High Court Could Relax Church-State Line

Article excerpt

THE Supreme Court hears arguments Nov. 6 in a case that offers a clear opportunity to redraw the line that separates church and state.

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 definition.

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 prayer.

Strict modern establishment-of-religion doctrine was set in a 1971 Supreme Court decision in Lemon v. …

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