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Religious-freedom advocates welcome outcome, but say it has limited applicability for high-stakes HHS mandate challenges or most parish-based Catholic religious-education programs.
BY JOAN FRAWLEY DESMOND
WASHINGTON — In a blow to advocates of strict separation of church and state, the U.S. Supreme Court denied an appeal in a First Amendment case that challenged a state public-school program that accommodated students’ religious beliefs.
On Nov. 13, the high court rejected a request for an appeal in Moss v. Spartanburg Co. School District Seven, after a federal appeals court in July backed a lower-court ruling that favored the South Carolina school district, which allowed high-school students to take off-site religious-education classes and receive academic credit. In 2009, the Freedom From Religion Foundation and two parents in the Spartanburg school district filed a legal challenge to South Carolina’s policy of allowing “release time” instruction for evangelical students.
Eric Rassbach, the deputy general counsel for the Becket Fund for Religious Liberty, who defended the school district, expressed relief that the high court rejected the appeal. But he stressed that the outcome had little significance for the rising number of legal challenges to the federal contraception mandate from the Department of Health and Human Services or other closely watched First Amendment cases.
“In this case, the plaintiffs were challenging government accommodation of a religious practice: The government was doing the right thing, and the Freedom From Religion Foundation was trying to stop them from doing the right thing,” said Rassbach.
“In the HHS mandate cases, the government is doing the wrong thing, and the plaintiffs are suing under the Free Exercise Clause to stop the government from doing the wrong thing.”
The Freedom From Religion Foundation is a nonprofit organization that describes its mission as working to “educate the public on matters relating to nontheism and to promote the constitutional principle of separation between church and state.”
According to information posted on the group’s website, its membership rolls boast the “nation’s largest association of freethinkers (atheists, agnostics and skeptics), with over 18,000 members.”
Richard Garnett, a professor and associate dean of the University of Notre Dame Law School, said the high court’s rejection of an appeal in the case “is an important decision and a welcome one.”
But Garnett added that “it would be a mistake to read any big-picture significance into what the court did, and I think it says almost nothing about the HHS cases.”
That said, he suggested that the denial of appeal “confirms that, over the last 20 years or so, there has been a move in First Amendment doctrine away from 'strict, no-aid separationism' with respect to religion and toward neutrality and equal treatment.”
Amid a growing current of aggressive secularism that seeks to constrain the public role of religious institutions, the case’s outcome “reminds us that the education … provided by religious and parochial schools is not suspect or second-class,” said Garnett, who blogs at Mirror of Justice.
Catholic education, he said, “serves the ‘secular purpose’ of forming and preparing young people, just as the education provided in government-run schools does.”
Dominican Sister John Mary Fleming, executive director of the Secretariat of Catholic Education for the U.S. Conference of Catholic Bishops, echoed Garnett’s remarks in her response to a request for comment.
“In principle,” said Sister John Mary, the bishops’ conference was “very happy and supportive of a decision in favor of parents being able to choose the most appropriate … way that religious education can be delivered to their child.”
But the case’s “applicability to Catholic religious-education programs is a different matter,” she added.
“Generally speaking, the structure of our programs is different than the requirements of this [South Carolina] law, which allows children attending public schools to have release time to attend a religious-education program.”
Today, she noted, many Catholic students receive their religious education at a Catholic school, while others are involved in parish-based youth-ministry programs. She said that Catholic catechetical materials generally receive accreditation from the local diocese, and Church leaders would not seek accreditation from the state.
Maria Aselage, a spokeswoman for the Diocese of Charleston, confirmed that the diocese "was not involved in the litigation."
"Currently, there are no Catholic parishes or schools in the diocese that offer off-campus religious education courses for school credit,” said Aselage, who nevertheless described the outcome of the case as a "postive step."
Not a Signal
Gerard Bradley, a constitutional scholar at Notre Dame, who has followed Moss v. Spartanburg since 2009, told the Register that he was not surprised that the high court declined to hear the appeal.
Bradley described South Carolina’s program as a “variation of the ‘released time’ programs which the court first upheld in 1952, in Zorach v. Clausen, a New York case. That was about the very familiar ‘release’ of public-school kids early so that they could take what we would call CCD at a nearby Catholic school” — though the practice was not limited to Catholics.
What is distinctive about the South Carolina program, he suggested, is that “it seems to involve Protestants mainly, if not exclusively, and involves the public schools awarding academic credit for religion classe taught off-site.
Bradley argued that the “lower court rightly analogized this unusual practice to when public schools recognize credits for religion classes whenever a child transfers in from a religious school.”
Establishment Clause Challenges
Moss v. Spartanburg is one of many legal challenges filed by the Freedom From Religion Foundation that raise questions about perceived violations of the Establishment Clause.
Most recently, in the wake of the 2012 election, the organization filed suit in U.S. District Court for the Western District of Wisconsin against the Internal Revenue Service, charging that “its failure to enforce electioneering restrictions against churches and religious organizations” violated "the Establishment Clause of the First Amendment and of FFRF’s equal-protection rights.”
“Many sources indicate the IRS has not taken action against electioneering churches for three years. As many as 1,500 clergy reportedly violated the electioneering restrictions on Sunday, Oct. 7, 2012,” stated an announcement released by the group.
The Becket Fund’s Eric Rassbach agrees that the outcome of Moss v. Spartanburg offers little guidance on how the high court will likely approach legal challenges to the federal contraception mandate.
But he still believes that the case is important because it reminds Americans that “there are groups that want to treat religious entities as if they need to be under quarantine. There is something infectious that needs to be contained.”
“The conflicts that are going on in American society and the courts are not just a sideshow,” said Rassbach. “This is a fundamental struggle of two different worldviews, and one side wants to exclude religion from American society.”
Joan Frawley Desmond is the Register’s senior editor.