he U.S. Supreme Court today issued three critical rulings dealing with government assistance to religious schools, a controversial abortion procedure, and the policies of the Boy Scouts of America which discriminate against homosexuals.

   In the 6-3 ruling in MITCHELL v. HELMS, the court plurality affirmed programs that provide aid to public and private, sectarian schools under the 1965 Elementary and Secondary Education Act. The decision is likely to spur calls for broader forms of taxpayer funded assistance to religious schools through voucher programs and other schemes.

   Another case decided by the court today involved whether the Boy Scouts of America may use sexuality as a litmus test for selecting leaders. In a 5-4 decision, the justices opined that the BSA enjoyed the rights of an "expressive association," and could discriminate against homosexuals when choosing scoutmasters. Chief Justice William H. Rhenquist, writing for the majority, said that requiring the group to accept gays as leaders "would significantly burden the organization's right to oppose or disfavor homosexual conduct." Although the decision in BOY SCOUTS OF AMERICA v. DALE applies only to gay leaders and does not directly confront the question of whether the Scouts may ban gays from general membership, atheists and others have been watching the case since the BSA also requires a belief in god as a criteria for joining.

   Finally, in what promises to remain a contentious issue, the court struck down a Nebraska state law banning so-called "partial birth" abortions. The majority opined that the statute violated women's constitutional rights by imposing an "undue burden" on women making decisions to terminate their pregnancies. It is not clear how this ruling (STENBERG v. CARHART) will affect similar laws in 28 other states, but it is likely that supporters of the ban will have greater legal difficulties defending the statutes.

   In MITCHELL v. HELMS, the court divided over whether the ESEA program aiding both public and religious school amounted to a violation of state-church separation and government support of religion. The majority split into two camps, which according to court observers may limit the precedential force of the ruling.

   Justice Clarence Thomas authored the lead opinion, and was joined by Chief Justice William Rhenquist and Justices Antonin Scalia and Anthony Kennedy. Justices Sandra O'Connor and Stephen Breyer agreed that the Louisiana-based program passed constitutional muster, but warned that the reasoning of the court plurality was overly broad. In the dissent were Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.

   The ruling simply affirmed and widened earlier Supreme Court findings which gradually have permitted a wider role for government funding and other forms of assistance to sectarian institutions. It also expressed as the majority opinion of the court -- "that direct, nonincidental aid to religious schools is always impermissible -- is inconsistent with this Court's more recent cases..." The plurality reaffirmed its notion that government aid to religious schools did not always violate the establishment clause of the First Amendment, or have the effect of necessarily "supporting a religion." Even the Writ of Certiorari, the decree from the court that it would hear the case, suggested that the court would go to considerable lengths in weakening establishment clause controls, such as the guidelines laid down in LEMON v. KURTZMAN.

   The "Lemon" or "three-prong" test has been instrumental in helping courts decide whether or not a government practice violates the separation of church and state. It has also been a major stumbling block for religious conservatives and other advocating public funding -- direct or indirect -- for religious groups and institutions. It states that for a law or practice to pass constitutional muster...

"The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another ... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion... In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and state.' "

-- Everson v. Board of Education (1947)

   "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.' "

   Thomas pointed out that the Louisiana and federal program offered assistance to both public and private schools, but that the "services, materials and equipment" provided must be "secular, neutral and nonideological." He and the majority cited earlier court decisions, such as AGOSTINI v. FELTON (1997) which examined the question of federal funding of public school employees to staff special education programs in parochial (Roman Catholic) schools. That decision, which affirmed the constitutionality of the government aid, was a reversal for the court against earlier rulings like GRAND RAPIDS v. BALL and AGUILAR v. FELTON. The 5-4 court majority in AGOSTINI opined that it was altering its "understanding of the criteria used to assess whether aid to religion has an impermissible effect."

   Another case used to underpin today's decision was ZOBREST v. CATALINA FOOTHILLS SCHOOL DISTRICT. Here, too, government aid in the form of a public subsidy to provide a sign-language interpreter to a deaf student at a Roman Catholic high school was upheld.

