Holding Court with Joan Biskupic
Thursday, July 29, 1999

The Constitution guarantees free exercise of religion and the separation of church and state. But just how that guarantee plays out in American life has been a constant source of debate. Prayer in public schools, as well as taxpayer-financed vouchers for religious schools, remain hot political topics. Freedom of religion – this week's topic on "Holding Court."

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992, and she is co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court. She covered legal affairs for CQ's Weekly Report before joining The Post.  Below are questions Biskupic answered on the Supreme Court and legal affairs during an online question & answer session on Thursday, July 29, 1999.

Washington, D.C.: Can you talk a little bit about The Religious Liberty Protection Act? I'm not familiar with the specifics of it, but it frankly just sounds like a church-state infringement.

Joan Biskupic: This is Congress's second time around with a bill like this. It all began in 1990 when the Supreme Court said the constitutional guarantee of free exercise of religion was not violated when a city or state enforced a neutral law that HAPPENED to infringe on a religious practice. The case involved two Native Americans in Oregon who got in trouble for using peyote, a drug that was against state law but but used in their religious ceremonies. After the court ruled that such generally applied laws were permissible, Congress passed a law saying that such laws could be enforced only if the government had some "compelling" interest for them and used the least restrictive means. (Aside from zoning problems, the law was aimed, for example, at making sure that there could be exemptions for yarmulkes in schools and that certain believers who objected to autopsies could fight the procedure.) ... But the Supreme Court struck down the law, saying Congress overstepped the constitutional authority lawmakers tied the statute to. This time around, Congress has tried to link the law to a separate kind of legislative power, embodied in its power to regulate interstate commerce.

Rosslyn, Va.: What legal problems arise when a public school designates five minutes of silence per school day for students to pray. Pray however and to whomever they may want, be it to God, Allah, Budda, their tennis shoes, whatever.

Joan Biskupic: Hmmm, don't know that tennis shoes would be a problem. But, seriously, all the other subjects could be. Since the 1960s, the court has forbidden organized school prayer. And the one time it directly looked at moment-of-silence laws, in 1985, it struck down an Alabama law, saying it was simply an attempt to return forbidden prayer to public schools.

Miami, Fla. : How does the court determine whether a law violates the separation of church and state? I remember one case about a Florida law aimed at the Santeria religion, and the court saying the law was written too narrowly to be applied across the board. I imagine there have been rulings about a law being written too broadly.

Joan Biskupic: The justices have a general test for determining whether some government policy is an establishment of religion. Government can defend its law only by showing that both the purpose and effect of the action are secular and not intended to aid religion, that any involvement with religion is not excessive or require any real surveillance of the religious institutions affected. But this test has not been so consistently applied. Many of the justices themselves have criticized how erratically it's been used and suggested it's simply become a way to stop legitimate government aid to religion. Justice Scalia once said the test, deriving from a 1971 case, is "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave ... after being repeatedly killed and buried."

Richmond, Va.: Do you think issues like freedom of religion -- prayer in schools, the Ten Commandments, etc. -- are unfairly politicized? It always seems to be a tug-of-war in election years and after events like the school shootings in Columbine.

Joan Biskupic: Certain subjects are so emotional, like prayer, like abortion, that they lend themselves to politics and become overblown during campaign season. Simply because politicians know that those things are important to people, people who vote. But they are also subjects that involve some government involvement, for example, to make sure
that people can freely exercise their faith, so they naturally and legitimately are the
stuff of politics, too.

Silver Spring, Md.: Is there any appeal under way for the Religious Freedom Restoration Act, or is the Religious Liberty Protection Act a way of rewriting it.

washingtonpost.com: The court struck down the Religious Freedom Restoration Act in 1997, declaring that Congress had overstepped its boundaries with the law. (Further details, including Post coverage and text of the case, is available on the Supreme Court Report.)

Chapel Hill, N.C.: How does the court -- and law, for that matter, define a "religious group," either for purposes of church-state separation or tax status? Are there specific requirements for a group to claim religious or church status?

Joan Biskupic: The court has adopted a fairly expansive view of religion, protecting many unorthodox believers. Generally, it has looked for any sincere, meaningful beliefs, covering those faiths that focus on God and those that don't, too. And the IRS and states have specific requirements for tax exempt status-- I'm not sure how far they go--so that sham groups can't avoid paying taxes.

Washington, D.C. : Isn't there sort of a glaring inconsistency in our government on the matter of church and state? I mean, there's a national Christmas tree and a menorah on the ellipse every holiday season, and every session of Congress and State of the Union address opens with a prayer? Have the courts addressed this?

Joan Biskupic: Questions about inconsistencies come up alot, especially on school prayer debate. But the courts have generally allowed more government involvement with religion when children aren't involved. They think that kids are more vulnerable to the symbols of organized religion and can feel coerced into participating.... When the court in 1983 allowed prayer at
the opening of a state legislature's daily session, it said something about that atmosphere, where adults are free to enter and leave, not being comparable to the atmosphere at school events that students must attend.

New York, N.Y.: With all this talk about the lessening power of the Christian Coalition and the move of the Republican presidential candidates to the center, does it appear the justices will make any moves toward restoring prayer in the schools?

Joan Biskupic: No. I think a narrow majority would be open to a generally lower wall of separation between church and state (to allow increased but limited religious activities in public schools and also more government involvement with parochial schools). But I don't think the day is near that we'd see actual organized, faculty-sponsored prayer in schools, as there was before the 1960s.

Washington, D.C.: What about the bill that was recently passed in Congress allowing the Ten Commandments to be posted in public schools?

Joan Biskupic: It hasn't cleared Congress. It's still pending, and there are many roadblocks ahead. ... Not only does it face political problems in Congress, but the Supreme Court in 1980 ruled that a Kentucky statute requiring the posting of a copy of the Ten Commandments in public schools violated the establishment clause of the First Amendment.....

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Taken from Washington Post website: http://discuss.washingtonpost.com/zforum/99/courts072999.htm