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Jewish World Review Feb. 26, 2001 / 3 Adar, 5761

George Will

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Common Sense and the Constitution


http://www.jewishworldreview.com -- THE Supreme Court has not yet granted certiorari, agreeing to hear Zachary Hood's case. However, this Wednesday the court will hear arguments in another case which, if sensibly decided, might effectively refute the Medford, N.J., public school that considered Zachary's literary tastes in first grade unconstitutional.

Zachary's teacher allowed proficient readers to read to the class a story of their choosing. Zachary chose "A Big Family" from The Beginner's Bible, the full text of which is:

"Jacob traveled far away to his uncle's house. He worked for his uncle, taking care of sheep. While he was there, Jacob got married. He had 12 sons. Jacob's big family lived on his uncle's land for many years. But Jacob wanted to go back home. One day, Jacob packed up all his animals and his family and everything he had. They traveled all the way back to where Esau lived. Now Jacob was afraid that Esau might still be angry at him. So he sent presents to Esau. He sent servants who said, 'Please don't be angry anymore.' But Esau wasn't angry. He ran to Jacob. He hugged and kissed him. He was happy to see his brother again."

The story mentions neither G-d nor miracles, but Zachary's teacher banned it, saying it amounted to devotional reading of the Bible and "might influence" other children. The school principal called it "the equivalent of praying."

A trial court acknowledged that speech restrictions must be "viewpoint neutral," yet sided with the school because censoring Zachary prevented the misperception by children that the school endorsed religion. However, leaving aside the bizarre notion that schools espouse whatever speech they permit, there is this problem: It is established law that categorical discrimination against religious speech is in and of itself viewpoint discrimination.

Which brings us to the case that will be argued Wednesday, that of the Good News Club v. Milford Central School in upstate New York. The club, which has about 25 members ages 6 through 12, describes itself as "a group of boys and girls meeting one hour a week for a fun time of singing songs, hearing a Bible lesson, and memorizing Scripture."

School policy allows after-school discussions by outside groups whose interest is "instruction in any branch of education, learning or the arts" or any matter "pertaining to the welfare of the community." However, it is also policy that "school premises shall not be used by any individual or organization for religious purposes."

The school first said the club was barred because the school is off limits to all "religious groups." Then it said the problem was that the club's activities were "the equivalent of religious worship." Then it said the problem was "religious instruction and Bible study." Then it said the club would be allowed to meet if it were using the Bible from a "historical" perspective rather than "to promote the Gospel."

The school's aim is to ensure that "students in its charge are not left with the impression" that it "endorses religious instruction in its school, or that it advances the beliefs of a particular religion or group thereof."

The club lost in a divided appeals court that said the club went beyond presentation of moral values to an "additional layer" of speech that espoused a "Christian viewpoint," making it impermissible religious instruction. Therefore excluding the club was merely "subject matter discrimination," and constitutional, rather than unconstitutional "viewpoint discrimination."

But surely that distinction collapses into a muddle. As a dissenting judge said in siding with the club, "When the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters." And the Supreme Court has said that a constitutional difference between religious "speech" and religious "worship" lacks a foundation in the Constitution and is "judicially unmanageable."

The Supreme Court should rule for the club by accepting the argument made by Zachary's public interest lawyers from the Becket Fund that whenever government decides to suppress a particular kind of speech in order to avoid seeming to endorse it, that decision is inescapably based on the viewpoint expressed in the suppressed speech. If the Supreme Court rules that way, it might grant certiorari in Zachary's case and remand the case to the appeals court for a judgment consistent with the club ruling.

Now, reread "A Big Family," substituting the names, say, Kevin and Bruce for Jacob and Esau. If that makes a constitutional difference, courts have built a wall of separation between the Constitution and common sense.



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