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Battle of Separation of Church and State Rages On; Why Are American Men and Women Treated Differently When it Comes to Children Born Overseas?

Aired June 12, 2001 - 12:36   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The Supreme Court opens the public school doors to Christian gatherings, and launches another debate in the battle over the separation of church and state.

(BEGIN VIDEO CLIP)

REVEREND BOB SCHENCK, NATIONAL CLERGY COUNCIL: It's a very good decision for communities. Religious activity has been shown over and over again to be a very positive influence in the lives of young people.

BARRY LYNN, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE: It does not open the door to public school prayer, to Bible instruction during the school day. But it does, I think, open the doors, the back doors of the public schools to aggressive evangelism.

(END VIDEO CLIP)

COSSACK: Also today: When a child of an American is born overseas, why do the scales of justice view men and women differently?

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

On Monday, the nation's highest court ruled that a Bible study group will be able to use publicly funded school buildings to hold after-school meetings. The Supreme Court majority rejected the school's argument, which claimed that holding the Christian meetings would violate the separation of church and state.

Now, the Bible study group argued that the school was violating its right to free speech. In response to the court's decision, the school district officials are contemplating barring all groups from meeting on school grounds or changing the meeting times to make it difficult for them to meet.

Joining us today from Syracuse, New York: Frank Miller, who is the attorney for Milford Central School, and here in Washington, Thomas Marcelle, attorney for the Good News Club, which sued for meeting room access in a public school.

And in our studio: Barry Lynn, the executive director of Americans United for Separation of Church and State; Janet Larue from the Family Research Council, and constitutional law professor Nina Pillard -- and in the back: Keri Steffers (ph), Jenny Anne Thomas (ph) and Amber Elbert (ph).

Thomas, I want to go to you. You are the winning lawyer in this case. First of all, what were the facts in this case? Was this case a separation-of-church-and-state argument or was this a free speech argument? What did you initially address the court?

THOMAS MARCELLE, ATTORNEY FOR GOOD NEWS CLUB: We initially addressed the court as a free speech argument. We argued basically that the school, at 3:00, shut down, ceased to be a school, opened up its doors for the public come in and present youth activities for the community, and that they allowed the Boy Scouts and the Girl Scouts and the Daisy Scouts and 4-H Club. And the Good News Club wanted not unique access to the school, but on equal access with the other youth groups in the community.

COSSACK: But wasn't the difference between the Good News Club and the groups that you have mentioned was that the Good News Club was going to be teaching a religion -- the Christian religion -- and the other groups were not?

MARCELLE: Well, that's right. But I think what the -- the establishment clause would only be the bar to that. In other words, the Good News Club had a free speech right to talk about the Bible and religions and faith in God. And, certainly, the state cannot endorse a religion or promote a religion. But the state wasn't doing that in this case. They were being neutral. And that's all we wanted the state to be was neutral: to let us have equal access and not any preferential treatment.

COSSACK: Frank, you are on the other side. You had to argue for the school board. Did you argue that this was violation of the establishment clause, or were you prepared to argue that even if free speech applied, it didn't apply here?

FRANK MILLER, ATTORNEY FOR MILFORD CENTRAL SCHOOL: Well, we argued both actually, Roger.

We argued that it was violation of the establishment clause because the meetings took place exactly at 3:00, about three or four minutes after the end of the school day, while students were still assembled in the building, while instructors were still teaching or conducting extra classes and various other officially school-sponsored activities were occurring.

And we contended that the reverend conducting a religious- instruction class would be perceived as virtually indistinguishable from an instructor conducting an after-school exercise or an official club meeting or something of that sort.

We also argued that our rules with respect to the limited forum -- in other words, that we created a forum with certain rules and limits -- that this expression of religious instruction, religious worship, religious prayer, that that violated the rules we were mandated to live under New York law, specifically New York Education Law 414, which I think now, the court has addressed rather clearly. So we had argued both points.

COSSACK: But what about the report that the school district is now thinking of closing its doors or scheduling meetings for later in the afternoon, which, in some ways, would affectively eliminate the ability for these groups, all groups, to use the school?

