Justices taking new look at church-state issues SUPREME COURT Cases concern after-hours school use and special aid for parochial student

February 25, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Turning back and forth from lofty and complex constitutional questions to narrow issues about the difference between a sign-language interpreter and a mechanical hearing aid, the Supreme Court delved deeply into new religious controversy yesterday.

For two lively hours, the justices quizzed five lawyers in a pair of cases that may make new law on the right of parochial school students to government aid and on the power of local officials to keep public schools from being used as churches.

The court has been divided for years over how far the Constitution goes to separate government and religion, and yesterday's hearings made it appear the court still may be far from a consensus on that question. Justices taking an active part seemed, at times, to be on several sides of the constitutional disputes.

Part of the problem is that five of the current justices are dissatisfied with the complex formula the court has been using for 22 years to sort out what government may or may not do regarding religion.

At one point yesterday, Chief Justice William H. Rehnquist suggested that the court has been trying to draw too fine a line between what it will allow and commented: "Maybe we should try to straighten it out."

Sitting beside him, Justice Byron R. White was heard to say in a stage whisper: "Be careful, be careful."

The most significant of the two cases heard yesterday, in its potential for modifying church-state law, is a plea by a now-graduated parochial school student from Tucson, Ariz., to get back $28,000 his family paid for a sign-language interpreter.

The youth, James Zobrest, who will be 19 next week, has been deaf since infancy. His parents sent him to a Roman Catholic high school in Tucson and asked the school district to pay for the interpreter under a federal aid program for the disabled.

The school district refused, saying that the interpreter would be a channel for the religious dogma that runs through all courses at the school, making the expenditure unconstitutional. Federal courts agreed.

The Zobrests' lawyer, William B. Ball of Harrisburg, Pa., a key lawyer in many of the court's most significant religion cases, argued that a sign-language interpreter was only a translator, "not an image of authority in any sense that a teacher is."

He ridiculed the idea that Mr. Zobrest's schoolmates would have seen the state-paid interpreter as a symbol of government support to religion. "Would they say, 'It's, like, awesome: right here in chem lab, we are seeing a violation [of the Constitution's First Amendment clauses on religion]!' " Their more likely reaction, he said, was that "the School District is helping Jim; that's neat."

Mr. Ball appeared to have the most difficulty with Justice David H. Souter, who insisted that an interpreter was "as necessary as the priest or the teacher" to the educational message in a Catholic school.

When a federal government lawyer rose to help press the family's claim, Justice Antonin Scalia, who normally tends to support government aid to religion, commented that he was "a little concerned" and "troubled" that a public employee -- the interpreter -- would be sent "to listen to sectarian theology, understand it, and translate it."

But Acting Solicitor General William C. Bryson said the court's past rulings in religion cases would not be violated by that gesture because the interpreter was like a "technician," just "mouthing words."

But the school district's attorney insisted that a state-paid interpreter in a Catholic school would be conveying to the student such religious ideas as "there is life after death" and "Jesus Christ is the son of God, he died to save us from sin."

Under questioning from Justice Scalia, the school district's lawyer, John C. Richardson of Tucson, said the school district had no problem with providing speech therapy for the deaf student and would have no objection to providing other kinds of neutral help for a disabled student at a parochial school, such as a driver or someone to push a wheelchair. A state-provided hearing aid would be permissible, he said, if the student did not wear it only at school.

In the other case yesterday, the justices spent a confusing hour with two lawyers, exploring a wide array of potential scenarios on opening or closing public school buildings for use by outside groups.

That case involves an evangelical Christian church, Lamb's Chapel, that has been denied the use of rooms at the Center Moriches High School in New York state for worship services and for a film series on the religious aspects of family life.

Although Lamb's Chapel stressed the religious freedom aspect, the justices seemed primarily interested in how much discretion the Constitution gives to school officials to decide which outsiders to let in, and how they justify their choices.

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