Weighing the Court

In the term just ended the Supreme Court decided an unusual number of cases with relevance to the religious and moral state of the nation. Specifically it:

• forbade students in Texas to recite public prayers before high-school football games;

• struck down a law forbidding partial-birth abortions;

• approved the use of public money to buy computers for students in private schools;

• ruled that the Boy Scouts of America may exclude homosexuals from serving as scout masters; and

• forbade a public school district to issue a disclaimer whenever the theory of evolution is taught.

You win some, you lose some.

In the case about evolution, the school district required that, wherever the theory of evolution is taught, students should be told that it is taught only as scientific theory and is not intended to undermine other explanations of the universe. The lower courts thought this was a ploy to promote biblical creation.

To most Catholics the teaching of evolution is not a problem, but many Protestants find it contrary to their faith, and some evolutionists agree with them, holding that the idea of evolution makes impossible any belief in a benign creator.

Whenever it deals with evolution, the Court in effect inhibits free expression. No one now urges that evolution be banned from the curriculum, but the Court insists that it be given a protected place.

The school prayer case was filed by Catholics and Mormons, who complained that the religious tenor of their school was Baptist. The school responded by authorizing students themselves to decide whether they wanted some public expression at football games, what it should be, and who should speak. The Court found that this constituted “endorsement” of prayer by the school.

Chief Justice William Rehnquist accused his brethren on the Court of hostility to religion. The schools are supposed to be neutral, but religion is just about the only thing that public schools are forbidden to “endorse.” Controversial political opinions, or ideas about sexual behavior, are seen as free expression.

The decision allowing some public aid to private schools is part of a slow move the Court has been making away from its most extreme idea of separation of church and state, away from the most rigid of past decisions based on a “wall of separation,” which the Constitution does not mention.

The Boy Scout case is important for protecting the rights of parents who do not wish their children to be guided by homosexuals and of private groups, especially churches. Citizens may retain their moral principles in the face of a determined effort to erase all objections to homosexuality.

I would have been willing to lose all the other cases if the Court had ruled otherwise on partial-birth abortion. As a friend pointed out, the only silver lining in that cloud is that defenders of abortion now virtually admit that it is not really different from infanticide. The invalidated law forbade abortion in the late stages of pregnancy, when the fetus is recognizable as a child, and when it is aborted by a gruesome procedure that its defenders try to conceal.

The Court’s vote—five to four, as often in the past—again reminds us that we are tantalizingly close to winning the constitutional battle. There will probably be several retirements from the Court over the next few years, and everything depends on who the next president is and what he does.

—James Hitchcock, for the editors

James Hitchcock is Professor emeritus of History at St. Louis University in St. Louis. He and his late wife Helen have four daughters. His most recent book is the two-volume work, The Supreme Court and Religion in American Life (Princeton University Press, 2004). He is a senior editor of Touchstone.

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