This term, the Supreme Court may render its most significant decision with regard to the relationship between “church” and state in 25 years. On April 15, the Court will reconsider its 1985 decision in the case of Aguilar v. Felton. In that decision, the Court ruled that remedial education classes – to which all qualifying children are entitled by law – could not be provided by public school special ed. teachers in parochial school classrooms. Thus, for parochial school kids to receive such critical instruction, they must retire to temporary trailers located in the school parking lot.
The Aguilar decision unleashed a host of unintended consequences. It has cost public school systems hundreds of thousands of dollars to lease the trailers. It has diminished the quality of education that special ed. Students receive. It yielded the creation of the now famous Kiryas Joel Village School District; and the years of litigation over its constitutionality which continues today. All of this and more in the name of the constitutional mandate that Congress “shall make no law respecting the establishment of religion.”
Now, 12 years later, the Supreme Court has agreed to reconsider what havoc Aguilar wrought. This reconsideration is remarkable in several ways. First, the Supreme Court has not accepted a new case in which parties are suggested that the Court ought to overrule Aguilar (much like opponents to abortion rights argue for the overruling of Roe v. Wade in any abortion case before the Court); rather, it has decided to reconsider the ruling of Aguilar in Aguilar, through a procedural motion by which parties to a case may ask a court to reconsider its prior ruling due to changed circumstances or other considerations. Second, five of the sitting justices have explicitly advocated this reconsideration, while three have openly called for the reversal of Aguilar in prior decisions. Third, it clearly foretells a turning point in Supreme Court jurisprudence regarding the Establishment Clause.
Aguilar was a high point of the Supreme Courts reading of the Establishment Clause as a mandate to divide religion from the state by a wall of separation that is high and wide. Such an understanding might trace its modern lineage to the Courts 1971 decision in Lemon v. Kurtzman – another decision, not coincidentally, that has been criticized and maligned by a majority of the sitting justices and countless legal scholars almost as much as Aguilar. That decision produced the aptly named “Lemon test” which held that for state action to successfully survive an Establishment Clause challenge it must have a primarily secular purpose, neither advance nor inhibit religion and not excessively entangle government with religion. This stream of constitutional jurisprudence turned the Establishment Clause on its head – from a provision designed to ensure a religiously pluralistic society to a blunderbuss aimed at removing any religious presence from the “public square” and prohibiting any assistance to religious citizens or communities from the state even if such assistance is made generally available to all citizens upon the basis of neutral criteria.
While the more liberal elements of the American Jewish establishment – through the offices of the American Jewish Congress, the Anti-Defamation League and others – actively sought these outcomes in the Supreme Court, the Orthodox community consistently opposed them and continues to work to return the original purpose of the Establishment Clause. While we do not suggest that the state should be permitted to establish or endorse a particular religion, we do contend that the Establishment Clause permits government support of religious communities and citizens in a manner comparable to the government support given to agnostic and atheist communities. The contention that government must remain “neutral” toward religion is inappropriate in the context of the modern state. In our highly regulated society the failure to offer special protections for religious devotion is to ensure that the faithful will suffer additional burdens as the price of fidelity to their faith, rather than the special protection the Establishment and Free Exercise clauses of the Constitution were designed to provide.
While the several sitting justices have roundly criticized the Lemon test, it is clear that a new standard could not be agreed upon by five justices required to replace it. The Supreme Courts invitation and, now clear intention, to revise Aguilar, however, suggests that we are at a significant constitutional moment; one in which the Court is likely to review its past tortured readings of the Establishment Clause and begin to steer its course back to a sensible middle ground that the Constitution’s framers intended all along. That middle ground recognizes that religion is not a scourge to be denied any aid or comfort by that state; but that religious citizens are as equally entitled to full participation in our civic life on their own terms just as much as any other group of citizens. In short, we may soon have a constitution that once again guarantees freedom for religion rather than freedom from religion; and not a moment too soon.