Churches and Governments

June 26, 1993

The First Amendment says government may not help "establish" a religion or "prohibit the free exercise thereof." The Supreme Court was true to the second half of that formulation but false to the first half earlier this month. It wrongly approved of state assistance to a large and popular religion. And it rightly protected a small and unpopular religion against a discriminatory law.

A deaf student in Arizona transferred to a Catholic school. His parents asked the state for a sign-language interpreter, just as in the public school. The request was refused because the U.S. Constitution has consistently been interpreted to mean public employee participation in "religious indoctrination" is equivalent to establishment. (The interpreter would convey doctrinal material to the deaf student.) Subsequently, the state alleged Arizona's constitution forbids such assistance and state and federal statutes do not require it.

The student's parents sued, lost and appealed. The Supreme Court usually refuses to address constitutional questions if the case can be resolved on other grounds. Four justices said judicial restraint required that here. But five wrongly chose to rule the Constitution allows such aid to a religious school. Even if, as is likely, the family now loses at retrial on other grounds, the constitutional wall between church and state has been breached, at least until some future case gives the court the opportunity to close that breach.

The Supreme Court does change course in this field. We hope the court hinted at a desirable future change in the other recent ruling on church and state. The justices ruled 9-0 that Hialeah, Fla., may not forbid the small Santeria Church to practice its ancient ritual of animal sacrifice. It reasoned that the church was being singled out and prevented from doing that which hunters and slaughterhouses were allowed to do -- kill animals.

The majority opinion said this was consistent with a ruling of three years ago in which an Oregon law of general application -- outlawing peyote -- was upheld, even though it prevented members of an American Indian religion from performing one of their rituals. But three justices, including one not on the court when the peyote decision was made, made a convincing case this month for reconsidering the argument that even a generally applicable law that suppressed religious belief can be unconstitutional. The Indian rituals deserve the same respect given the Santerias' -- and for the same reason. Honest, harmless rituals -- especially those of small non-mainstream religions -- need First Amendment protection.

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