MILLER: I have not heard that officially, Roger. In fact, I've had several conversations with the superintendent. And the superintendent has indicated that in light of the decision, they're going to look at what they need to do to bring their policy into compliance with the decision. That is what I understand them to be doing.

But even at the oral argument, Justice O'Connor suggested to me that, in particular, if the school was concerned about possible disruption or perhaps the appearance that the school might be endorsing religion by allowing its building to be used at times while official school activities were going on, the school has the right to close the forum to everyone for those hours -- for example, between hours of 3:00 and 5:00.

COSSACK: All right...

MILLER: So the school may consider that as legitimate option.

COSSACK: All right, Thomas, let me go back to you now.

You have been successful, but let us assume -- for the purposes at least of this discussion -- that the school says: You know, there's only one way to protect ourselves; we are just going to stop it across-the-board.

Would you then go -- would you go back to the court and say, "You can't do that"?

MARCELLE: No, I would not go back to the court and say, "You can't do that."

I think we recognize that local school boards have broad discretion on how to use their property. They can open it up; they can shut it down. but what they can't do is censure out religious speak and religious speakers from their public forums.

COSSACK: All right, let's take a break. Is the Good News Club ruling bad news for public spaces? Don't go away.

(BEGIN LEGAL BRIEF)

Members of the 1970's rock band The Eagles have dropped an infringement lawsuit against a nonprofit organization dedicated to saving the bald eagle. The band was suing over the Web address and telephone number the foundation was using.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: The U.S. Supreme Court is backing the Good News Club in Upstate New York, opening the door for religious meetings on public school grounds. But the jury is out on its reach into the separation of church and state.

Janet, let's talk a little bit. I know you're in favor of this decision, but let me give you some hypotheticals. What would happen here -- I mean, has this decision opened the door now because it's couched in free speech terms? I mean, suppose the devil worshipers want to show up and say, "You know what, you let the Christians in there, you let the Boy Scouts in there; we want to be in there, too"?

JANET LARUE, FAMILY RESEARCH COUNCIL: Roger, it's all about viewpoint discrimination. And what the court has clarified here is that religious speech is not an orphan under the First Amendment. We're not going to wall it up behind a church orphanage and not allow it out in the public square.

When you have opened the forum, even in a limited sense, and you say, "We will allow discussion on certain topics," you can't exclude viewpoints because you don't happen to like the group expressing the viewpoint. And so it becomes a matter of, if we're going to have a discussion, for example, on patriotism...

COSSACK: Right.

LARUE: ... and we're even going allow religious groups to come in and express their viewpoint even though it includes some religious expression, then you can't discriminate against the devil worshipers either. If they cross the line in some other way...

COSSACK: Klu Klux Klan?

LARUE: Ku Klux Klan, the 8th Circuit just ruled for them in the highway cleaning case. And I happen to think that's a great place to let the KKK go, is pick up trash on the highway. However, they said you can't exclude them just because you don't like them. When you've opened the forum, you must not discriminate based on viewpoint.

COSSACK: Barry Lynn, that is the -- I think that Janet's absolutely right. I mean, I think that is the holding and that is what this case stands for: the proposition now that all groups have equal accessibility based on freedom of speech to participate within the schools.

LYNN: Yes, I think it was a grotesque mistake, though. First of all, it's not viewpoint discrimination, as the New York law had set it up, to say: Look, we're not going to have any religious or political activity immediately after the school day in elementary schools. To me, that's the reasonable kind of regulation that a public -- limited public forum like this should have. Secondly, I think this does violate the principle that government cannot promote religion, because we have 5 and six-year-olds who are having spelling in the same classroom at 2:55 that they're having salvation lessons at 3:00. I don't think six years old are constitutional scholars, even if we assume that Justice Thomas is.

They can't tell the difference between the promotion of spelling by the school and the unofficial advocacy of religion by someone else, particularly when the wife of the minister who brought this case is a teacher's aide in the same school.

COSSACK: Janet, I'm not going to argue for you. I'm going let you make this argument.

