Colorado,” the decision restricting speech outside an abortion clinic.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said of the rulings, “The majority of this court is so committed to the preservation of its supreme value, abortion, that it denies other explicitly guaranteed constitutional rights when they may conflict with the recently discovered right to abortion. That is made manifestly clear by their decision in Hill v. Colorado, where in order to protect an undisturbed right to abortion they explicitly deny the guaranteed First Amendment right of freedom of speech, as was not so gently pointed out to the majority by their dissenting court colleagues.”
While the high court demonstrated a consistent commitment to abortion rights, it did not seem, at least superficially, to be as constant during the term when it came to church-state separation and pornography.
On its final day, the court ruled federal aid could be used to provide books, computers and other equipment to religious schools. Only the week before, however, the justices found unconstitutional prayer offered over a public-address system before a high school football game even when it is composed and voiced by a student selected by his peers.
The justices also during the term issued decisions both prohibiting and lifting restrictions on sexually explicitness. The court upheld an Erie, Pa., ordinance banning nude dancing but struck down a federal law requiring cable-television operators to scramble totally transmissions on pornographic channels, such as the Playboy Channel, that have not been ordered by subscribers. The latter was particularly an attempt to protect unsupervised children from viewing and hearing sexually explicit material available as the result of a cable phenomenon known as signal bleed.
While he said he would not characterize the church-state rulings as either inconsistent or contradictory, Carl Esbeck of the Christian Legal Society told Baptist Press it is “almost as if they came from two different courts or two different eras of the same court.”
The government-aid decision “is about government benefits, and there, of course, the general direction of the court is toward equality of treatment or what jurists call the neutrality principle,” said Esbeck, director of CLS’ Center for Law and Religious Freedom. “Whereas the Santa Fe school district case, there what the court is trying to do, as I understand it, is prevent governmental interference in things that are inherently religious, such as prayer. When you characterize the two cases like I did, then they’re not inconsistent.
“In both cases, what the court is doing is trying to say that individual choice should be left up to the individual not the government. So, whether to be present during a prayer, they’re saying that should be each individual’s choice. … And whether to choose a public school or a religious school is an individual choice, and the government is not going to try to skew that choice by giving an inequitable distribution of benefits.”
CLS filed friend-of-the-court briefs in both cases, supporting the government-aid program in one case and the school district in the other.
Citing decisions on public-school prayer, homosexuality, abortion, age discrimination, violence against women and the rights of criminal suspects, Esbeck called it “maybe overall the most important term of the last 25 years. From my own jurisprudence, the court got more right than it did wrong.”
In other opinions on moral and family issues during the term, the court:
— Upheld the Boy Scouts of America’s freedom to bar homosexuals from serving as troop leaders. The justices rejected a decision by the New Jersey Supreme Court that found the Boy Scouts could not discriminate on the basis of “sexual orientation,” which includes homosexuality. The ruling was a relief to churches and other religious organizations. The ERLC’s Land said most Southern Baptists understood the burden the government tried to put on the Boy Scouts “it might well seek to impose tomorrow on religious organizations and the day after on individual churches themselves.”
— Affirmed parental rights by upholding a ruling by the Washington Supreme Court that two of that state’s laws allowing a wide range of third parties to seek the right to visit children despite parental objections violated the constitutional rights of parents.
— Ruled public colleges and universities may use mandatory student activity fees to fund organizations Christians and other students object to on ideological or political grounds. The justices unanimously overturned lower-court opinions that found the free speech and association rights of three law students had been violated by the University of Wisconsin-Madison. The students, all conservative Christians, had specified 18 student-funded organizations they objected to, including pro-homosexual, pro-choice and socialist ones.