Okay, so we were stunned by the Supreme Court’s decision on the Affordable Care Act (“Obamacare”) last Thursday. And we are not alone. A dear friend of mine reminded me that God is still on His throne. I consoled and comforted myself with the words from the prophet Daniel, where in chapter 2 and verse 21, we read the following: “He controls the course of world events; he removes kings and sets up other kings. He gives wisdom to the wise and knowledge to the scholars.” On Friday, one of my former law students wrote to me asking, “Was Chief Justice Roberts a traitor? A genius?” Even though I do have a point of view on the matter, I didn’t respond to this part of his email, but suggested we talk about it over coffee.
Nevertheless, Dr. Krauthammer observed that the decision by Chief Justice Roberts regarding Obamacare was an act of “ultimate finesse.” Perhaps so, but I am not sure about that as I am sometimes lack in subtlety. But we will see whether, as Peggy Noonan wrote in The Wall Street Journal this past Saturday, Chief Justice Roberts’ Obamacare decision will awaken the conservative base in the United States, whom Ms. Noonan described as “angry as hornets, loaded for bear, and fully awake.” But at least the entertainer Cher offered to kiss Justice Roberts for his decision. (incidentally, I recently heard that thirty percent of those who are either members or regularly attend conservative churches are not registered to vote. If this is true at your church, parish or synagogue, please encourage your friends and family who are not registered to vote to do so as soon as possible.)
Nevertheless, there is some good news from other courts. First, a New York federal district court ruled late last week issuing a permanent injunction requiring New York City’s Board of Education to stop discriminating against churches that sought to rent school facilities for weekend use on the same basis as other community groups. This was an important victory because for seventeen years, the Board of Education for New York City sought to deny churches their First Amendment right of equal access to public school facilities that were otherwise available to community groups and other local organizations.
Without any sense of irony, the Board of Education argued in court that religious services held in public school buildings represented a threat to the minds of “impressionable youth,” and claimed that young students would deem the views presented during a religious service were also the official views of the state, since both school and church meet in the same building. Importantly, while it can be expected that the Board of Education will appeal to the Court of Appeals, amicus curiae briefs in support of equal access were filed by the Christian Legal Society (of which I am a member), American Bible Society, National Society of Evangelicals, Council of Churches of the City of New York, Brooklyn Council of Churches, Queens Federation of Churches, American Baptist Churches of Metropolitan New York, National Council of the Churches of Christ in the USA, General Conference of Seventh-day Adventists, and the Ethics and Religious Liberty Commission of the Southern Baptist Convention. I am sure that there will be more fireworks on this matter in the years to come.
Second, also late last week, the Federal Fourth Circuit Court of Appeals in Richmond, Virginia, unanimously upheld the constitutionality of a public school district accepting elective credits for religious studies for high school students participating in a release time program in Spartanburg, South Carolina. That might not sound like much of an important victory, but the elective credits were challenged by the Freedom From Religion Foundation as a violation of the “establishment of religion” clause of the First Amendment. For more than fifty years, federal courts have routinely found that off-campus release time activities do not violate the Constitution by promoting religion, but merely accommodates the freedom of choice for both students and parents. Dr. Russell Booker, superintendent of Spartanburg County School District No. 7, said upon issuance of the court’s opinion, “We are very pleased by the outcome. We are especially pleased that the Court recognized that the District has conscientiously complied with the Constitution in carrying out its mission of educating Spartanburg’s children.” If you wish to contact Dr. Booker to thank him for not buckling under the threats and pressure from the Freedom From Religion Foundation, you may write to him at email@example.com. As you know, few educational leaders would have taken Dr. Booker’s strong stand.
It was widely expected that if the establishment clause challenge had been successful in this case, then the acceptance by public schools of academic credit for students transferring from religious private schools was likely to be challenged next. Amicus curiae briefs were filed in this case by the Christian Legal Society, National Committee for Furtherance of Jewish Education, National Association of Evangelicals, Advocates for Faith and Freedom, as well as the Attorneys General of South Carolina, Virginia, Alabama, Colorado, Florida, Louisiana, Michigan, Nebraska and Oklahoma. If you support any of the above organizations, kudos to you! If you don’t, then I would encourage you to prayerfully consider doing so.