Reconsidering Church-State Barriers SUPREME COURT

April 04, 1993|By LYLE DENNISTON

WASHINGTON — Washington.-- In the corn-and-soybeans farming town of Rensselaer, Ind., about an hour's drive out of Chicago, and in the fast-developing bedroom community of Buffalo Grove, Ill., a half-hour's commute from the Loop, they're angry all over again about God and the schools.

Mention the free Gideon Bibles given out in the schools, and that can stir new wrath -- pro and con -- at the coffee shop on Rensselaer's Main Street, and may even produce another handful of letters to the editor of the daily Rensselaer Republican.

In Chicago's quiet northwest suburbs, talk for or against having pupils recite the Pledge of Allegiance, with its "One Nation under God" phrase, and that can quickly disturb the tranquility of the avenues knitting together the affluent neighborhoods of Buffalo Grove, Arlington Heights and Wheeling.

Riley School principal Edward F. Searing, who leads the Pledge "the way it's written" over the school's public address system every morning at 9, says that the Buffalo Grove parent who objects to the "under God" phrase "is a nice man, but he causes people to get angry when he raises the stakes on his beliefs."

Thirty-one years after the Supreme Court's first school prayer decision, in 1962, the sometimes-bitter legal jousting over religion in America's public life goes on. Lawsuits now reaching the Supreme Court from Rensselaer and Buffalo Grove illustrate why the controversy never seems to end:

* The public schools remain the main arena of controversy over church-and-state relations. Every year, or more often, someone somewhere finds religion and public education too close for comfort, and sues.

* No matter how many times the Supreme Court rules on the issue, the court still does not have to wait long for a new round of test cases to arrive. In the current term, the court is already working its way toward decisions in three pending cases, and two of those involve the public schools -- even before the justices take a look later this term at the new Rensselaer and Buffalo Grove lawsuits.

* Whatever the court may say in any of its religion decisions, few seem to have a clearer notion of what actually is allowed, what is forbidden.

Both the Rensselaer and Buffalo Grove cases went through the same federal court, the 7th U.S. Circuit Court of Appeals in Chicago; that court nullified the free distribution of Bibles to fifth graders in the Rensselaer Central Middle School, but in a separate ruling found nothing wrong with the recital of "one Nation under God" by grade-school pupils saying the Pledge at Riley School in Wheeling Township.

A three-judge panel of that Circuit Court said in the Rensselaer case that the decision against the free Bibles was dictated by the constitutional formula the Supreme Court has been using for 22 years to judge church-state ties. But, another three-judge panel of the same court (including one judge who also took part in the Rensselaer decision) said in the Pledge of Allegiance case that the Supreme Court appeared to have changed the constitutional rules just last June, in its latest school prayer ruling.

"Judicial politics: make no mistake, that's what it is," scoffed a lawyer involved in one of those cases, who insisted upon anonymity.

Division of that kind in a single appeals court almost guaranteed that the Rensselaer school board would be ready to take its chances in the Supreme Court; the board voted March 1 to appeal the dispute over Bibles. Similarly, Mr. Sherman and his son Rickie from Buffalo Grove did what was expected in filing an appeal in February, complaining about the reference to God in the Pledge.

Whether or not the constitutional uncertainty stems from judicial politics, it is apparent -- and has been for several years -- that the Supreme Court itself is fractured deeply over what rules to enforce when it deals with religion in the public life of the nation.

It has been using, with increasing discomfort, a 22-year-old formula that tends to leave very little room for government to accomodate religion, especially in the public schools. That formula nullifies any government action if its purpose was religious, if its practical effect was to aid religion, or if it led to too much "entanglement" of government with religion.

That formula comes from a 1971 ruling, striking down a government subsidy for parochial school teachers' salaries (the case of Lemon vs. Kurtzman). Since then, the court has decided 31 cases on public support for religion, and 30 of those used the 1971 formula.

But, with the arrival on the court five years ago of Justice Anthony M. Kennedy, it has seemed that a majority might soon form to cast aside the formula -- a result that would mean that religion could make something of a comeback in the schools and in other public institutions, and religious symbols could again appear on public buildings and grounds.

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