"It was the best of times, it was the worst of times...."
Charles Dickens' famous opening words from A Tale of Two Cities may be a clich\xe9, but they came ineluctably to mind as the Supreme Court term concluded in June.
For church-state separationists, it was indeed the "best of times" at the high court on the issue of government-sponsored prayer at public schools. But on the other great church-state question--tax aid to religion--it was the "worst of times," or at least close to it.
First the good news: The high court's decision in the Texas football prayer case was an extraordinary victory for individual rights, common sense and a strong public school system that welcomes all children.
Justice John Paul Stevens and five of his colleagues rightly concluded that public school officials have no business setting up schemes to force majority-rule prayer on a diverse community. Although the Santa Fe School Board tried to hide its controlling role and claim the devotions were "student-led." Stevens and company saw through the flimsy fa\xe7ade.
Students may have offered the invocations at football games, Stevens concluded, but government and school officials were really calling the shots. "These invocations," said Stevens, "are authorized by a government policy and take place on government property at government-sponsored school-related events."
The court majority was particularly disgruntled that students were allowed to vote on whether to have an invocation, then to choose the classmate to offer it. "[T]he majoritarian process implemented by the District," observed Stevens, "guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced."
That's not the way it's supposed to work in America. The justices reiterated their view that officially sanctioned prayer at public school events inevitably sends the message to religious minorities and nonbelievers that they are outsiders, not full members of the community.
"[N]othing 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," observed Stevens. "But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer."
In a nation where some 2,000 faiths and denominations thrive, ensuring that prayer is a personal choice, not a political football, is not only constitutionally sound but also eminently sensible. Our public schools could not function if they were to become sectarian battlegrounds.
If only the justices had been as wise on the other church-state issue before them. In an opinion written by Justice Clarence Thomas, the court allowed the government to provide computers and other resources to parochial schools.
Ruling in a Louisiana case involving the federal "Chapter 2" program, Thomas and five other justices said lending equipment to church schools does not violate the separation of church and state. In so doing, they overturned two important decisions from the '70s and held that aid to "pervasively sectarian" schools does not necessarily advance religion.
Thomas insisted that subsidies for religious institutions are perfectly legal as long the government funds secular institutions as well. As a matter of fact, he argued that failing to subsidize parochial schools was a form of bigotry.
This decision is bad news for church-state separationists, but it was not the total disaster it could have been. Although Justices Sandra Day O'Connor and Stephen Breyer upheld the program in question, they stopped far short of the dangerous extremes endorsed by Justice Thomas and his allies, William Rehnquist and Antonin Scalia.
With these two decisions, however, the high court has taken America to a strange place. Tax-supported public schools are quite properly forbidden to inculcate religion. They may not sponsor prayer or other religious devotions. They may not display the Ten Commandments or teach creationism in science class. Even moments of silence are unconstitutional if the record shows that officials intended them for prayer.
Yet a court majority, at the same time, now allows significant tax aid to religious schools where prayer and other mandatory worship services take place every day and where religion is taught in every class. Such schools freely discriminate on religious grounds in hiring and exclude children who are members of the "wrong" religion. Thus taxpayers are forced to support not only discrimination, but also indoctrination in a faith they may not believe in.
It just doesn't make sense.
The opinion in the Louisiana case by Justices O'Connor and Breyer suggest that they view the tax aid issue as one dependent on careful examination of the facts in each case. That means they can still be won on the next major conflict likely to come before the court--school vouchers.
The stakes are high. If the court decides that broad tax funding of religious schools and other ministries is permissible, at least half of the wall of separation between church and state will have been destroyed. Our right to support only the religious institutions of our free choice will be history, and our public schools will be slowly bled dry as sectarian interests raid the treasury to support their private schools.
It will take a monumental effort to make sure that does not happen.