What church leaders need to know
Article summary. This was an historic term for the United States Supreme Court. It rendered a number of sweeping rulings that will have a significant impact on American life. Three of those rulings are of special interest to church leaders. In one case, the Court ruled that a New Jersey law prohibiting the Boy Scouts from dismissing a gay activist scoutmaster violated the Boy Scouts’ first amendment right of association. In a second case, the Court upheld the constitutionality of a government program providing funds to both public and private schools (including church-affiliated schools) for teaching materials. In a third case, the Court ruled that the student-led prayers at the start of public high school football games violates the first amendment “nonestablishment of religion” clause.
The United States Supreme Court has issued three rulings that will be of interest to church leaders. These rulings are summarized below.
Case #1 – Gay Scout Leaders
The Supreme Court ruled that a New Jersey civil rights law requiring the Boy Scouts to use a gay activist as a scout leader violated the Boy Scouts’ first amendment right of association. When scouting officials learned from a newspaper article that one of their scoutmasters was a homosexual activist, they terminated his services, explaining that the Boy Scouts “specifically forbid membership to homosexuals.” The former scoutmaster sued the Boy Scouts claiming that it had violated a New Jersey “public accommodations” law by dismissing him. The New Jersey law prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation. The Supreme Court began its opinion by observing that “implicit in the right to engage in activities protected by the first amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This right “is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.” The court continued:
Government actions that may unconstitutionally burden this freedom may take many forms, one of which is “intrusion into the internal structure or affairs of an association” like a “regulation that forces the group to accept members it does not desire.” Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, “[f]reedom of association … plainly presupposes a freedom not to associate.” The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.
The Court noted that the general mission of the Boy Scouts is clear: “[T]o instill values in young people.” The Boy Scouts asserted that homosexual conduct is inconsistent with its values. To illustrate, a position statement promulgated by the Boy Scouts in 1991 states, “We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.”
The Court acknowledged that the right of association is not absolute, and may be “overridden” by regulations adopted to serve “compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” The Court rejected the argument that New Jersey had a compelling interest in so severely intruding on the Boy Scouts’ rights to freedom of association. As a result, the Court concluded that the first amendment “prohibits the state from imposing such a requirement through the application of its public accommodations law.”
The Court conceded that the public perception of homosexuality in this country has changed, and that homosexuality “has gained greater societal acceptance.” However, “this is scarcely an argument for denying first amendment protection to those who refuse to accept these views. The first amendment protects expression, be it of the popular variety or not …. [T]he fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the first amendment rights of those who wish to voice a different view.”
The Court concluded:
We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the state’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message. “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”
Application. This case has limited relevance to churches. The New Jersey public accommodation law exempted religious organizations from the ban on discrimination on the basis of sexual orientation in public places and programs. This case probably makes it even less likely that a church could be successfully sued for discriminating on the basis of sexual orientation in employment, membership, or in its programs or facilities. Boy Scouts of America v. Dale, __ U.S. __ (2000).
Case #2 – Government Aid to Church Schools
The Supreme Court ruled that the use of federal funds to provide secular and nonideological educational materials (including library materials, computer equipment and software, and textbooks) to both public and church-affiliated schools did not violate the first amendment’s nonestablishment of religion clause. As part of a longstanding school aid program known as “Chapter 2,” the federal government distributes funds to state and local governmental agencies, which in turn lend educational materials and equipment to public and private schools. The question addressed by the Court was whether Chapter 2 violates the first amendment’s “nonestablishment of religion” clause if some of the funds are used to provide educational materials to church-affiliated private schools.
Chapter 2 provides funding for a wide variety of educational materials, including library services and materials, reference materials, computer software and hardware for instructional use, and other curricular materials. Several restrictions apply to aid to private schools. For example, the “services, materials, and equipment” provided to private schools must be “secular, neutral, and nonideological.” In addition, private schools may not acquire control of Chapter 2 funds or ownership of Chapter 2 materials, equipment, or property. A private school receives the materials and equipment by submitting an application to a local educational agency detailing which items the school seeks and how it will use them. The agency, if it approves the application, purchases those items and then lends them to the school.
