The Year in Review: Law and Religion in 2005,
From "Intelligent Design," to the Ten Commandments, to Supreme Court Staffing Changes, to Clergy Child Abuse Developments

Over this past year, the intersection of law and religion (and politics) took center stage in the United States. In this column, I've provided what I think are the top ten "highlights," in no particular order.

Interestingly, one thing the list shows is that despite the proven ability of conservative Christians to set the public agenda for debate, they have not been terribly successful in ultimately altering the law to fit their world view.

Highlight Number One: The movement to introduce "intelligent design" into the public school science curriculum failed when a federal judge in Dover, Pennsylvania, ruled that it was not science, but merely a re-introduction of creationism -- and that it was, therefore, a straightforward violation of the Establishment Clause.

The opinion, by a conservative Bush appointee, is well-reasoned and sound: Among other points, it chastised the school board for its transparent move to get Christian teachings into the public school curriculum. (Meanwhile, on the political side, the pro-intelligent-design members of the relevant school board also lost their jobs in the November elections, apparently on this very topic.)

Highlight Number Two: The United States Supreme Court ruled, in McCreary County v. ACLU, that when the Ten Commandments are posted in a courthouse with an accompanying pro-Christian resolution, the posting constitutes an official endorsement of religion and is therefore unconstitutional.

Yet at the same time, in Van Orden v. Perry, the Court held that the display of a Ten Commandments monument at a state capitol - when the monument had been donated by a philanthropic group, and when there was no overt government endorsement of religion - was constitutional. Surprisingly, the swing vote was Justice Breyer, not Justice O'Connor.

Highlight Number Three: In Cutter v. Wilkinson, the Supreme Court upheld the institutionalized persons provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which subject prison regulations to strict scrutiny if there is a substantial burden on a prisoner's religious exercise. This case would have been a blockbuster in the Establishment Clause arena, because the accommodation is blind in the sense that it covers scores of regulations never even contemplated by Congress. But the decision, in the end, meant very little, because it mandated, on the basis of legislative history, that Congress intended the courts to defer to prison authorities' expertise and asserted interests. The Court's interpretation meant that RLUIPA mandated a standard of review with considerably less bite than strict scrutiny in the constitutional context, as I discussed in a prior column, and, the accommodation was de minimis.

Highlight Number Four: Judge Williams, the federal bankruptcy judge in Spokane, Washington, who is presiding over the Spokane Diocese's bankruptcy, issued a landmark opinion in which she held that the First Amendment did not permit the Diocese to determine property ownership solely according to canon law. Instead, she ruled, religious entities filing for federal bankruptcy, like all others, must have the issue of property ownership determined by neutral, generally applicable property laws. The question arose because the Diocese was attempting to reduce the size of the estate available to clergy abuse victims.

Highlight Number Five: The Supreme Court heard oral argument in the O Centro case, involving the question whether a South American-based religious group, the UDV for short, could use the Religious Freedom Restoration Act (RFRA) to avoid the federal Controlled Substances Act. The UDV wanted to follow its practice of using an illegal drug, DMT, in their religious ceremonies, without fear of prosecution. As I discussed in another column, the religious group's arguments do not seem as strong as those on the other side.

(On the political side, Jewish and conservative Christian groups filed briefs in favor of the UDV's use of illegal drugs. Illustrating once again the knee-jerk preference for accommodation in this society, and the concomitant abandonment of the public good, which I document in my recent book, God vs. the Gavel: Religion and the Rule of Law, these groups did not ask the obvious question whether this group permits children to take the drugs during services - a factor that would seem to cut strongly in favor of enforcement of the law here. Adherents in South America, via email, informed me that children do, indeed, take the drug during services.)

Highlight Number Six: Justice Sandra Day O'Connor announced her retirement for family reasons, a move that opened the door for the President to attempt to push the Court to shift directions with respect to abortion and the Establishment Clause. Within hours of O'Connor's resignation, the Becket Fund issued a press release expressing its delight that she would be stepping down, because of her views on the Establishment Clause.

O'Connor, for whom I served as a law clerk, was the swing vote on many cases and introduced what is in my view -- and that of many other commentators -- the best modern innovation in the area, the "endorsement test," which prohibits the government from endorsing any one religious viewpoint, because endorsement excludes other citizens. This element of the doctrine takes into account the tremendous diversity among religious faiths in the United State.

But if Judge Samuel Alito, nominated to fill her position, is confirmed to the Court, he is likely to push the Court away from any meaningful separation of church and state, and toward what I would call the equality theory, which requires that religious groups are treated at least as well as other groups and in favor of government expression that supports Christianity. There is a clear choice: inclusion of all believers or exclusion, and Alito may well push the jurisprudence toward the latter. That would mean reversing some of the progress for which O'Connor deserves credit in this area.

Highlight Number Seven: Now-Chief Justice John Roberts replaced Chief Justice Rehnquist, for whom he clerked. The net result in the religion cases will likely be minimal - for Roberts's votes and positions are likely to track Rehnquist's closely.

Highlight Number Eight: In the Melanie H. case, a federal court in San Diego upheld California law 340.1, which opened a one-year window in 2003 for clergy abuse victims to sue institutions that caused their harm - for instance, dioceses that recklessly or knowingly hid the identity of a pedophile and assigned that pedophile to positions with easy access to children.

The Catholic Church had argued that the law specially targeted the Church, in violation of the Free Exercise and Establishment Clauses, because it was passed in the wake of the revelations that the Church had covered up child abuse by its priests in many cases. That argument, however, had no merit: The law is, in fact, neutral and generally applicable, and applies to any organization contributing to child abuse, from day care centers, to the Boy Scouts, to any religious organization.

Accordingly, the court rightly held that the law passed muster under the Free Exercise Clause. (Moreover, the court also held, again correctly, that the Church's actions regarding child abuse were not based in religious belief or practice and, therefore, the Religion Clauses simply did not apply.)

Highlight Number Nine: The beat went on in other major church/state cases. Cities continued to be pelted with claims under the land use provisions of the Religious Land Use and Institutionalized Persons Act, which gives special privileges to religious landowners to overcome the land use laws that govern everyone else, as I have discussed in previous columns such as this recent one. And a district court in the Ninth Circuit held that "under God" in the Pledge of Allegiance was unconstitutional in the classroom, but not at a school board meeting.

Highlight Number 10: Conservative Christian organizations successfully pressured Congress and the President to enact legislation for the parents of Terri Schiavo, so that they could continue to challenge the many decisions in the Florida state courts holding that her feeding tube could be removed, as I discuss in a previous column. Despite the politicians' willingness to cater publicly to their cause, the resulting legislation was toothless, and the court's order permitting the removal of the feeding tube was carried out.

It will remain to be seen whether a newly configured Supreme Court will alter Religion Clause jurisprudence dramatically. What is for certain, is that the culture wars over religion are far from over.