July 10, 2000

TO: JCPA Member Agencies

FROM: Guila Franklin Siegel, Associate Director, Domestic Concern
Leebie Mallin, Program Associate, Domestic Concerns

RE: Supreme Court Term Roundup --- Conference Call Summary Notes

On Wednesday, July 5, 2000 the JCPA convened a conference call to review the recently-completed 1999-2000 Supreme Court term, and discuss its long-term significance for the Jewish community. Presenters were Marc Stern, Assistant Executive Director, American Jewish Congress; Steven Freeman, Associate Director, Civil Rights Division, Anti-Defamation League; and Richard Foltin, Legislative Director and Counsel, American Jewish Committee.

Mitchell v. Helms --- School aid

Marc Stern began the call with a discussion of the Mitchell v. Helms decision. The case involved a challenge to a federal funding program that provides instructional equipment, such as computers and film projectors, to schools, including private sectarian and non-sectarian institutions. The 5^th Circuit U.S. Court of Appeals held the law unconstitutional on church-state separation grounds, relying on two 1970’s Supreme Court opinions, Meek v. Pittinger and Wolman v. Walter. However, in a 6-3 opinion announced on the last day of the term, the Supreme Court reversed the lower court’s ruling, holding that the funding program did not run afoul of the Establishment Clause.

What type of aid is now acceptable, in the wake of this ruling?

Stern explained that as a result of the Mitchell v. Helms decision, the government can provide any intrinsically secular materials to parochial schools, provided that the materials are not actually used for religious purposes. This is a substantial change and contravenes current JCPA policy on government aid to parochial schools.

The Court’s opinions

There were three written opinions. In the plurality decision, Justices Thomas, Rehnquist, Scalia and Kennedy invoked a sweeping neutrality interpretation of the Establishment Clause of the First Amendment. That is, whatever government aid is provided to public schools can be provided to parochial schools. In this view, the Establishment Clause basically functions as an equal protection clause. In their dissent, Souter, Stevens and Ginsberg argued that Meek and Wollman continue to be good law, and that the Establishment Clause mandates a ban on government aid to parochial schools. Stern noted that Souter’s opinion, which contains a very useful review of the Court’s holdings in the private school aid area, reads much like the brief that many Jewish organizations, including the JCPA, filed with the Court last year in this case.

The commanding opinion was the concurrance written by Justice O’Conner and joined by Justice Breyer, which challenges the "strict neutrality" view outlined in the plurality holding, and emphasizes that if a program results in government resources being used for religious purposes, regardless of the neutral intent, that program is unconstitutional. Stern noted that O’Connor did not clearly explain what the Clause does require other than neutrality, in her view. It is evident from her opinion that O’Conner would reject direct per capita funding to parochial programs. One might think that O’Connor would therefore hold vouchers to be unconstitutional. However, other language in her opinion leaves that question open.

The distinction between Justices O’Connor and Breyer’s concurring view and the views of the dissenters is that O’Connor believes that one must examine whether government aid to religious institutions is actually being used for a religious purpose, while the dissenters would invalidate a program on the grounds that it could be used for such purposes, because it presents an unacceptable risk to constitutional principles. Those who joined the plurality opinion would find it irrelevant even if the resources had actually been used to promote religion.

During the ensuing discussion period, it was noted that the entire issue of "3T’s", i.e. transportation, textbooks, and technology for private religious schools, has now become strictly a public policy issue, rather than a constitutional dispute.

Sante Fe v. Doe --- School Prayer

Next, Steve Freeman summarized Santa Fe v. Doe, which, in a 6-3 decision, upheld a lower court ruling invalidating prayers conducted prior to public high school football games, where the prayers took place using school facilities and equipment and were invoked before a school-gathered captive audience.

Writing for the majority, Justice Stevens focused on the fact that the school district tried to circumvent the impression that it was sponsoring the prayer by having students elect the speaker who would deliver the invocation. Stevens said doing so put students in the position of campaigning for the right to speak, thereby favoring majoritarian religious views over minority ones. He also pointed out that any objective listener to the prayer would assume that the school was endorsing its religious message.

In striking down the school policy, the majority was careful to reiterate the right of public school students to engage in private voluntary prayer. In a forceful dissent, Justice Thomas, joined by Justices Scalia and Rehnquist, argued that the majority decision "bristled with hostility" to religion.