The Court noted that the first amendment prevents Congress from making a law “respecting an establishment of religion,” and that over the past 50 years it has “consistently struggled to apply these simple words in the context of governmental aid to religious schools.” However, the Court noted that in a 1997 case it provided some clarification by holding that government aid to religious schools generally will not violate the first amendment so long as it (1) has a secular purpose; (2) does not result in governmental indoctrination; (3) does not define its recipients by reference to religion; and (4) does not create an excessive entanglement. Since the parties to the lawsuit never questioned the first or fourth factors, the Court focused on the second and third.
Governmental Indoctrination
The Court noted that the question “whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action.” It continued:
In distinguishing between indoctrination that is attributable to the state and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government …. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.
The Court also emphasized the importance of determining whether government aid that goes to religious schools does so “only as a result of the genuinely independent and private choices of individuals” as opposed to an act of government: “For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment.”
The court concluded that the principles of neutrality and private choice prevented the government aid in this case from being reasonably “attributed” to the government.
Defining Recipients with Reference to Religion
Does Chapter 2 define the recipients of government aid by reference to religion? The Court ruled that it did not, since the aid was allocated on the basis of “neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.”
Application. This case represents an unequivocal recognition of the fact that some forms of government aid to religious schools are constitutionally permissible. Churches that operate primary or secondary schools should be familiar with the provisions of Chapter 2, which is now technically Subchapter VI of Chapter 70 of Title 20 of the United States Code, where it was codified by the Improving America’s Schools Act of 1994, Pub. L. 103-382. Mitchell v. Helms, __ U.S. __ (2000).
Case #3 – Prayer before Public High School Football Games
The Supreme Court ruled that student-led prayers at the start of public high school football games violated the first amendment’s nonestablishment of religion clause. A public high school adopted a policy permitting, but not requiring, the school’s “student council chaplain” to recite a nonsectarian, nonproselytizing prayer at the start of football games. This policy was challenged by two students, and their parents, as a violation of the first amendment. The school argued that the prayers were permissible since they were “private student speech” that was beyond the reach of the first amendment, which is a limitation on government action. The court agreed that private speech is beyond the reach of the first amendment, but it concluded that the prayers addressed in this case were not “private speech” but rather had to be attributed to the state (school). It based this conclusion on the following factors: (1) the prayers are authorized by a government policy and take place on government property at government-sponsored school-related events, and are broadcast over the school’s public address system which is under the control of school officials; (2) the pregame ceremony, during which the prayer is recited, is “clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot; (3) the school’s name “is likely written in large print across the field and on banners and flags”; (4) the crowd “will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name.”
The Court noted that “it is in a setting such as this that the board has chosen to permit the elected student to rise and give the invocation.” In this context the members of the listening audience “must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration.” Regardless of the listener’s support for, or objection to, the message, an objective student “will unquestionably perceive the inevitable pregame prayer as stamped with the school’s seal of approval.”
The Court listed other factors in support of its conclusion that the prayers were public rather than private speech: (1) the school allows only one student, the same student for the entire season, to give the invocation; (2) the invocation is subject to school regulations that confine the content and topic of the student’s message; and (3) the election by the student body of the student council chaplain ensured that “minority” religious views would be “effectively silenced.”
The Court concluded:
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” The delivery of such a message-over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as “private” speech ….
High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for “it is a tenet of the first amendment that the state cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.”
Application. “Private speech” cannot violate the nonestablishment of religion clause. The problem in this case, the Court concluded, was that the prayers at football games were not private speech. The school’s substantial involvement made the prayers “public” or governmental speech. The Court conceded, at the end of its opinion, that the first amendment does not prohibit “all religious activity in our public schools.” As examples, it cited cases that have allowed (1) religious student groups to meet on public high school property during noninstructional hours if the same privilege is granted to other student groups, and (2) religious organizations to meet on public school property if the property is made available to other community groups. It also acknowledged that “nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday.” However, it insisted that “the religious liberty protected by the Constitution is abridged when the state affirmatively sponsors the particular religious practice of prayer.” Santa Fe Independent School District v. Doe, __ U.S. __ (2000).
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