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Supreme Court Church-State Developments

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By Rob Boston

Advocates of church-state separation knew Monday was going to be a big day at the Supreme Court. It was the high court’s final day in session for the 2009-10 term, and four cases were left. Among them was Christian Legal Society v. Martinez, a church-state case.

Our normal practice at AU is to pull up a Web site called SCOTUS blog, which provides live blogging and immediate links to opinions right from the court. But yesterday, so many people tried to get on SCOTUS blog that it couldn’t handle the traffic.

I was able to pull up the site, but no one else on staff could. So AU Executive Director Barry W. Lynn, Assistant Legal Director Richard B. Katskee and I huddled around my computer, waiting to see what would happen.

When we saw that our side had won the case, we couldn’t help but let out a little cheer. Richard returned to his office to analyze the ruling, and Barry and I started drafting a press release for the media.

In all the hubbub over the CLS case, it was easy to overlook the other actions the high court took yesterday that are also of interest.

The Supreme Court agrees to hear just a fraction of the cases that are appealed to it – less than 2 percent. The odds are always against a case being heard, and when the court declines, the lower court opinion stands.

Yesterday the court rejected two cases with church-state overtones. In the first, Holy See v. John Doe, an Oregon man is suing the Vatican, charging that he was sexually abused by a priest in the 1960s.

Church officials had sought to squelch the suit, claiming that the Vatican is a sovereign nation that can’t be sued in U.S. courts. They asked the justices to take up the case and dismiss the Holy See as a defendant. (The Obama administration sided with the church.)

But the high court was not swayed and declined to intervene.

The Supreme Court’s refusal to dismiss the case means that Doe’s claims can go forward. It does not mean that Doe has won his case against the church – only that he has the right to press his claim. I wrote about this issue recently for Church & State; it should be interesting to watch this legal battle unfold.

The second case dealt with a long-running battle over religion in a public school in Plano, Texas. The dispute goes back a 2003 winter holiday party, when a 9-year-old boy was told to stop distributing candy canes with religious messages. The boy’s parents also sought permission to distribute religious material in school but were denied. Backed by the Liberty Institute, a Texas-based Religious Right group, the family sued.

In  response to the lawsuit, the school district drafted a policy that allows for the distribution of non-school material at certain times and under certain conditions. A federal appeals court upheld the policy, but the Liberty Institute appealed to the Supreme Court. The high court’s refusal to hear the case brings the matter to a close. (Morgan v. Plano ISD)

Questions of literature distribution by students can be complex. They call for a balancing of rights and more than a dollop of common sense. Obviously, minors do not have an unfettered right to pass out just anything in schools. And when the material distributed is food, health issues come in to play as well, since many children today have allergies to certain foodstuffs. Public schools, like the one in Plano, have the right to craft reasonable policies to deal with these issues.

Religious Right groups are seeking open access to captive audiences of public school students and are not above using children as proselytizing agents. It looks like their gambit has failed once again.

The Supreme Court takes the summer off and comes back in session on Oct. 4. Chances are we’ll have a new justice then. One church-state case is already on the docket. Arizona Christian School Tuition Organization v. Winn deals with a voucher-like religious school subsidy plan in Arizona.

Stay tuned.


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