The Court’s rulings since the publication of Courting Disaster strongly reinforce the conclusion that another justice or two like Scalia and Thomas would radically alter the principle of church-state separation. In Good News Club v. Milford Central School, a 6-3 Court majority held, on free speech grounds, that a public elementary school that permitted private groups like the Girl Scouts to use school facilities after school hours could not prohibit an adult-led proselytizing group from conducting religious activities and instruction aimed at elementary school children immediately after school on school premises. Because the case was decided on summary judgment, however, a number of justices suggested that facts relevant to showing an Establishment Clause violation (e.g., that young children in these circumstances would reasonably perceive the religious group as having been endorsed by the school) were not in the record, and that the case should be remanded for development of the factual record. Five of the justices in the majority (Rehnquist, Scalia, Thomas, Kennedy, and O’Connor) disagreed. In an opinion written by Justice Thomas, they took a step toward lowering the wall of separation between church and state by reaching out to decide, even in the absence of such a factual record, that there was no Establishment Clause violation. Justice Breyer, concurring in the Court’s “conclusion,” would have allowed both parties to develop a factual record. The dissenting justices believed the Court was wrong to decide the Establishment Clause question.
Although he joined in the majority opinion in Good News Club, Justice Scalia also wrote a separate concurrence reiterating extreme views about the Establishment Clause. He restated his previously expressed belief that the Establishment Clause cannot ever be violated by private speech in a limited public forum, so long as the boundaries of that forum are drawn neutrally and not to favor religious groups. If adopted by the majority, the per se rule that Scalia articulated, giving conclusive weight to neutrality, would open a broad gap in the church-state wall. This rule has never been adopted by a majority of the Court. Yet, Justices Thomas and Kennedy and Chief Justice Rehnquist seem to agree with it, given their position last term in Mitchell v. Helms.
In Mitchell v. Helms, a 6-3 majority ruled that government may provide computers, library books, and similar materials to religious schools under the federal Chapter II program. The ruling departed from past precedent by requiring significant evidence that such aid is used for religious purposes in order to be considered unconstitutional. Justices Thomas, Scalia, Rehnquist, and Kennedy, however, would go much further. They claimed that virtually any aid to religious schools is permissible, even if pervasively sectarian schools use it for religious purposes, as long as the material provided is not religious in nature and is provided equally to non-religious schools. Justice O’Connor labeled this a “rule of unprecedented breadth” and five justices rejected it. As a result, contrary to the views of some right-wing advocates, it is likely that the current Court majority remains undecided on the question of school vouchers, which the Court has recently been asked to take up in the Cleveland case. A decision as to whether the Court will hear that case is likely to be issued in October. With the addition of one new justice in the Scalia-Thomas mold, however, it is clear that the Court would approve vouchers as well as even more extensive aid to religious schools.
Further indication that Justices Scalia and Thomas and Chief Justice Rehnquist would endanger key church-state principles is found in their dissent this term from the Court’s denial of certiorari in City of Elkhart v. Books. In that case, the 7th U.S. Circuit Court of Appeals had found that a six-foot high monument containing the Ten Commandments situated on the lawn of a city municipal building had the unconstitutional purpose and effect of advancing religion. That court cited the Supreme Court’s Stone v. Graham decision, in which the Court recognized that the Ten Commandments “are undeniably a sacred text in the Jewish and Christian faiths” and struck down a state law requiring posting of the Ten Commandments in public school classrooms. The 7th Circuit stated “we do not think it can be said that the Ten Commandments, standing by themselves, can be stripped of their religious, indeed, sacred, significance . . ..” Dissenting from the majority’s decision not to hear City of Elkhart, Rehnquist, Scalia and Thomas opined that they found the Court’s prior decision in Stone v. Graham “hardly controlling,” and expressed the view that the placement of the monument outside a municipal building housing the local courts and prosecutor “emphasize[d] the foundational role of the Ten Commandments in secular, legal matters.”
The dissent from the denial of certiorari in City of Elkhart provoked an unusual written “statement” from Justice Stevens, who pointed out that the dissenters had completely ignored the fact that “the first two lines of the monument’s text appear in significantly larger font than the remainder... Those lines read: ‘The TEN COMMANDMENTS – I AM the LORD thy God.’” According to Justice Stevens, “The graphic emphasis placed on those first lines is rather hard to square with the proposition that the monument expresses no particular religious preference.”
At the end of the Court’s last term, Scalia was joined by Thomas and Rehnquist in dissenting from the Court’s decision not to review another appellate ruling dealing with the separation of church and state. The 5th Circuit’s decision in Freiler v. Tangipahoa Parish Board of Education struck down a school district’s anti-evolution disclaimer. Scalia and Rehnquist (Thomas was not yet on the Court) had dissented from the Court’s 1987 decision in Edwards v. Aguillard, which struck down a state law that prohibited the teaching of evolution unless creationism was also taught. In the dissent from the denial of certiorari in Freiler Scalia wrote: “In Edwards v. Aguillard, we invalidated a statute that required the teaching of creationism whenever evolution was also taught; today we permit a Court of Appeals to push the much beloved secular legend of the Monkey Trial one step further.”
In another dissent late last term from a divided decision protecting religious liberty, Scalia, Thomas and Rehnquist voiced their extreme views on church-state separation. In Santa Fe Independent School District v. Doe, a 6-3 Court majority held that a Texas public school district’s practice of opening high school football games with captive audience “student-led” prayer was unconstitutional. The majority rejected the demand of dissenters Scalia, Thomas and Rehnquist that the Court overturn or ignore its landmark 1971 Lemon v. Kurtzman ruling, as well as the dissent’s charge that the majority showed “hostility” towards religion.