LARUE: Roger, what Barry neglects to point out here is that no child can go into that club meeting without parental consent. And so it's up to the parents to determine whether or not they want the child involved.

There's no government endorsement of this club whatsoever; there's no state teacher participating. And Barry's point about just excluding religious speech altogether from limited public forum, the courts still looks at whether or not that's reasonable.

(CROSSTALK)

COSSACK: Let me Frank one question here.

LARUE: We're not going to presume it is reasonable.

COSSACK: Frank, let's assume that you're representing the school and you get application from the devil worshipers of Upstate New York to come in and hold some meetings about 3:30 in the afternoon and throw those doors open for children. What's your school going to do?

MILLER: Well, I think I'm going to have to do exactly what Janet said I was going to have to do. And that is, we're going to have to advise the client that they need to come in and they need to be permitted to use the building. And that is one of the dangers that this case creates, is that circumstance.

What we've done is, we've now federalized the issue of after- school use of school buildings. And we've made it now into a federal issue that's controlled by jurisprudence from the Supreme Court without people who are there in the local communities making those judgments and decisions about what's best for their particular school.

(CROSSTALK)

COSSACK: And, Janet, would say -- and I got to take a break -- but she would say that's the problem with that darn federal Constitution. But we got to take a break.

LARUE: You took the words out of my mouth.

COSSACK: Up next from the Supreme Court docket: a decision that had Justice Sandra Day O'Connor discussing the stereotype of male irresponsibility. Stay with us.

(COMMERCIAL BREAK)

COSSACK: So your child is born in Europe or Asia or Africa and you want to return home to the United States. Well, the process for citizen status of your child will depend on whether you're a man or a woman. Now, U.S. Supreme Court ruled 5-4 that a child born overseas to an unwed American father is not guaranteed U.S. citizenship. But children of American women in the same circumstances are almost automatically U.S. citizens.

In fact, here's what Justice O'Connor said yesterday: "Indeed, the majority's decision may itself simply reflect the stereotype of male irresponsibility that is no more a basis for the validity of the classification than are stereotypes about the traditional behavior patterns of women.

Nina, I'm not going to ask you if she was talking about the justices on the Supreme Court or not, but I will ask you this: The Constitution says that it is OK under circumstances to discriminate, to -- on terms of gender discrimination. And, apparently, what the court has said is that this is one of those times when it's OK. Tell us why.

NINA PILLARD, LAW PROFESSOR: Well, the court has said that you have to have an exceedingly persuasive justification for any sex-based distinction. And this is the first time in a generation that the court has found an expressed gender-based classification that it hasn't rejected under the Constitution, that it has upheld.

And I think it's really a throwback to a view of: Biology is destiny; that women, because of their role in the bearing of children, and the admittedly different role that women play bearing and delivering their children therefore are going to have a different relationship to the children as the children grow up.

The decision is about somewhat esoteric immigration law. But the stereotype that it embraces is one that's very central to sex equality in this country and abroad. And it basically says: We assume that women will -- biological mothers -- will have a close tie, an ongoing tie with their children. And we don't assume that for biological fathers.

COSSACK: Janet, this is a time when you find women's groups, who normally wouldn't support the people in this case, supporting the male in this case -- this has to do with an immigration case -- someone who is convicted of a sex offense and was. And women's groups were weighing in on their behalf because of the fear of gender discrimination -- unusual and your feelings?

LARUE: Well, it depends on -- we can't say that all feminist groups are monolithic. And the issue here of the court deciding a case that is a sad reflection, I think, on our culture, in that we've got adults who are engaging in conduct without thinking through the consequences of those acts, thinking through having sex. Is this going to result in the birth of a child, what's going to happen to this child instead yielding to the passion of the moment?

And the children born out of wedlock are a very serious problem in our country and in other countries as well. And so I would just encourage that the people who think about this case, look at this underlying issue here and the consequences to children as a result.

COSSACK: All right. That's all the time.

But, nevertheless, the Supreme Court has held 5-4 that if you are the child in these same circumstances of a mother, you have a much better chance of being an American citizen than you do of being a father.

Thanks to our guests. Thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.

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