Reshaping the Wall

THE wall of separation between church and state is being refashioned by a new judicial philosophy. While recent United States Supreme Court rulings do not seem out of line in their outcomes, the legal concepts by which the court's majority arrived at these decisions represent a sharp change from the past. In cases involving school Bible clubs and religious ceremonies of American Indians, the justices have departed from longtime precedents interpreting the First Amendment's Establishment and Free Exercise clauses.

This new reasoning, if carried to extreme by a conservatively controlled court, could eventually lead to allowing prayer in the public schools; opening the door to government subsidy of parochial institutions; and further restricting the practice of religion, particularly by minority denominations.

All these effects are inconsistent with the great tradition of religious liberty in the United States.

The high court's finding, which upholds the constitutionality of Congress's 1984 Equal Access Act, permits students to hold religion-related meetings on high school campuses as part of a school's extracurricular program. The case in point involved a group of secondary-school students in Omaha, Neb., who brought suit against their school district after they were denied official recognition as a Christian Bible club.

The students claimed that their free speech rights were being set aside. School officials countered that, under federal law, they could deny the Bible club access to the campus, since its purpose was not curriculum-related.

Ruling for the students, the high court agreed eight to one that the Equal Access Act does not violate the Establishment Clause in the US Constitution because it does not coerce religious activity or unlawfully advance religion in the public schools.

The court was splintered in its analysis, however, with Associate Justice Sandra Day O'Connor writing for a plurality and holding that a school could ban all activities not related to the curriculum. In so doing, she said it would not be permitted to discriminate on the basis of religious, philosophical, or political points of view.

Associate Justices William Brennan Jr. and Thurgood Marshall - usually staunch advocates of separation of church and state - voted with the majority in upholding the 1984 congressional statute. But the high court's most liberal twosome said that this act was constitutional only if school officials distanced themselves from religious clubs' speech so as not to appear to endorse it.

Justices Anthony Kennedy and Antonin Scalia had no objection to such endorsement if it was not coercive and if the club's activity furthered the intellectual development of the students.

Associate Justice John Paul Stevens, the lone dissenter, said that the Equal Access Act, as interpreted by his colleagues, comes ``perilously close'' to allowing organized school prayer and leaves local education authorities little discretion in such matters.

Presumably, school districts would now have to ban all extracurricular activities to avoid unconstitutional sanctioning of religious clubs on campus.

The ruling in this case, Westside Community Board of Education v. Mergens, seems to modify a 1981 high-court decision - Widmar v. Vincent - that allowed student religious groups to meet on public university campuses. The justices suggested that they might oppose sanctioning such activities for students below college level, who could be more impressionable.

If the Equal Access case suggests a judicial rethinking on certain Establishment Clause issues, the ruling in Department of Human Resources of Oregon v. Smith indicates an important shift of the Supreme Court's thinking on free exercise of religion.

Here the court upheld the firing of and denial of unemployment benefits to two American Indian state workers, who used peyote in a religious ceremony. Peyote is a nonaddictive but hallucinogenic drug.

Associate Justice Antonin Scalia, who wrote the majority opinion, noted that the workers were drug-rehabilitation counselors employed to teach the wrongs of drug use.

Their use of peyote could have been enough to justify their dismissal. The argument that government has a ``compelling state interest'' to limit the use of hallucinogenic drugs could well override, in this instance, the long-established ``preferred'' status of religion precept.

The Court through Justice Scalia, however, chose to knock the pins out from under the ``preferred'' status philosophy, holding that religion is preferred only when it does not conflict with other preferred rights, such as freedom of speech.

Justice O'Connor dissented, claiming that this reasoning radically departs from First Amendment jurisprudence. She insisted that the ``compelling state interest'' test is paramount in preserving religious freedom.

Various religious groups last week sought a rehearing of the Oregon case, but the justices denied it.

The Scalia interpretation of religious preference could be a setback to those who are challenged for engaging in nontraditional religious practices, such as American Indians, Christian Scientists, and Jehovah's Witnesses. It opens the door to possible abuse of free exercise by watering down with caveats the preferred status of religion.