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Supreme Court returns to knotty church-state issues

Published Oct. 12, 2005

The U.S. Supreme Court opened its new term Monday by jumping back into the tangled bramble bush of church-state relations and the sometimes seemingly competing demands of the Constitution's First Amendment.

In announcing 65 cases it will consider during the term that runs until the end of June, the court said it will hear two key cases involving religion. One involves the use of public funds to pay for a sign-language interpreter for a student in a parochial school. The other involves the use of a public school auditorium by an outside religious group.

The two cases join a third case involving the animal sacrifice practices of the Santeria religion that the court had already agreed to hear.

Rulings in the three cases could spell out new standards for the way in which government relates to _ and regulates _ religion and the extent to which it can support religious practices.

The First Amendment to the Constitution contains two clauses involving religion: The Establishment Clause, forbidding government to set up a state religion or provide assistance to one religion over another, and the Free Exercise Clause, which bars government from interfering in the practices of religious bodies.

Since 1971, laws involving the Establishment Clause have been governed by what is known as the Lemon test, following the court's ruling in the case Lemon v. Kurtzman. Under that standard, a state action must have a secular purpose, a primary effect that neither advances nor hinders religion and does not foster excessive entanglement between government and religion.

In the handicapped-aid case, Zobrest v. Catalina Foothills School District, the justices are being asked to decide whether the Constitution permits public financing for a sign-language interpreter to accompany a deaf child to class in a parochial school.

It comes at a time when some justices, notably Chief Justice William Rehnquist and Justice William Kennedy, have questioned the Lemon standard and urged that it be abandoned. Kennedy has argued that the Establishment Clause is not violated unless people are coerced into a religious practice by the state.

Last year, in one of its principal church-state cases, Lee v. Weisman, the court held that prayers at graduation ceremonies are contrary to the Establishment Clause, with Kennedy concluding that the prayers failed both under the Lemon test and his more relaxed coercion test.

But Zobrest offers a case that appears to involve non-preferential, "secular" assistance to religion and does not involve coercion.

In the other case accepted Monday, as well as the Santeria case, the court will wrestle with the Free Exercise Clause and the limits on governmental interference with religious practice.

This area of church-state law was thrown into turmoil with the high court's ruling in 1990 in the so-called "peyote" case, Oregon v. Smith.

In that decision, nearly unanimously condemned by the religious community, the justices held that prohibiting Native Americans from using peyote in their religious rituals does not violate their constitutional right to free exercise of religion.

Of all the court's recent rulings in the church-state area, none has panicked the religious community as has Smith. In the ruling the court abandoned the historic test that the state must show a "compelling interest" before regulating religious practices. Instead, the court established a new standard making it significantly easier for government to justify restrictions on religion.

As a result of the Smith decision, a broad spectrum of religious groups have been pushing for legislation that would restore the "compelling interest" standard, but it appeared likely that Congress would adjourn before acting on the measure.

In the Santeria case, Church of the Lukumi Babalu v. City of Hialeah, the court must decide whether the city can ban the killing of animals for ritual purposes. Such ritual killing of animals, such as chickens, is central to followers of Santeria, a Caribbean religion with African roots.

In a case the court will rule on this term, Lamb's Chapel v. Center Moriches School District, the justices are being asked to decide whether a policy of excluding outside religious groups from using the schools after hours is "censorship of religious speech."