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By Kevin J. Hasson
http://www.jewishworldreview.com --
IF THERE IS ONE immutable truth about lawyers, it is this: lawyers hate to
wait. There is nothing more excruciating to a lawyer than waiting. Whether
it's waiting for an associate to find a case on point or waiting for coffee
in the morning, lawyers hate to wait. For better or worse, that's just what
we're doing this week. Waiting for key decisions to be handed down from the
U.S. Supreme Court and from the Third and Fourth Circuit Courts of Appeal.
They are cases that will have a significant impact on the future of
religious liberty in America.
One of the most important cases about to be decided is Mitchell v. Helms,
which involves a challenge to a federal program that loans instructional
equipment, including computers, to private and public schools, including
religiously affiliated ones. A federal district court decided the program
was constitutional, but the 5th Circuit appeals court ruled the other way,
relying on its determination that the aid advances the mission of
"sectarian" schools.
We noted in a brief to the court that it's time to
stop using the term "sectarian," because use of the word in cases like this
originated during a period in the 19th century when "sectarian" and
"nonsectarian" were legal terms of art with an unsavory flavor.
"Nonsectarian" didn't mean "nonreligious," it referred to what were then
known as "common schools," publicly funded schools that taught the "common"
religion, which was a variety of Protestant doctrine. The term "sectarian"
was an epithet used to describe schools that taught other, disfavored forms
of religion. And as to the educational aid program being challenged, a
number of recent Supreme Court decisions have upheld programs that grant aid
based on neutral, secular criteria regardless of the recipient. This
program should be upheld for the same reason.
The U.S. Supreme Court is also weighing Boy Scouts of America v.
James Dale. The New Jersey Supreme Court had held that the Boy Scouts were a
"public accommodation" under state law, and therefore subject to an
anti-discrimination statute preventing them from dismissing scoutmaster
James Dale because of his admitted homosexuality. We submitted a brief
arguing that reading the law this way threatens religiously affiliated
organizations in two critical ways. First, and most obviously, it threatens
their freedom of association by requiring them to put people in leadership
positions who don't share their specific vision of morals and character.
That's the central argument being made by the Boy Scouts in their defense.
But we pointed out to the court that the decision threatens freedom of
speech as well. Here's the reason. In the 42 states with public
accommodation laws like New Jersey's, it's increasingly common for people to
sue because of a Ahostile environment," and that's something than can be
found to exist based on speech alone. In other words, if the New Jersey
decision is allowed to stand, not only could someone like James Dale force
his way into a leadership position, he could then successfully argue that
the Scouts must change its position on homosexuality so that he doesn't have
to feel unwelcome. And that is a grave threat to the integrity of religious
organizations everywhere.
In the Third Circuit Court of Appeals, 9 year old Zack Hood is
waitingCalbeit more patiently than his lawyersCto hear whether his right to
read from his "Beginner's Bible" in public school will be protected. Zack
and his classmates were invited by their first grade teacher to bring a
favorite book to school, from which they'd be permitted to read a selection.
Zack brought his "Beginner's Bible," and chose a story called "Big
Family," the Torah's story about Jacob's return to his brother Esau.
The teacher refused to allow him to read it to the class. My organization
is representing Zack and believes that the teacher's censorship constitutes
impermissible discrimination in violation of the First Amendment. Zack
would have been permitted to read any other suitable story; the teacher's
refusal was based solely on the fact that this story originated in the
Bible. C.H. v. Oliva was heard by the full twelve-member panel of the court
in February of this year and promises to cause public outcry should the
court leave little Zack out in the cold.
And in the Fourth Circuit, we await a decision in Vincent Renzi, et
al. v. Connelly School of the Holy Child. We filed an amicus brief on
behalf of ourselves and six religious organizations in a case that has broad
implications for the extent to which the government can accommodate private
religious practice. For 50 years, zoning laws in Montgomery County,
Maryland had exempted school construction on church property from a
requirement that a special exception first be obtained from the county. A
federal district judge ruled last fall that the exemption violated the
Establishment Clause of the First Amendment, and ordered a halt to
construction then under way on a new building and two new parking lots. The
Becket Fund contends that in adopting the ordinance, Montgomery County was
implementing what is perhaps the most fundamental principle underlying both
religion clauses in the First Amendment: that the religious liberty of all
is best served when the government does not intrude on matters reserved for
the religious sphere. Protecting the right of churches, synagogues and
other religious institutions to be let alone, far from being an
unconstitutional act, is in fact "in the best of our traditions." Indeed,
the phrase is from Zorach v. Clauson (1952), in which the Supreme Court
deemed it not merely permissible, but laudable, when legislative bodies take
steps to accommodate private religious practice.
And so, the waiting game continues. Keep an eye out next week for
one or more of these decisions to be announced. I'll be back with further
analysis once the courts have
JWR contributor Kevin Hasson is president of The Becket Fund for Religious Liberty. Let him know what you think by clicking here.
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