A bad week in June.

The week of June 23, 1997, at the Supreme Court was not a good one for religious liberty and church-state separation. On Monday, the Court weakened a long line of church-state precedents in its five-to-four ruling in Agostini v. Felton. On Wednesday, the justices struck down the Religious Freedom Restoration Act in its six-to-three decision in City of Boerne, Texas v. Flores. Then, on Thursday, the Court's upheaval finally ended with a unanimous reversal of federal appellate court rulings in Vacco v. Quill and Washington v. Glucksberg that had recognized a constitutional right to physician-assisted suicide. Let's look at the details.

Parochiaid

To understand the Court's ruling in Agostini v. Felton, it is necessary to look back at 1985. In a pair of cases that year, Aguilar v. Felton and Grand Rapids v. Ball, the Supreme Court -- building on a long line of church-state precedents -- ruled five to four that placing public school teachers in sectarian private schools violates the First Amendment's establishment clause.

One outcome of these decisions was that public school employees were prohibited from providing federal Title I remedial education services to students at parochial schools. Because students in need are entitled to such services, regardless of whether they attend public or nonpublic schools, some parochial schools demanded that the services be provided in mobile units parked next to the parochial school grounds. This arrangement, however, inflated the program's costs. Eventually a group of parents and the New York City Board of Education filed suit, charging in Agostini v. Felton that Aguilar was no longer good law and that Title I services should be provided in parochial school buildings.

In its five-to-four decision on June 23, the Court declared that minor rulings since 1985 (Witters and Zobrest) had changed the Court's approach on parochial school aid, warranting a reexamination of the 1985 rulings. It then reversed Aguilar and reached out and struck down part of Grand Rapids v. Ball. In doing so, the Court rejected three assumptions it has previously relied upon to decide such cases:

* that permitting public employees to work within religious schools inevitably results in state-sponsored indoctrination of religion

* that permitting public employees to work within religious schools necessarily constitutes a symbolic union between church and state

* that any government aid that enhances the educational function of religious schools impermissibly violates the separation between church and state.

Writing a carefully reasoned and eloquent dissent, Justice David Souter explained how the majority had repudiated "the very reasonable line drawn in Aguilar and Ball" and authorized "direct state aid to religious institutions on an unparalleled scale, in violation of the Establishment Clause's central prohibition against religious subsidies by the government." The dissenters also argued that the majority erred by using a federal court procedure in a wholly unprecedented way in order to accept the appeal in Agostini.

Advocates of tax aid to sectarian private schools claim that Agostini is a green light for voucher programs, while defenders of church-state separation are divided as to the ruling's possible consequences. Lisa Thurow, executive director of the National Committee for Public Education and Religious Liberty (which defended Aguilar), takes a pessimistic view. "It is especially disconcerting," she said, "that the Court does not consider the government's provision of the core educational services of parochial schools as a subsidization of religion."

One hopeful sign is the June 27, 1997, superior court ruling in Chittenden Township School District v. Vermont Department of Education. Although its decision is being appealed, the Rutland, Vermont, court thoroughly examined the judicial precedents -- including the four-day-old Agostini decision -- and found that tuition payments to the admittedly sectarian Catholic high school violate both the state and federal constitutions on several grounds.

In whatever way Agostini is interpreted, we are in for a major struggle to maintain church-state separation and protect religiously neutral public education. American voters have repeatedly shown that they strongly oppose tax aid to sectarian denominational schools, and church-state separation groups have won an impressive string of court victories. Now we must redouble our efforts.

Religious Freedom Restoration Act

Two days after its parochiaid ruling, the Court struck down the Religious Freedom Restoration Act in City of Boerne, Texas v. Flores. The act had been passed almost unanimously by Congress in 1993 in response to the Supreme Court's 1990 ruling in Employment Division v. Smith, that government didn't need a compelling, but only a rational, reason to interfere with religious practice. (The Court decided Smith based in part on its 1940 Gobitis decision, which the Court itself reversed three years later in Barnette.) The purpose of the RFRA was to reestablish the rule that government may substantially burden the practice of religion only if it uses the least restrictive means available to achieve a compelling governmental interest. The present Court, however, decided in a six-to-three ruling that Congress had violated the constitutional doctrine of separation of powers by usurping a Court prerogative. In their dissents, Justices Sandra Day O'Connor, Stephen Breyer, and David Souter called for a review of the Smith ruling, holding that this was the decision that was out of order in the context of the history of religious liberty in the United States.

The Boerne case stemmed from a request by St. Peter Catholic Church in Boerne, Texas, for permission to expand the size of the overcrowded church. Boerne's landmark commission and city council denied the request because the church is within Boerne's historic district and therefore cannot make changes that would alter its outward appearance. St. Peter sued, invoking the RFRA and declaring that, as a church, it was exempt from the city's landmark rules.

While the majority of the Court, in striking down the RFRA, was technically correct, this ruling will nonetheless cause problems. Congress may try to resolve those problems with a revised RFRA, while state legislatures could pass similar local laws. The worst possible response would be for Congress to propose a constitutional amendment to place "governmental compelling interest" and "least restrictive means" tests in the U.S. Constitution.

Such an effort would likely be combined with Representative Ernest Istook's (Republican -- Oklahoma) Religious Freedom Amendment, designed to authorize majority rule devotions in public schools and to allow or require public funding for religious schools and other institutions. We have never amended the Bill of Rights, and doing so now -- even for ostensibly worthy motives -- would set a dangerous precedent that could lead to irreparable erosion of the First Amendment and the rest of the Bill of Rights.

Physician-Assisted Suicide

The day after Boerne, the Supreme Court unanimously reversed federal appellate rulings in Vacco v. Quill and Washington v. Glucksberg that struck down attempts by New York and Washington State to ban physician-assisted suicide (see Barbara Dority's article, "Physician Aid in Dying: Within Some of Our Lifetimes?" p. 34). The Court, however, left intact the right of individuals to refuse life-saving medical treatment and the physician's authority to administer medication that could cause death as a side effect of combatting severe pain.

The American Humanist Association, the Unitarian Universalist Association, and others had filed an amicus curiae brief defending the federal appellate court rulings on both free exercise and establishment clause grounds (see my article "Liberty and Death" in the March/April 1997 Humanist).

Facing the Future

As should be continuously obvious, questions of individual freedom of conscience, religious liberty, and church-state separation are neverending and ubiquitous. Time refuses to stand still and the price of liberty remains eternal vigilance. Ignoring these facts will not make them go away. Each of us must either be part of the problem or part of the solution.