   The dissent by Justices Souter, Stevens and Ginsburg accused the court plurality of espousing "a new conception of neutrality (in respect to religion) as a practically sufficient test of constitutionality that would, if adopted by the Court, eliminate enquiry into a law's effect." Thus, the opinion today in MITCHELL v. HELMS stressed more the purpose of the aid -- presumably neutral and secular -- rather than the practical effect, which critics would argue is a benefit to sectarian religion.

   "The plurality position breaks fundamentally with Establishment Clause principal, and with the methodology painstakingly worked out in support of it," declared Justice Souter.

   The dissent also cited opinions by Thomas Jefferson and James Madison respecting the establishment of religion, including the later's "Memorial and Remonstrance" cited in the EVERSON v. BOARD OF EDUCATION OF EWING (1947) case. Any tax to establish religion is antithetical to the command that "the minds of men always be wholly free." Citing further from EVERSON...

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to process a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and state.' "

   Unfortunately, today's ruling steers away from the spirit of both Jefferson and the EVERSON decision. Supporters of school vouchers and even public subsidies for faith-based social programs are likely to find help thanks to this controversial ruling.

   While the court's verdict today in BOY SCOUTS OF AMERICA v. DALE was not considered a strict state-church separation case, separationists and atheists have watched this legal imbroglio with keen interest. For nearly two decades, the BSA has successfully fought a series of legal battles to exclude gays, Atheists and others who might violate its peculiar notion of a "straight" lifestyle. "Homosexual conduct is inconsistent with the requirement in the scout oath that a scout be morally straight and in the scout law that a scout be clean in word and deed..."

   This case involved a New Jersey-based BSA council which revoked the position of an assistant scoutmaster, James Dale, after it was learned that he was gay. Other suits have challenged the BSA's antigay policies, and atheists have also gone to court over the group's requirement that scouts swear an oath to a deity. In Oregon, Nancy Powell -- accepting the right of the BSA to discriminate -- has challenged the policy of local schools which give the scouts recruiting access in public school classrooms and other perks.

   Once again, the court divided sharply, 5-4 in declaring that compelling the BSA to accept homosexuals as troop leaders would violate the organization's right of free expression and "expressive association" guaranteed under the First Amendment. Chief Justice Rhenquist led the majority, joined by Justices O'Connor, Scalia, Kennedy and Thomas. In the dissent were Justices Stevens, Souter, Breyer and Ginsburg.

   The ruling reverses a New Jersey Supreme Court finding that the ouster of Mr. Dale violated state statutes banning discrimination in public accommodation. By this criteria, the BSA was not a strictly private association, but rather an entity closer to a business or open-ended group which might fall within the purview of civil rights statutes. Today's majority, though, affirmed the right of the BSA to establish discriminatory policies. It also emphasized that Dale was "open and honest" about his sexual proclivities (being copresident of a gay and lesbian group in college) and that his presence in the Boy Scouts "would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

   One person closely watching the BOY SCOUTS OF AMERICA v. DALE case is Oregon atheist Nancy Powell, who for several years has opposed BSA recruiting in the local Portland public schools.

   Reacting to today's high court decision, Powell told AANEWS, "I think the Boy Scouts have the right to be as narrow minded and bigoted as they choose to be, and it's already gone to the Supreme Court, and the group has spent hundreds of thousands of dollars to preserve that bigotry."

   "This decision, though, means that there must now be absolutely no government sponsorship of scouting. The BSA has drawn a line in the sand, and every parent now has to protect their children from this kind of bigotry."

   Powell called for a complete severing of ties between government at all levels and the scouting organizations.

   "The scouts can't be both a private organization that picks membership based on religion or sexual orientation, and still expect taxpayers to help them recruit their members, or carry out their activities," Powell said. "That means that we can't be giving the BSA special access to public schools in order to recruit, or have tax-free perks like sponsorship of various Explorer Posts by public police and fire departments."

   Powell also called for an end to material aid for the scouts, and cited a program which provides free guns and ammo from the military.

