Back to The Religion Clauses

This time the murky First has forced the closure of the Teen Ranch a few miles north of Detroit. Founded in 1966, the ranch is non-denominational but pervasively Christian. Until it folded 18 months ago, it had provided
custody — and 40 years of spiritual guidance — to roughly 4,000 boys and girls adjudged to be juvenile delinquents. It is one of 96 child-care agencies that provide residential child care through Michigan's juvenile courts. Thirty-five of them are faith-based, but only the Teen Ranch is pervasively so.


The ranch's problems go back to 1996 when Congress authorized the states to contract with faith-based organizations to provide various social services. The guidelines mandated an opt-out provision: Any ward of the state who objected to religious indoctrination could reject his placement and get reassigned. In actual practice, it apparently wasn't that easy.

In its petition to the Supreme Court, the Teen Ranch makes its position clear: "It has openly advertised its religious orientation and has unapologetically incorporated religious programming into the services it provides, but it does not mandate participation in any religiously themed activities...

"Teen Ranch, as policy, does not 'force' youths to attend religious services, although it is encouraged and we believe to be part of an effective treatment program. Alternatives are provided for the children who wish not to attend religious services, such as a personal academic study time (if desired), recreational time in the gymnasium, or watch television until the other youths return."

These concessions failed to satisfy Michigan authorities. When efforts at compromise failed, the state stopped assigning delinquent boys and girls to the Teen Ranch. Faced with abandoning its principles or its prime support, the ranch shut down. U.S. District Judge Robert Holmes Bell refused to suspend the state's decision; the 6th U.S. Circuit affirmed in a brief opinion. Now it's up to the Supremes.

Will the high court take the case? Hard to say. Three precedents are pertinent.

Seven years ago, in a case from Santa Fe, N.M., the court split 6-3 in coming down against a custom that most persons probably would regard as innocuous: Before the start of every home football game, the home team would huddle on the 50-yard line. Using the public address system, a student volunteer would then say a brief prayer for good sportsmanship, no injuries, and God save America.

Justice John Paul Stevens ruled that the invocation "unquestionably" violated the Establishment Clause. The prayer "had the improper effect of coercing those present to participate in an act of religious worship." Non-participants would suffer "serious constitutional injury." Chief Justice William Rehnquist vainly objected that Stevens "bristled with hostility to all things religious."

Two years later Rehnquist was on the prevailing side of a 5-4 split in sustaining a program in Cleveland. There the public schools had foundered so badly that affected parents were offered grants to transfer their children to private schools — including Catholic parochial schools. Some 3,700 pupils signed up, 97 percent of them opting for the parish alternative. In upholding the program, Rehnquist found nothing in the First Amendment to forbid it. The relevant public funds did not go directly to the schools, but to the parents. The program did not advance religion; it advanced education.

Justice Stevens again erupted. In dissent he found the chief justice "profoundly misguided." His colleagues in the majority were removing "a block from the wall that was designed to separate religion and government." Justice David Souter said his colleagues' opinion was "profoundly at odds with the Constitution."

Three years ago, in a case from Washington state, Rehnquist spoke for the court in ruling the other way. Here the court held that the state could not award a scholarship to a student who wanted to pursue a degree in divinity at a sectarian college. Justices Scalia and Thomas mildly dissented.

Since that opinion in 2004, Chief Justice John Roberts and Justice Samuel Alito have come aboard. Justices Stevens, Souter, Ginsburg, Breyer and Kennedy remain at the wall of separation. My own sympathies are with the Teen Ranch. But I wouldn't bet that way.

(Letters to Mr. Kilpatrick should be sent by email to kilpatjj@aol.com.)

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