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Behind the Headlines: Cases Before U.S. Supreme Court Could Provide Hint on Voucher Views

October 5, 1999
See Original Daily Bulletin From This Date

An important church-state case on the docket of the U.S. Supreme Court could serve as a bellwether for the justices’ stance on the controversial issue of taxpayer aid to religious schools.

The high court, which began its new term this week, is slated to hear arguments in a case concerning the constitutionality of a federal law that allows public school systems to lend library books, computers and other instructional items to religious schools.

The case could have ramifications for school voucher programs — the hot-button issue at the heart of the debate over taxpayer funding of parochial schools and long a source of division in the Jewish community.

Although the case does not directly address vouchers, legal analysts say it nonetheless could signal the positions of the justices on the issue.

The 1999-2000 term may also produce rulings that could significantly change the balance of power between the federal government and the states — an issue that carries broad implications for Congress’ legislative authority and by extension, for the lobbying activities of the Jewish community and other interest groups.

The justices are expected to add dozens of other cases to the docket over the next few months, possibly weighing in on various church-state disputes around the country.

In fact, on Monday, the first day of the court’s term, the justices decided to leave intact a ruling by the Arizona Supreme Court that allows Arizona residents to get a tax break for contributing to groups that offer scholarships to students at private religious schools.

Without comment or dissent, the court let stand the lower court’s ruling that the Arizona law does not violate the separation of church and state. The action could prompt other states to adopt similar measures.

Other cases pending in lower courts about prayer at high school graduation ceremonies and football games may also reach the high court this year, according to Steve Freeman, director of legal affairs for the Anti-Defamation League.

The justices are expected to eventually rule on school vouchers, but it remains unclear whether they will do so this term, particularly after turning away a key case last year involving Wisconsin’s voucher program.

For now, Jewish legal observers are focusing their attention on Mitchell vs. Helms, a case that will set the stage for the justices’ first major church- state ruling of the new millennium.

The case involves a 14-year-old Louisiana dispute over the question of whether computers and other instructional material paid for with taxpayer money can be used by religious schools.

A federal program requires public school districts to share instructional equipment in a “secular, neutral and nonideological” way with students enrolled in nearby private or parochial schools.

But a federal appeals court in New Orleans last year struck down the practice, saying that providing educational materials other than textbooks for religiously affiliated schools violates the separation of church and state.

The Clinton administration has defended the law, saying the program has safeguards intended to prevent the equipment and materials from being diverted for religious use.

Several Jewish organizations, along with other church-state watchdog groups, plan to join a friend-of-the-court brief urging the justices to uphold the appeals court ruling and strike down the program as unconstitutional.

The groups intend to argue that the government should not be granting educational materials to parochial schools for fear that the materials can be easily diverted for sectarian purposes.

Several Orthodox Jewish groups, however, have filed a separate brief, backing the administration’s view that the loaning of educational materials should be allowed and does not constitute a church-state violation.

The decision is expected to clarify what has become a nebulous area of law. The appeals court cited previous Supreme Court decisions that have banned any materials other than textbooks from being lent to parochial schools.

But a 1997 Supreme Court ruling holding that public school teachers can offer remedial help at parochial schools raises question about exactly where the line should be drawn on government aid to religious schools.

For that reason, church-state watchdogs say they will be monitoring the case closely.

“I think it will be an extremely important bellwether in terms of where the court’s thinking is on church-state separation issues,” said Jeffrey Sinensky, the American Jewish Committee’s legal director and general counsel.

A ruling in the case is expected early next year.

In the area of states’ rights, Jewish legal observers will be watching to see if the court, under Chief Justice William Rehnquist, continues the judicial trend of curtailing congressional power while expanding states’ rights.

A series of rulings in recent years have gone a long way toward redefining federal-state relations, increasingly handing over authority to state and local governments. That theme is expected to be tested again in a number of cases – – most notably a case involving the constitutionality of the 1994 Violence Against Women Act, which lets rape victims sue their attackers for violating their civil rights.

In that case, as well as another involving the right of workers to sue state employers who discriminate based on age, the court will decide the extent to which Congress has the authority to pass laws that affect mainly state and local concerns.

Any scaling back of federal authority over such matters carries important ramifications not only for Congress’ ability to legislate, but for interest groups that seek redress at the federal level for state and local problems, according to legal analysts.

That could directly impact the Jewish community, which has traditionally focused its energy and resources on Washington.

A further tipping of the balance toward states’ rights could force the community to reassess its political strategy, according to Marc Stern, co- director of the American Jewish Congress’ legal department.

“It certainly means that we have to pay more attention to state legislatures, and we have to be more prepared to shop things state to state,” Stern said.

Already, Jewish activists have been lobbying to pass individual state religious freedom statutes following a 1997 Supreme Court ruling that struck down the Religious Freedom Restoration Act as unconstitutional. The federal law was intended to make it harder for government to interfere with free religious practice, but the court ruled that it exceeded Congress’ authority and infringed on states’ rights.

“I think it’s going to be the overwhelmingly dominant theme of the term,” Stern said of the redefining of federalism. “It’s possible that we’ll be looking at a very substantially altered constitutional landscape between the state and the federal government come 10 months from now.”

As the court opened its term on Monday, Justice Ruth Bader Ginsburg was present on the bench, just 17 days after undergoing surgery for colon cancer.

The Jewish justice reportedly had a big smile on her face and actively questioned lawyers during their arguments, putting to rest questions about how a prolonged absence would affect the court.

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