Freeman observed that Sante Fe was an interesting case because of the political context of the upcoming presidential election. The court below ruled that prayer at a school football game was unconstitutional, based upon the clear precedent of Lee v.Weissman. The attorneys general of eight states, including Texas, with the support of its governor George W. Bush, filed a brief asking the Supreme Court to review the case. In the wake of the Court’s decision, the prevailing climate in Texas seems to be to find another way to include prayer in public school settings. Freeman commented that it will be worth watching how Texas school districts are instructed to comply with the Court’s ruling.

Freeman noted that the Supreme Court seems to be moving in two different directions in the area of church-state law. On the one hand it is consistently finding attempts to introduce prayer into public schools unconstitutional, while simultaneously determining that public funding for religious schools can in many circumstances be constitutional. The majority of the organized national Jewish community, which has advocated for the preservation of "no aid" rules, is on "shaky ground" at the moment in this area, observed Freeman.

Boy Scouts of America v. James Dale – Exclusion of homosexuals from Boy Scouts

Freeman then discussed Boy Scouts of America v. James Dale, in which the Court ruled that the Boys Scouts could exclude homosexuals from their ranks, in light of the organization’s right of expressive association. A New Jersey court had previously held that since the Boy Scouts are a public accommodation, the organization was subject to a state law prohibiting discrimination based upon sexual orientation. The Supreme Court differed and said the Boy Scouts’ right of expressive association outweighed its status as a public accommodation. The Court accepted at face value that the organization’s mission statement, which refers to inculcating its members to be "morally straight," signals an intent to oppose homosexuality. This conclusion was criticized by Justice Stevens, who argued in his dissent that the Court had an obligation to make its own inquiry into this question, rather than merely relying on the statements submitted by the Scouts.

Freeman explained that this was a case on which Jewish organizations differed. The ADL filed a brief in support of the ousted scout master, in the belief that the Boy Scouts are indeed a public accommodation, and therefore anti-discrimination laws must trump the group’s free association rights. Therefore, for the ADL and other civil rights organizations, this ruling is a disappointment.

AJCongress adopted a different theory of the case, which was outlined by Marc Stern. Stern explained that while AJCongress also regrets the decision, there is a large silver lining for the Jewish community, in that the holding provides greater clarity regarding the right of organizations to exclude individuals based on criteria such as religion. The Supreme Court was unanimous in the fact that the right to private association will outweigh public accommodation concerns where the organization has a clear policy that would warrant the discriminatory practice.

As an example of the long-term implications of this case for the Jewish community, Stern cited Camp Ramah’s recent decision to accept only campers whose mothers are Jewish. While before Dale, Camp Ramah’s policy was open to challenge based upon anti-discrimination concerns, it is now on sound legal ground. Stern noted, however, that the Boy Scouts and other groups that utilize their right of association to exclude minorities in a wrongful way will likely pay in terms of their reputation. As gay and lesbian civil rights activists commented in the wake of the announcement of the Court’s decision, this case might serve as a "pyrrhic victory" for the Boy Scouts, because they will no longer be perceived as a mainstream all-American group, but rather as an intolerant, exclusionary entity that will be shunned by public schools and others.

Stenberg v. Carhart --- So-called "Partial-birth" abortion law

Richard Foltin addressed the Supreme Court’s decision in Stenberg v. Carhart, which found Nebraska’s so called "partial birth abortion" law unconstitutional. Foltin pointed out that the 5-4 decision has led many to declare that the Court is one justice away from overturning a woman’s right to an abortion. He emphasized that this is not the case: while three justices would indeed overturn Roe v. Wade today , six justices remain committed to the principles enunciated in the Casey decision in 1992.

The majority opinion held that the statutes in question were too vague in their wording, and could therefore potentially include other abortion procedures as well, thereby placing an undue burden on a woman’s right to have an abortion. The opinion also cited the failure to include exceptions for the mother’s health. Foltin said O’Conner’s concurring opinion was the most interesting, because she seemed to be inferring that she would endorse a law that is more clearly directed only at "partial birth" procedures and that has a health exception. The dissenters bitterly argued that abortion is governed by "exceptionist treatment" on the Court that is unlike any other subject. Foltin concluded that the decision constituted a victory for the majority of the Jewish community that supports abortion rights.