Before the Supreme Court struck its tent and stole out of town, it dismantled many established religions, which keep cropping up like crabgrass around this country.
The court said Alabama had established religion by establishing a moment of silence in schools, a moment for meditation "or voluntary prayer." The court pounced on this, then turned to New England, long a hotbed of theocratic tendencies. The court said Connecticut had violated the First Amendment's prohibition of "establishment of religion" by a law requiring employers to give workers a right to take their sabbath day off.
The court said the law was too absolute in creating a duty "to act in the name of any religion." The opinion was just seven pages long, but long enough for reiterating the three-prong test: a law touching religion violates the establishment clause unless it has a secular purpose, and its primary effect neither advances nor inhibits religion, and it does not foster excessive entanglement of government with religion.
A law imposing a more conditional obligation to accommodate workers' religious duties might pass constitutional muster. So, when not complaining about their caseload, the justices can decide all the cases their Connecticut ruling will generate.
Regarding Alabama's law, the court implied that the 24 similar laws in other states might be sufficiently dissimilar to be constitutional. Perhaps they are constitutional if they do not mention prayer or do not have a legislative history that reveals the legislators' hopes that children would use the moment of silence for prayer. A dozen more cases should enable the court to fine-tune this issue to extinction.
In Connecticut, as in Alabama, Justice Sandra O'Connor detected an impermissible sate "endorsement" of religion. She wisely did not try to say what makes her think the authors of the establishment clause intended to ban such endorsements. Regarding Connecticut, Justice William Rehnquist was the lone dissenter. Herewith the full text of his dissent:
"Justice Rehnquist dissents."
He had shot his bolt in his 22-page dissent in the Alabama case. He served up a historical essay proving that the authors of the establishment clause intended to prevent partiality toward any particular sect, not to require neutrality between religion and irreligion. But the court believes it should avoid excessive entanglement with facts that might inhibit its activities as a mini-legislature. So it plunged ahead to dis-establish religion in Grand Rapids and New York City.
Grand Rapids was, I guess, well on the way to resembling Vatican City, or even Calvin's Geneva, with the clergy booted and spurred and in the saddle. Public- school teachers were giving remedial instruction to needy children in religiously affiliated private schools.
In New York City, too, the yoke of clericalism has been struck from the necks of needy children. For 19 years, the city has been spending some federal funds earmarked for needy children to send teachers into parochial schools to enrich the teaching of secular subjects. The court has freed the children from this assistance.
The Grand Rapids program advanced needy children by teaching them math, Spanish and gymnastics. But the court says it also advanced religion by establishing a "symbolic union" between government and religion. In recent cases, this court has found no such impermissible symbolism or union in a municipal cr.eche on public land, or public funding of legislative chaplains. You figure it out.
The court said New York's program would advance religion and entangle it excessively with government. Rehnquist, dissenting, detected a "Catch-22." The court has said public funds can be used for limited purposes, in certain circumstances, in parochial schools. But the use must be carefully supervised to avoid excessive entanglement. And sufficient supervision is excessively entangling.
The court says New York's publicly paid teachers should meet the needy children from parochial schools on a "neutral site." (Another dozen cases can fine-tune the "neutrality" criterion.) Evidently the court is afraid religion will be advanced by secular teachers teaching secular subjects in a -- what? -- unsecular building. You figure it out.
Ten months ago, the presidential campaign was awash with solemn nonsense about political currents that supposedly threaten to wash away the "wall of separation" between church and state. But in four end- of-session cases, the court has demonstrated, redundantly, that regarding relations between government and religion, it has the final, if unfailingly foolish, say.
The "wall of separation" metaphor comes not from the Constitution but from one of Jefferson's letters. The justices would rather construe Jefferson's correspondence than the Constitution. But perhaps we should be thankful that they still feel some slight obligation to relate their whims to something in America's past.