New York (Dec. 10)
The Supreme Court decision Tuesday that a public university
which permits student groups to meet for secular activities must also allow student religious groups to meet for worship and religious study was lauded today by a Jewish legal service organization as appearing to establish “the general principle in law that religion is not to be viewed as pariah-like by government.”
That evaluation of the Supreme Court ruling striking down a University of Missouri ban on the use of university property “for purposes of religious worship or religious teaching” was made by Howard Zuckerman, president of the National Jewish Commission on Law and Public Affairs (COLPA), which submitted a friend of the court brief in support of the affected student group. Nathan Dershowitz, director of the Commission on Law and Social Action of the American Jewish Congress, submitted a brief in support of the university, written by Marc Stern, an AJCongress staff attorney.
The university regulation was challenged by an evangelical Christian student group called Cornerstone, one of more than 100 recognized student organizations at the university’s Kansas City campus. The rule banned Cornerstone from use of a room on campus for its weekly Saturday night meetings.
BASIS FOR COURT RULING
The Supreme Court based its ruling on the students’ constitutional rights of free speech and association, rather than on the their right to freely exercise their religion. Emphasizing that “the basis for our decision is narrow,” Associate Justice Lewis Powell, Jr., writing the majority opinion, said the ruling applied only to voluntary religious practices at state-supported universities, thus indicating no change in the long-established Supreme Court position that the Constitution bans officially sponsored prayer in the public schools.
The university had contended that facilitating student religious practice, in providing facilities for Cornerstone, would amount to a breach in the Constitutionally-mandated separation of church and state.
SIGNIFICANCE OF THE RULING
Zuckerman, in explaining the significance of the ruling for Jews, told the Jewish Telegraphic Agency that “unfortunately, many courts and public officials have in the past taken the position that the tradition of separation of church and state, embodied in the First Amendment, required that government could not make available to religious adherents those benefits freely available to secular groups, solely on the contention that it would thus be facilitating religious activity. In the absence of real entanglement between government and religion,” he said, “arbitrary exclusions on such grounds will hopefully no longer be sustained by the courts.”
Dershowitz, commenting on the ruling, told the JTA that “now that the Surpreme Court has ruled that such types of religious activities are permissible on campuses of public universities, it is imperative that the Jewish community formulate new programs and reinforce existing ones designed to strengthen the resistance of Jewish college students to the approaches to them of missionaries, whose efforts at conversion are sure to be strengthened by the ruling.”
Dershowitz added that while “we are naturally disappointed by the ruling one of our key concerns is that the ruling not be misinterpreted to imply that religious practices are generally permissible in all types of schools.”
He said, “we expect many individuals will start appearing before public school boards, citing the Supreme Court ruling as one supporting prayers in the public schools, despite the fact that, by its terms, the ruling does not extend to public schools, for which the Supreme Court has repeatedly ruled that any and all forms of prayer during school hours are unconstitutional.”
The COLPA brief was prepared by Nathan Lewin, a COLPA vice president, and joined in by Agudath Israel of America, the Rabbinical Council of America, the National Council of Young Israel, and the Union of Orthodox Jewish Congregations of America. Joining in the brief was Daniel Chazin, a COLPA volunteer attorney.
Lewin argued in the brief that the establishment clause of the First Amendment prevents government from “preferring religion over non-religion” and from “placing its power and prestige behind one religious faith in preference over another.”
The brief said upholding the university’s ban would amount to reducing the legal “status and entitlement” of religion “below that of any and all other forms of communication.” The brief also referred to prior Supreme Court decisions granting special protection to religious activity in such areas as protection of the religious rights of workers, adding that the university ban relegated religion to an “ignominiously low status.”
Justice Powell said “religious worship and discussion are forms of speech and assocation protected by the First Amendment.”