   "When an Explorer Scout joins the military," Powell said, "he gets a special extra rank and payment of up to $100 more per month." She added that the National Jamboree site is located at a U.S. Army base and is rented to the BSA for $1 per year.

   "They get to march in parades, and they get desirable financial and social benefits from cities, county governments, states and schools.

   "The entanglement is beyond belief, and we now have to put a stop to it," declared Powell.

   Her case challenging the access provided by Portland schools to the BSA is now in the Oregon Court of Appeals.

   The DALE case attracted considerable political and legal interest from a broad range of groups. Amicus ("friend of the court") briefs to defend the scout's discriminatory policies were filed by the U.S. Catholic Conference, Christian Legal Society, and a gay libertarian group (Gays and Lesbians for Individual Liberty) with the cooperation of the Institute for Justice. This latter organization declared, "The Boy Scouts should voluntarily end their policy of excluding gays from serving as scoutmasters. But the First Amendment nonetheless protects the freedom of the scouts to maintain this misguided policy if they so desire. Gay people should not sacrifice freedom of expression as an expedient to move closer to full acceptance and equality. Loss of constitutional rights subjects all Americans, including gay people, to pure majoritarian rule."

   Finally, the court handed down its decision in STENBERG v. CARHART. While the U.S. Supreme Court upheld abortion rights in the 1973 ROE v. WADE case, individual states have been attempting to circumvent abortion access through a series of restrictive statutes -- everything from requiring parental consent for minors to bans on so-called "partial birth" procedures. It should be noted that "partial birth" is not a medical term, and physicians instead refer to a procedure known as D&X or dilation and extraction. This involves partially extracting a fetus through the birth canal, cutting the skull and draining its contents. A similar method is D&E or dilation and evacuation, where an arm or leg of the fetus is billed into the birth canal during the abortion.

   Once again dividing 5-4, the high court justices ruled that the Nebraska statute violated a woman's constitutional rights by placing "undue burden" on whether or not to terminate a pregnancy. Writing for the majority, Justice Stephen G. Breyer observed that, "All those who perform abortion procedures" using the method outlawed by the Nebraska statute "must fear prosecution, conviction and imprisonment..."

   The Nebraska law did not permit the "partial birth" procedure even if doctors thought it necessary to protect the health of the mother.

   Justices Rhenquist, Scalia and Thomas dissented -- highlighting the court's reconstructionist conservative faction -- and were joined by Justice Anthony M. Kennedy. Kennedy was one of the authors of a 1992 decision which had affirmed the constitutional right to abortion.

   The written decision in STENBERG v. CARHART was surprisingly brief compared to other court renderings.

   Taken as a whole, today's decisions provide a mixed assortment of issues and findings. The MITCHELL v. HELMS ruling will likely fuel the voucher wars, and encourage both Republicans and Democrats in their quest to further aid sectarian schools and involve faith-based groups in the administration of social welfare programs. For atheists and separationists, the decision in MITCHELL could signal the need for further legal challenges, greater public education about the consequences of public funding to religion, and more research into how such funding advances sectarianism.

   The Boy Scouts of America case may be a draw. While some looked forward to having the BSA declared a "public accommodation," thus rendering the organization subject to anti-discrimination laws, the court's finding still leaves us with the strategy of demanding that state and scouting be separated. Nancy Powell's call for an effort to have governments at all levels sever any official and financial ties with the Boy Scouts of America could be the effective strategy in changing the discriminatory BSA policies.

   Abortion remains a culture war flash point. The 5-4 decision simply ups the ante in election 2000, and will likely energize religious conservatives like Jerry Falwell and Pat Robertson who are telling their followers that the next President of the United States could well appoint two, three or possibly even four justices to the U.S. Supreme Court. Who controls the White House in 2001 could well determine the political and ideological complexion of the high court for years to come. The STENBERG v. CARHART ruling may also encourage abortion clinic violence, as extreme anti-choice militants see little or no hope in ending the practice short of gun and bomb.

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