Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, June 14, 1990 TAG: 9006140470
SECTION: EDITORIAL PAGE: A-15 EDITION: METRO
SOURCE: PERRY MORGAN
DATELINE: LENGTH: Medium
"Yes," most Americans would say, as Congress has said, and as the Supreme Court last week agreed. The court's decision, however, scarcely merited the headlines given it. It doesn't say that a group of students has a right to meet at school to discuss religion but, rather, that those students may not be prevented from doing so if the school already sanctions clubs (or just one club) devoted to non-curriculum subjects.
John and Mary, in other words, can discuss Genesis if Harry and Sue already have been permitted to kick around the finer points of snorkeling. The congressional act affirmed by the court is an anti-discrimination measure.
Despite the crabbed nature of the decision, there were complaints from the "wall-of-separation" crowd. The Anti-Defamation League of B'nai B'rith said the ruling was "troubling because it sanctions the use of public-school facilities to advance religion in violation of the First Amendment."
Whether or not "facilities" can "advance" religion is a question of semantics that can be set aside. The allegation of a violation of the First Amendment is glib and misleading. For that amendment doesn't merely prohibit laws "respecting an establishment of religion"; it bars with equal force laws prohibiting the free exercise of religion.
Justice O'Connor, writing for the court, noted the duality of the First Amendment thusly: "There is a crucial difference between government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free-speech and free-exercise clauses protect."
This is a rare and overdue gesture toward balance. For almost three decades, the court has been fixated on forcing neutrality between religion and irreligion. Scant attention was paid to the Constitution's free-exercise command, as justices sought to erase a history of various religious practices once permitted in the schools.
There was not to be a hint or whisper of religion in the schools. Underlying this intolerance was a presumption that the framers really intended to construct within the Constitution a wall of separation between church and state.
If they had so intended, they could have said so. They didn't, an unsurprising fact since some of the first bills of rights (unlike Virginia's) imposed religious tests on public office. Not until 1961 did the court invalidate provisions in eight state constitutions requiring office-holders to swear a belief in God.
Thus the "wall of separation," such as it is, is a product of constitutional interpretation, not construction. Though necessary and binding, interpretation is best served without a hot sauce of absolutism. The reason stands out when one looks at the "wall" thrown up by the court. No symmetry is evident, no footing in history, no cement of consistent logic that could justify a 30 Years War that seemed to make prayer in school, or the thought of it, a judicial cuss word.
Behold the wall the court has wrought: A state may lend textbooks to students in parochial schools, but not maps or tapes or globes. The same students may have tax-paid transportation to and from schools, but not to a museum or a laboratory. Church property may have a tax exemption, but parents of parochial-school students may not have a tax credit.
So goes the wall, zig-zagging out of sight.
The point is not to mock it (judging is not a science), but to point out that the builders of such a wall could have made, long ago, the slight acknowledgment of religion's place in the lives of many students that it has just now made; and, by doing so, it could have stemmed an upsurge of reaction and intolerance in the political life of the nation.
Moreover, the court still has not got the matter right. It will have done so when it permits religious clubs to meet whether or not their school has clubs devoted to hobbies such as chess and scuba diving.
The fact that the latter have to make a way for the former doesn't square with the free-exercise clause of the First Amendment. Justice O'Connor, having opened a proper space in the "wall," perhaps will be asked in another case to broaden that space.
by CNB