A Week in June.

The last week in June 2000 might have een a quiet one in Lake Wobegon, but it was anything but that in Washington, D.C. In the final week of its current term, the U.S. Supreme Court handed down decisions on nearly all of the major church-state issues. The news, of course, was both good and bad. And it's important to recapitulate and see what these developments mean for the future, especially with the presidential election imminent.

By a vote of six to three, the High Court agreed with a lower federal court in Santa Fe Independent School District v. Doe that school-sponsored, student-led prayers at public school football games violate the First Amendment. The Court even held that letting students vote on whether or not to have a prayer and who should deliver it is unconstitutional, as religion under the Constitution cannot be subject to majority rule.

Justices Rehnquist, Scalia, and Thomas dissented, claiming they smelled hostility toward religion in the ruling where, in fact, none existed (the complainants, after all, were themselves Christians). This Court decision may also have the effect of knocking out prayers before football games at the Air Force Academy at Colorado Springs; as it is, the academy doesn't have prayers at basketball or baseball games.

In another positive action, the Supreme Court declined to review a lower court ruling that struck down a Louisiana law mandating the insertion of a disclaimer about evolution into public school science textbooks.

It was also good news when the Court ruled five to four in Stenberg v. Carhart that Nebraska's law prohibiting so-called partial-birth abortion is unconstitutional because it doesn't contain a health exception for dilation and evacuation (D&E) or dilation and extraction (D&X) procedures sometimes used in terminating pregnancies after sixteen weeks or so. President Clinton has vetoed congressional attempts to outlaw late-term abortions for the same reason. (John Swomley explored this issue in the March/April 1998 Humanist and in his Humanist Press book Compulsory Pregnancy.) The scary part of this Court decision, however, is the closeness of the vote, indicating that Roe v. Wade hangs by a single Supreme Court vote.

Critics of the ruling were incensed that the Court would overturn the judgment of over half of the state legislatures. They seemed to feel lawmakers should have the power to make medical decisions and to interfere with the right of every woman to decide for herself if and when to become a mother. And curiously, media commentary on the ruling overlooked the fact that, in the only voter tests of such laws, voters in Colorado, Washington State, and Maine in 1998 and 1999 rejected state laws virtually indistinguishable from the Nebraska law ruled unconstitutional in Stenberg.

After striking down the Nebraska law, the Court upheld six to three a Colorado law creating an eight-foot-radius, moving "bubble zone" around patients and physicians within 100 feet of medical facilities providing abortion services.

On the negative side, the Supreme Court ruled five to four to overturn a New Jersey Supreme Court ruling that had found the Boy Scouts of America in violation of a state anti-discrimination law for excluding a gay Scout leader. The Court majority held that the BSA's right to freedom of "expressive association" trumps the fact that the BSA receives so much assistance from government and public schools that it can hardly be regarded as a purely private organization. This ruling would seem to militate against a challenge to the BSA's using a religious test to exclude some boys, despite the fact that the Scouts recruit youths in public schools and claim to be open to all. (For more about this issue and ruling, see Margaret Downey's "Taking Action Against Boy Scout Discrimination," page twenty-two of this issue.)

And finally, the Court handed down its worst decision so far on June 28 in Mitchell v. Helms--a challenge to the use of tax funds to provide educational equipment to pervasively sectarian nonpublic schools. The plurality in the four-two-three ruling (Thomas, Rehnquist, Scalia, and Kennedy) came down squarely in favor of scrapping the Supreme Court's sound 1975 Meek v. Pittenger and 1977 Wolman v. Walter rulings against tax aid for sectarian schools. The rather snotty plurality opinion, written by Thomas, flatly asserts that the "pervasively sectarian" nature of most nonpublic schools is irrelevant. These four justices (a Lutheran and three Catholics who, unlike the late great Justice William J. Brennan, are out of sync with most American Catholics) now stand poised to approve school vouchers, which would wreck the First Amendment, destroy public education, tax all citizens to pay for sectarian indoctrination, and fragment society along religious, ethnic, class, and other lines.

Justices O'Connor and Breyer went along with the plurality in upholding the equipment loans but balked at going further with Thomas and Company. The dissent, written by Justice Souter, with the concurrence of Justices Stevens and Ginsburg, eloquently defended the Court's church-state precedents and church-state separation while showing the serious errors of the Thomas plurality opinion.

What all of the above means is this: church-state separation, religious liberty, and reproductive freedom are hanging by a thin, frayed thread. Whoever is elected president in November will have the opportunity to appoint two or more Supreme Court justices--and that new court will determine the meaning of the Bill of Rights for generations to come. Unfortunately, the general public has yet to grasp how crucial this election is.

Vice-President Al Gore has stated that the late Thurgood Marshall, a strong supporter of church-state separation and civil liberties, was the justice he admired most. Texas Governor George W. Bush has made it clear that his favorite justices are Clarence Thomas and Antonin Scalia--probably the worst pair ever to have served on the Court in modern times. Anyone who thinks that Gore and Bush are Tweedledum and Tweedledee is not living in the real world.

Edd Doerr is president of the American Humanist Association and executive director of Americans for Religious Liberty.