Court to rule on church-state case

WASHINGTON, Oct. 7 (JTA) — The U.S. Supreme Court is expected to hear a case this term that could have lasting ramifications on government funding of religious programs. The high court, which opened Tuesday — a day later than normal because of Yom Kippur — is expected to take up the case of state scholarships for religious education in December. A Washington state man is suing the state for denying him access to a college scholarship because he was planning to major in pastoral studies. The Washington legislature made students studying theology ineligible for the aid, saying the state constitution prohibited public money for religious instruction. While the case, Locke v. Davey, focuses on the funding of education, legal scholars say the case could turn separation of church and state cases on their heads because Davey’s argument presumes that access to state money for religious programs is a right, not a benefit. Jewish court-watchers believe the case could have implications for a wide variety for state funding initiatives, including faith-based initiatives and school vouchers. As in most church-state case these days, Jewish groups have lined up on both sides of the debate. Jewish groups are also watching several other cases on the Supreme Court docket this session, including a case that could decide whether a California woman can sue Austria in U.S. courts to recoup Nazi-looted art. Also under scrutiny are several cases that the court may yet decide to hear, including a ruling related to the Pledge of Allegiance and a case determining whether a state has the right to remove the Boy Scouts of America from a group of charities eligible for the annual state employees charity campaign, because the Boy Scouts discriminates against homosexuals. In the state scholarship case, Joshua Davey lost his lawsuit in trial court, but the U.S. Court of Appeals for the 9th Circuit reversed the lower court’s ruling, saying Davey’s right to the free exercise of religion was violated. Proponents of church-state separation say that in the worst-case scenario, the ruling could determine that states cannot choose for themselves the boundary between religion and government. Several Jewish groups, including the Anti-Defamation League and American Jewish Congress, are supporting Washington state in the suit, arguing that the law does not prevent free expression of religion and that Davey was not harmed because he was not forced to give up his pursuit of religious study. “Is it neutrality or is it hostility towards religion,” asked Michael Lieberman, ADL’s Washington counsel. “It’s not hostility, we argue, if you deny someone a benefit.” Orthodox groups, including the Orthodox Union and Agudath Israel, argue that students studying religion should not be denied access to state aid available to students studying other disciplines. “The state has decided to discriminate against students because they choose to spend part of their time studying religion,” said Nathan Diament, director of the O.U.’s Institute for Public Affairs. He noted that the scholarship did not cover full tuition and could have gone toward financing Davey’s other major, business management and administration. Like many Americans, Jewish groups are also closely watching whether the Supreme Court will review the phrase “one nation, under God” in the Pledge of Allegiance. In a case brought by a California man, the 9th U.S. Circuit Court of Appeals ruled last year that the phrase violated the separation of church and state, and therefore could not be supported in public schools. There has been a hold on that ruling ever since, awaiting a clarification from the high court. The decision caused a national debate, with many public leaders, including some Jewish officials, chastising the court. Congress moved quickly to condemn the ruling and express support for the phrase. When the appeals court reached its decision, the ADL called the decision “wrong” and said “it goes against the culture and traditions of this country, which was founded on principles respectful of faith.” Other Jewish groups are struggling with how to deal with the issue. While many are concerned about religious statements in public forums, especially public schools, there is a feeling that what is called “ceremonial deism” — like the pledge phrase, or the words “In God we trust” on currency — is harmless. People are also uncomfortable with the Jewish community being viewed as unpatriotic, said Marc Stern, a lawyer for the American Jewish Congress. But Stern and others said they were surprised the court has not yet announced it will hear the pledge case, and justices may be seeking a way to circumvent a ruling on the case’s key issue. One issue is that the father who brought the suit on behalf of his daughter may not have standing because he is not the custodial parent. In the Nazi-looted art case, Maria Altmann, an 87-year-old Californian who fled Austria, is seeking $150 million worth of paintings that were stolen 65 years ago. At issue is whether foreign governments now shielded from prosecution in the United States can still be sued for actions before the immunity was granted. Austria appealed the case, questioning California court rulings that Altmann can sue Austria and the Austrian Gallery in the United States. A 1952 law shields the country from prosecution, but it is unclear whether disputes that began before that date, like Altmann’s, also are shielded. Altmann is seeking six paintings by Gustav Klimt, two of which depict Altmann’s aunt. The case is likely to be heard early next year. In the Boy Scouts case, which may or may not be heard this year, the group was eliminated from the annual state employees charity campaign because it violates Connecticut’s non-discrimination policy — even though the Supreme Court earlier ruled the Boy Scout’s policy on gays is constitutional. Several Jewish groups have raised concerns about that policy on gays, and Jewish observers are monitoring developments to see how such a ruling would affect Jewish federations, which participate in these charity campaigns. Like the Boy Scouts, federations also discriminate in favor of a specific group — Jews — and they could be subject to the same restrictions. Another case that may be heard could decide whether states can be sued in federal court. Several disabled plaintiffs sued Tennessee, arguing the state violated the Americans with Disabilities Act by not providing elevators in some court houses. The state contends they are shielded from lawsuits relating to the act. It is another in a series of federalism cases that Jewish groups are concerned about in light of enforcement of civil-rights and anti-discrimination laws in the states. A ruling on campaign-finance laws could also be forthcoming this year. While it is unclear how the court will rule on the case, which had oral arguments last month, any decision is likely to affect Jewish participation in the political process. Many court watchers assumed a justice would retire at the end of last year’s session. That did not happen, and now observers say it is unlikely that any justices will retire this year, because that would leave a vacancy heading into the 2004 presidential election. Rumored to be considering retirement last year were Chief Justice William Rehnquist and Justice Sandra Day O’Connor.