THE Supreme Court hears arguments Nov. 6 in a case that offers a
clear opportunity to redraw the line that separates church and
Supreme Court decisions in recent years indicate that most of
the justices may be ready to take that opportunity to relax
church-state separation in some degree.
The case is Lee v. Weisman, a lawsuit challenging a prayer
offered by a rabbi at a public middle-school commencement ceremony
in Rhode Island.
Of all the cases on the Supreme Court docket so far this year,
many legal scholars see this one as the most likely vehicle for a
major shift in court doctrine.
A district court and federal appeals court have each ruled the
rabbi's prayers to be an unconstitutional "establishment" of
religion by government.
But the lower courts used the reigning definition of
"establishment" set by the Supreme Court 20 years ago. More recent
opinions of the justices show erosion in support for this
If a new doctrine of church-state separation emerges from Lee v.
Weisman, which should be decided by next summer, "it will
undoubtedly be more permissive to the state," according to Neal
Devins of William and Mary law school in Williamsburg, Va.
The court's reading of the constitutional guarantee of the free
exercise of religion - the close twin of the establishment ban -
was radically altered in 1989. In a case that involved native
Americans who use the drug peyote in traditional rituals, the court
ruled that government policies not aimed at restricting religious
practice could be constitutional even if they in fact infringed on
the free exercise of religion.
Schools bear brunt
The greatest impact of the Lee v. Weisman case will be felt in
schools. The largest category of church-state court cases concerns
state aid to private schools, says Mr. Devins. The next-largest
category concerns religion in public schools.
School officials should be able to draw some new guidance from
the decision, even if the court avoids drawing new guidelines and
merely upholds the prayer as an insignificant ceremonial gesture.
The message would then be that the court is simply not too
concerned about church-state entanglement, says Devins, so schools
need not worry too much about it either.
Currently, public prayer is not allowed in public schools or
comparable government enterprises.
In 1985, the court struck down a statute in Alabama that created
a moment of silence "for prayer" in public schools. But the court
majority suggested that a more neutral moment of silence could
still pass constitutional muster if it did not explicitly encourage
Strict modern establishment-of-religion doctrine was set in a
1971 Supreme Court decision in Lemon v. …