Freedom For Religion
Nathan J. Diament, Esq.
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Freedom For Religion
by Nathan J. Diament, Esq.
Director, Institute for Public Affairs -- Union of Orthodox Jewish Congregations of America
This term, the Supreme Court may render its most significant decision
with regard to the relationship between "church" and state in 25 years.
On April 15, the Court will reconsider its 1985 decision in the case of
Aguilar v. Felton. In that decision, the Court ruled that remedial
education classes - to which all qualifying children are entitled by law
- could not be provided by public school special ed. teachers in
parochial school classrooms. Thus, for parochial school kids to receive
such critical instruction, they must retire to temporary trailers
located in the school parking lot.
The Aguilar decision unleashed a host of unintended consequences. It
has cost public school systems hundreds of thousands of dollars to lease
the trailers. It has diminished the quality of education that special
ed. Students receive. It yielded the creation of the now famous Kiryas
Joel Village School District; and the years of litigation over its
constitutionality which continues today. All of this and more in the
name of the constitutional mandate that Congress "shall make no law
respecting the establishment of religion."
Now, 12 years later, the Supreme Court has agreed to reconsider what
havoc Aguilar wrought. This reconsideration is remarkable in several
ways. First, the Supreme Court has not accepted a new case in which
parties are suggested that the Court ought to overrule Aguilar (much
like opponents to abortion rights argue for the overruling of Roe v.
Wade in any abortion case before the Court); rather, it has decided to
reconsider the ruling of Aguilar in Aguilar, through a procedural motion
by which parties to a case may ask a court to reconsider its prior
ruling due to changed circumstances or other considerations. Second,
five of the sitting justices have explicitly advocated this
reconsideration, while three have openly called for the reversal of
Aguilar in prior decisions. Third, it clearly foretells a turning point
in Supreme Court jurisprudence regarding the Establishment Clause.
Aguilar was a high point of the Supreme Court's reading of the
Establishment Clause as a mandate to divide religion from the state by a
wall of separation that is high and wide. Such an understanding might
trace its modern lineage to the Court's 1971 decision in Lemon v.
Kurtzman - another decision, not coincidentally, that has been
criticized and maligned by a majority of the sitting justices and
countless legal scholars almost as much as Aguilar. That decision
produced the aptly named "Lemon test" which held that for state action
to successfully survive an Establishment Clause challenge it must have a
primarily secular purpose, neither advance nor inhibit religion and not
excessively entangle government with religion. This stream of
constitutional jurisprudence turned the Establishment Clause on its head
- from a provision designed to ensure a religiously pluralistic society
to a blunderbuss aimed at removing any religious presence from the
"public square" and prohibiting any assistance to religious citizens or
communities from the state even if such assistance is made generally
available to all citizens upon the basis of neutral criteria.
While the more liberal elements of the American Jewish establishment -
through the offices of the American Jewish Congress, the Anti-Defamation
League and others - actively sought these outcomes in the Supreme Court,
the Orthodox community consistently opposed them and continues to work
to return the original purpose of the Establishment Clause. While we do
not suggest that the state should be permitted to establish or endorse a
particular religion, we do contend that the Establishment Clause permits
government support of religious communities and citizens in a manner
comparable to the government support given to agnostic and atheist
communities. The contention that government must remain "neutral"
toward religion is inappropriate in the context of the modern state. In
our highly regulated society the failure to offer special protections
for religious devotion is to ensure that the faithful will suffer
additional burdens as the price of fidelity to their faith, rather than
the special protection the Establishment and Free Exercise clauses of
the Constitution were designed to provide.
While the several sitting justices have roundly criticized the Lemon
test, it is clear that a new standard could not be agreed upon by five
justices required to replace it. The Supreme Court's invitation and,
now clear intention, to revise Aguilar, however, suggests that we are at
a significant constitutional moment; one in which the Court is likely to
review its past tortured readings of the Establishment Clause and begin
to steer its course back to a sensible middle ground that the
Constitution's framers intended all along. That middle ground
recognizes that religion is not a scourge to be denied any aid or
comfort by that state; but that religious citizens are as equally
entitled to full participation in our civic life on their own terms just
as much as any other group of citizens. In short, we may soon have a
constitution that once again guarantees freedom for religion rather than
freedom from religion; and not a moment too soon.
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