NC IfdS
Blurring The Line
On Church-State
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he always murky border
between church and
state separation became
a little cloudier with a
pair of Supreme Court deci-
sions in cases involving reli-
gious activities at public
schools.
The decisions were seen as
giving new encouragement to
the Christian Right. At the
same time, the new rulings
preserved the basic bench-
mark against which church-
state questions have been
decided by the Court for the
past two decades — a major
relief to most Jewish activists
who support a clear and strong
church-state wall.
In the first case, the court
let stand without comment a
Texas appeals court ruling
that permitted prayer at a
public school graduation cere-
mony in Houston.
That seemed to contradict a
decision in last year's Lee v.
Weizman case, in which the
court ruled such prayers un-
constitutional.
The difference, according to
the court, was that the prayers
in the Houston case were
planned and led by students,
while the controversial prayer
in the Weizman case was led
by a clergyman.
That was good news for
evangelical Christian groups,
which responded to last year's
decision by urging students
around the country to organize
their own prayer sessions.
The second case, Lamb's
Chapel v. Center Moriches
Union Free School District, in-
volved the rejection by a Long
Island school district of a
church group's application to
use school facilities to show a
film on child rearing.
In a 9-0 decision, the court
ruled that denying the church
the same access provided to
nonreligious groups constitut-
ed a violation of freedom of
speech.
That ruling, while not un-
expected, did not please most
Jewish activists.
"We were disappointed,"
said Michael Lieberman, coun-
sel to the Washington office of
the Anti-Defamation League,
a group that filed an amicus
brief in the Lamb's Chapel
case. 'This decision, along with
the Texas case, encourages
those in our society who be-
lieve that organized religious
activity has a legitimate place
in the public school system."
But the case was not a clear
cut test of church-state sepa-
ration, he said. The American
Civil Liberties Union, for ex-
ample, had come down on the
side of the school district, ar-
guing that providing equal ac-
cess to school facilities was a
simple case of freedom of
speech.
ADL, Mr. Lieberman said,
is also concerned that the
Lamb's Chapel case could open
the door to increased access to
public school facilities by ex-
tremist groups.
The good news, he said, was
that the court did not use
Lamb's Chapel as the vehicle
for overturning the so-called
Lemon test — a benchmark
case against which courts have
measured church-state issues.
In a majority opinion writ-
ten by retiring Justice Byron
R. White, the justices argued
that providing after-hours ac-
cess to school facilities for re-
ligious groups would not have
constituted the official "estab-
lishment" of religion by the
government, under Lemon test
standards.
The Lemon test lays down
some specific rules for judging
a government practice in
terms of church-state suit-
ability. To pass the test, a gov-
ernment practice must have
some secular purpose, it must
not have the "primary effect"
of advancing a religion — and
it must not lead to excessive
government entanglement
with religion.
In a separate concurring
opinion, Justice Antonin Scalia
used some colorful allusions to
attack the Lemon test.
"Like some ghoul in a late-
night horror movie that re-
peatedly sits up in its grave
and shuffles abroad, after be-
ing repeatedly killed and
buried, Lemon stalks our Es-
tablishment Clause jurispru-
dence once again, frightening
the little children and school
attorneys," he wrote.
But his fellow justices did
not agree, and the Lemon test
has survived one more round.
"That's good news, because
it represents the view that
there has to be a substantial
separation between religion
and the government, and that
equality alone is not the test,"
said Marc Stern, legal director
for the American Jewish Con-
gress. "What that means is
that it is appropriate for there
to be special restrictions on re-
ligion." ❑