Bush or Gore Supreme Court appointees could rewrite church-state policy

Posted: Friday, October 20, 2000

NEW YORK (AP) -- During the first presidential debate, Al Gore said the Constitution ''ought to be interpreted as a document that grows with our country and our history,'' while George W. Bush countered that the Supreme Court shouldn't supplant legislatures and ''use the bench to write social policy.''

What will the candidates' views mean for Supreme Court rulings on church and state if, as expected, the next president names up to three new members? Two justices have survived cancer scares; three are 70 or above. The oldest, 80-year-old John Paul Stevens, has consistently voted to limit government accommodation of religion, court-watchers say.

The next appointments will ''make a huge difference for the far future'' because the court is so narrowly divided on so many religiously contentious matters, says American Jewish Congress attorney Marc Stern, who favors strict separation of church and state.

For instance, the candidates flatly disagree on vouchers to support pupils in religious schools. So analysts on both sides say a single Bush appointee could make vouchers legal while Gore justices might prevent this.

The issue for the Supreme Court in such cases is the First Amendment's prohibition of ''an establishment of religion.'' The justices must also interpret the constitutional guarantee of ''free exercise'' of faith.

Over the past 15 years, the court has inched toward accepting public aid to religious schools. Justice Clarence Thomas' plurality opinion last June allowing grants of computers and other equipment presented a sweeping pro-aid doctrine. But Thomas won only three supporters, so the court majority endorsed a more limited concept.

''You have five votes to go further, and certainly four to go a whole lot further,'' observes H. Douglas Laycock of the University of Texas School of Law. Since ''there's a limit to how much equipment you can shove into one school,'' the ''serious money'' involves vouchers, he remarks.

On school prayer, Stern says, the challenges usually arise in Southern states that oppose the Supreme Court's rules. Democrat-appointed justices generally favor these nationwide dictates while ''Bush will look for judges to interfere less with the states,'' he expects.

In a Texas case, Bush filed a brief defending the legality of student-led prayers and expressed disappointment when the Supreme Court voted 6-3 to forbid officially organized football game invocations. A spokesman said Gore opposes government-sponsored prayers and thinks pre-game invocations are ''not truly voluntary.''

A leading conservative, Michael W. McConnell of the University of Utah College of Law, thinks judges have all but settled this issue. The consensus forbids prayers authorized by school officials but lets students pray publicly on their own initiative -- for instance, in a graduation speech not cleared with the principal.

Stern says a case on the current Supreme Court docket typifies competing ''establishment of religion'' theories. At issue: Whether an elementary school must host a student Christian club if it lets other community groups use its building.

The answer is clearly no for those like him who think religion warrants special treatment, Stern explains. Others advocate equal treatment that gives religion neither special advantages nor disadvantages.

Then there are the numerous pending arguments over symbolism -- things like Ten Commandments displays in public places or religious words in state mottos.

Laycock thinks this area is ''a mess, because the court is unwilling to draw a bright line and simply say government shouldn't be in this business. A lot of folks would be unhappy, but you wouldn't continually have these cases popping up.''

Though Laycock favors such line-drawing in principle, ''I wouldn't change all the place names in the Southwest or call in all the coins'' emblazoned with ''In God We Trust.''

Republican-appointed justices have often voted to uphold public expressions of the country's religious heritage, but analysts emphasize that it's hard for presidents to tell what their appointees will do.

A Supreme Court decision on gay rights -- which could have a direct religious application -- is a case in point. In June, the justices in a 5-4 vote allowed the Boy Scouts to bar openly gay leaders. Again, a change of one justice could flip the result.

That narrow margin was a surprise to McConnell because the nation has a long tradition of ''vigorous freedom of association.'' If future Supreme Court appointees reject that tradition, he says, ''there's no obvious reason why churches would not be forced to comply with discrimination laws'' on hiring homosexuals or women clergy.

Until recently, there was such a reason. The court had traditionally interpreted the ''free exercise'' clause as shielding churches from government interference -- except in extreme situations where there was a ''compelling state interest.'' But a 1990 decision eliminated that strict standard, and the court later rejected an attempt by Congress to restore it.

Here's the twist, McConnell notes: That 1990 ruling was written by Justice Antonin Scalia and joined by Chief Justice William Rehnquist, both conservative Republicans who are usually friendly toward religious belief, while three liberal justices argued for stronger religious liberty.

So, while the election will determine the president who names the next justices -- and the Senate that approves all federal judicial nominations -- McConnell notes that in religious freedom disputes ''you find liberals and conservatives on both sides.''

End Adv for Friday, Oct. 20, and thereafter

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