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January / February 1992
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Cover Stories
Texas Home Schoolers Welcome Victory At Last!

Home Schoolers Win EEE Case

Is the Supreme Court on the Verge of Reversing its Harsh “Separation of Church and State” Rulings?

Massachusetts Court Case Could Set Precedent on Home Visits

Madalyn Murray O'Hair Blasts Religious Freedom Restoration Act

Sports Participation Granted with Public Schools

“Beautiful Parents” Award Goes to Home Schoolers

Encouraging Words

There's No Place Like Home!

Meet Linda Meloy


President’s Corner

Across the States

National Center Reports

Is the Supreme Court on the Verge of Reversing its Harsh "Separation of Church and State" Rulings?

by Jordan Lorence

The Supreme Court may be on the verge of dramatically rewriting its Establishment Clause jurisprudence to make it much easier for states and local units of government to acknowledge God and the Bible in public life and governmental activities. The case now before the Supreme Court is Lee v. Weisman. Although the case does not specifically affect home schooling, it will probably have an important impact on American life. HSLDA offers this backgrounder on the case.

What are the facts of Lee v. Weisman?

On March 18, 1991, the U.S. Supreme Court accepted for review a case from Providence, Rhode Island called Lee v. Weisman (docket number 90-1014). At issue in the case is whether a public middle school in Providence violated the Establishment Clause (sometimes called, “separation of church and state”) by allowing a local rabbi to offer a prayer at the beginning and the end of a graduation ceremony. The rabbi prayed twice, asking for God’s blessing on the students.

The American Civil Liberties Union (ACLU) sued the school district. The federal district court in Rhode Island and the U.S. Court of Appeals for the First Circuit in Boston both ruled against the school, saying that the rabbi’s prayers at a public school violate the Establishment Clause. See 908 F.2d 1090 (1st Cir. 1990) and 728 F.Supp. 68 (D.R.I. 1990).

Why is this case important?

The school district is urging the Supreme Court to abandon the harsh legal test it has used for the past four decades to eliminate religion from public life. The school district is asking the high court to examine the historical context of the Establishment Clause to see that its drafters never intended to eliminate all references to religion, especially the Bible, from all governmental activities. This case will at least decide whether clergymen can pray at public secondary school graduation ceremonies.

But because the school district is also challenging the legal test the Supreme Court uses to analyze Establishment Clause cases, the case affects the constitutionality of nativity scenes on governmental property, silent prayer in public schools, financial aid to parochial schools and tuition tax credits, creationism being taught in public schools, and much more.

Incidentally, the Bush Administration filed a friend of the court brief with the Supreme Court urging the justices to take the case and to rule in favor of prayer at graduation ceremonies. The American Civil Liberties Union is greatly concerned that its efforts to remove religion from public life are about to come to an end.

What is the harsh legal test the Supreme Court has used?

In 1971 case of Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court ruled that courts must examine Establishment Clause cases by a three-part analysis. When someone challenges a government action as violating the Establishment Clause, the action will survive only if it has a secular purpose, its primary effect neither promotes nor disparages religion, and the government action does not excessively entangle church with state.

The Supreme Court has used the Lemon test (or earlier versions of it) to eliminate spoken prayer, Bible reading and creationism from public schools, to prohibit the posting of the Ten Commandments on public classroom walls, to ban silent prayer in schools, and to ban nativity scenes located on government property unless they are surrounded by secular objects (Santa Claus, reindeer, candy canes, etc.)

What legal test would the Supreme Court use in place of the Lemon test?

Both the school district and the Bush Administration are urging the Supreme Court to adopt a “coercion test.” A “coercion test” would mean government acknowledgement of religion is constitutional, as long as no one is forced to participate in religious activities against their will. Practically speaking, a “coercion test” would reverse many of the Supreme Court decisions from the past 40 years which ban religious expression by the government.

Has the Supreme Court ever admitted that the Framers of the Establishment Clause never intended to prohibit religious activity by the government?

Yes, in Marsh v. Chambers, 463 U.S. 783 (1982), the Supreme Court upheld the practice of the Nebraska Legislature to hire a chaplain to pray before the legislative sessions. Although the practice violates all three parts of the Lemon test, the Supreme Court admitted that the Framers of the Establishment Clause must have intended to permit prayer before a legislative body. The Supreme Court said that three days after Congress authorized the appointment of paid chaplains, it reached agreement on the final language of the First Amendment, which includes the Establishment Clause. How could the men who wrote the First Amendment have intended to ban a practice they had just approved for themselves?

In the Rhode Island case, the attorneys for the school district are pointing to the Marsh v. Chambers case as the proper way to interpret and apply the Establishment Clause. The Supreme Court should totally abandon the Lemon test, the school district argues.

Why do you think the Supreme Court will use this case to reverse the Lemon test?

First, the Providence school district asked the Supreme Court in its appeal documents to use this case as a vehicle to abandon the Lemon test in all of its applications, not just in the area of graduation prayers. The Supreme Court accepted the case for review on those expansive terms.

Second, the make-up of the Supreme Court has changed so dramatically in the last few years, it seems that a majority of the justices currently on the Court want to ease up on church-state restrictions. Right now, four justices clearly want to abandon the Lemon test (Rehnquist, Scalia, Kennedy and White), while three want to keep Lemon (Blackmun, Steven and O'Connor).

The two newest justices, David Souter and Clarence Thomas, have never voted in an Establishment Clause case. Their views on this subject are not clear. If either of those two justices agree with the four justices who already want to abandon the Lemon test, then a clear majority will be in place to use Lee v. Weisman to make major changes in the area of the Establishment Clause.

When did the Supreme Court hear oral arguments in Lee v. Weisman?

The Supreme Court heard oral arguments on November 6.

When will the Supreme Court rule in the case?

Ruling is expected some time during the spring of 1992. The Supreme Court will most likely hand down its decision sometime before the end of its term in June, 1992.

What can I do?

Pray! This case could reverse many bad court decisions and empower government once again to acknowledge God and the Bible. Spiritual warfare will be intense in this case. Intercede for the following:

  1. Pray that a clear majority of the Supreme Court justices would throw out the Lemon test and substitute for it a more permissive test that allows more governmental acknowledgement of religion.

  2. Pray that the Supreme Court does not make things worse with this case and eliminate even more religion from public life.

P.S. Please don't write the Supreme Court. It is not proper to “lobby” Supreme Court justices the way one lobbies legislators or congressmen. Lobby the “Ultimate Judge” in heaven, that He would turn the hearts of the earthly justices to rule rightly.