Religion and education: 'Be careful'

March 05, 1993

The Supreme Court heard arguments last month on the perennial question of how far states can go in assisting religions in the field of education. At issue is whether a school district in Arizona should pay for a sign language interpreter for a deaf student at a Catholic school and whether an evangelical Christian church could use the facilities of a New York high school.

The justices may use the two cases to abandon a 22-year-old formula or test that has determined what is a proper or improper state relationship with religion.

The test was enunciated by Chief Justice Warren Burger in a 1971 case. Summing up previous First Amendment rulings, Chief Justice Burger wrote for the court that three tests must be met before a state act in this field was constitutional: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion."

Over the years, officials and citizens have often disagreed over whether some specific policy met the test. This is no doubt what prompted Chief Justice William Rehnquist to say during last month's oral arguments in the Arizona case that since the old test required making fine distinctions, "Maybe we should straighten it out." Meaning, apparently, to draft a new test.

That would be a mistake. The 1971 test has served better than any previous one in giving public officials and church leaders guidance as to what is and is not permissible. It has headed off a lot of bad laws and policies. We cannot imagine a test that could have done a better job in the past or would do so in the future. No test is perfect. People, including judges, can disagree over the meaning of "purpose," "advance," "inhibit" or "excessive" in specific instances, but we cannot believe many Americans would disagree with the general import of the test.

In such an emotionally charged legal mine field as church-state relationships, a test that has endured 22 years ought not to be abandoned just because it doesn't automatically solve every dispute at the state and local level. That is not a very conservative approach to the role of the court's rulings and precedents. Chief Justice Rehnquist should not have to be reminded of that. We are glad that Justice Byron White, who voted with Warren Burger on this test in 1971, said to the present chief justice last month after he uttered his "straighten it out" remark: "Be careful."

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