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October 15, 1999/5 Cheshvan 5760, Vol. 52, No. 7
High court decides to keep hands off church-state rulings
DANIEL KURTZMAN
Jewish Telegraphic Agency
The U.S. Supreme Court has decided to sidestep several mines on the church-state battlefield. In a flurry of action Tuesday, Oct. 12, the justices let stand Maine's school voucher program, left intact a ruling striking down New York's attempt to create a special school district for a community of Hassidic Jews, and refused to let Pennsylvania exempt religious publications and Bibles from sales taxes.
While none of the moves set precedents, some legal analysts said that by declining to hear the cases the justices appear to be signaling a reluctance to make sweeping changes affecting the separation of church and state.
For its 1999-2000 term, the court so far has agreed to hear only one major church-state case, which involves the constitutionality of aid to parochial schools. The case stems from 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. The court is expected to clarify what has become a nebulous area of law.
But beyond that, the justices have elected to dodge a number of burning church-state questions in the lower courts.
On the voucher issue, the justices decided for a second year in a row not to enter into the fray. After leaving intact Wisconsin's voucher program in its last term, the court this week upheld a Maine law that subsidizes children attending private, non-religious schools, but bars the state from paying tuition for students at religious schools.
Acting without comment or dissent, the justices rejected an appeal brought by parents of religious-school students who accused the state of violating their rights by withholding the same financial help that is available to students attending non-religious schools.
Maine's voucher program, created in 1981, has consistently excluded religious schools. Unlike programs in Milwaukee and Cleveland, which give parents tuition vouchers to use at the school of their choice, Maine sends tuition payments directly to the schools.
In the New York case, legislators had attempted to form a special school district for Kiryas Joel - a village about 45 miles northwest of New York City whose residents are all Satmar Hassidim. The New York Court of Appeals in May struck down the law establishing an autonomous school district for Kiryas Joel. That ruling marked the third time such an attempt was struck down by the courts.
The ruling by the Court of Appeals said that the creation of a special district "has the primary effect of advancing one religion over others and constitutes an impermissible religious accommodation."
Orthodox Jewish groups were dismayed that the court decided not to hear the case. Nathan Diament, director of the Orthodox Union's Institute for Public Affairs, said he was disappointed that the court "failed to take on the argument asserted by Kiryas Joel's opponents that a law can be unconstitutional simply because a community of religious believers benefits from it."
"This can't be what the Constitution stands for," he said. "We hope we will find an opportunity to correct and clarify this message very soon."
It remains to be seen whether the New York Legislature will take a fourth stab at carving out a separate district.
On the issue of taxing the sale of religious items, meanwhile, the court left intact rulings that struck down Pennsylvania's practice of exempting religious publications, Bibles and religious articles sold by religious groups.
The Pennsylvania Supreme Court and a state trial court ruled that the tax exemption was unconstitutional after two state residents sued, charging that the exemption violates the separation of church and state.
Daniel Kurtzman writes from Washington, D.C.
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